. 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 X & WASHBURN 
 
 ORXEYS AT LAW 
 Wilcox Building 
 l,os Augeles, Cal.
 
 CASES 
 
 ON 
 
 THE GENERAL PRINCIPLES 
 
 OF THE 
 
 LAW OF 
 PRIVATE CORPORATIONS 
 
 SELECTED AND ARRANGED WITH NOTES 
 
 BY 
 
 HORACE L WILGUS, M. Sc. 
 
 Ml 
 Professor of Law in the University of Michigan 
 
 IN Two VOLUMES 
 VOLUME 1 
 
 "A substantial and compendious report of a case rightly adjudged doth produce 
 three notable effects ; first, it openeth the understanding of the reader and hearer; 
 secondly, it breaketh through difficulties ; and thirdly, it bringeth home to the hand 
 of the studious, variety of pleasure and profit ; I say it doth open the window of 
 the laws, to let in that gladsome light, whereby the right reason of the rule (the 
 beauty of the law) may be clearly discerned ; it breaketh the thick and hard shell, 
 whereby with pleasure and ease, the sweetness of the kernel may be sensibly 
 tasted, and adorneth with variety of fruits, both pleasant and profitable, the store- 
 houses of those by whom they were never planted nor watered." 
 
 LORD COKE, in Preface to gth Report. 
 
 INDIANAPOLIS 
 
 THE BOWEN-MERRILL COMPANY 
 1902
 
 
 W 
 
 / 
 
 COPYRIGHT 1902 
 
 BY 
 HORACE L. WILGUS 
 
 THE HOLLENBECK PRESS 
 INDIANAPOLIS
 
 I 
 
 THIS WORK IS DEDICATED TO 
 
 j. G. P. W.. 
 
 WITHOUT WHOSE HELP. IN INNUMERABLE WAYS, 
 IT COULD NOT HAVE BEEN COMPLETED 
 
 G6762O
 
 PREFACE. 
 
 MR. JUSTICE SWAYNE said the Common Law is " Reason dealing 
 by the light of experience with human affairs"; and Mr. Justice 
 Holmes says "The life of the law has not been logic ; it has been 
 experience." This work is designed to furnish those interested in 
 the study of Corporation Law, whether practitioner, teacher or stu- 
 dent, such material from the original sources, and in such order, as 
 will show how reason and experience have dealt with the subject. 
 Effort has been made in the selection to secure the best expression of 
 the underlying reason or theory; to place these in such order as to 
 develop, in a natural way, the general theory of Corporation Law, 
 set forth in the table of contents ; to insert such notes as will present 
 a more comprehensive view of some of the topics; and to furnish, in 
 chronological order, such a list of cases bearing upon the principles 
 as will enable the investigator to make a reasonably complete study 
 of the same. 
 
 The editor has had no special theories to advance, but some effort 
 has been made to bring back into light, and put in their proper places, 
 the "personal" and "franchise" theories of corporate existence, so 
 much obscured by the "collection of individuals" theory in the excel- 
 lent works of Mr. Morawetz and Mr. Taylor. 
 
 The Law of Corporations cuts across nearly the whole body of the 
 Law. In addition, intricate and peculiar relations arise between a 
 corporation and the State, the Promoters, the Members, the Officers, 
 the Creditors, or others, as well as amongst themselves. Recently 
 the volume of corporate litigation has been enormous, resulting in 
 numerous discordant decisions of inordinate length. All these makf 
 the choice of illustrative cases on the subject especially difficult. 
 During the four years of preparation, many thousand cases have been 
 examined and compared in order to make this selection. Some top- 
 ics are not here worked out in such detail as in other collections ; bnf 
 
 (v)
 
 vi PREFACE. 
 
 many others, such as, the Corporation as a Franchise, Constitutional 
 Limitations on the Power to Create, Functions of Promoters, Subscrip- 
 tions, Incorporation, Organization, Corporations De Facto and By 
 Estoppel, Name, Power to Sue and Be Sued, Taxation, Visitation, 
 National Corporations, the National Government and State Corpora- 
 tions, etc., etc., not found, or merely touched upon, in other works, 
 are here given due prominence. An appendix of forms is also added. 
 By continual cross references, many cases have been used to do dou- 
 ble service, and thereby add to the completeness of the view. 
 
 It is believed that a constant reference by the student to the out- 
 line given in the table of contents will be of material service in help- 
 ing him to understand and appreciate the bearing and relation of the 
 cases to one another and to the general theory of corporation law. 
 
 Acknowledgments are due to Oscdr Bader, Esq., R. G. Schulder, 
 Esq. and Mr. H. F. Jacobs, for help in reading proof and verifying 
 citations. 
 
 The work is submitted to the judgment of those who have occasion 
 to use it, with the hope that it may be found of service. 
 
 H. L. W. 
 
 ANN ARBOR, MICHIGAN, 
 
 February i, 1902.
 
 CONTENTS. 
 
 VOLUME I. 
 
 PAGE. 
 
 PART I. THE IDEA OF A CORPORATION 1 
 
 PART II. THE BODY CORPORATE 258 
 
 TITLE I. PARENTAGE STATE AND PROMOTERS 258 
 
 SUBDIVISION I. THE STATE'S POWER TO CREATE 258 
 
 SUBDIVISION II. THE PROMOTERS THEIR FUNCTIONS 374 
 
 TITLE II. FORMATION CHARTER ASSOCIATION 397 
 
 TITLE III. BIRTH AND ORGANIZATION 560 
 
 TITLE IV. ANATOMY, INTERNAL STRUCTURE AND CONSTITU- 
 TION 682 
 
 TITLE V. NAME 816 
 
 TITLE VI. LIFE MODE OF EXISTENCE AND ACTION 830 
 
 TITLE VII. DEATH DISSOLUTION 866 
 
 PART III. THE CORPORATION AS A SUBJECT AND SOURCE OF 
 RIGHTS AND OBLIGATIONS 914 
 
 TITLE I. POWERS, RIGHTS AND DUTIES IN GENERAL 914 
 
 TITLE II. PARTICULAR POWERS .. . 937 
 
 VOLUME II. 
 
 TITLE III. DOCTRINE OF ULTRA VIRES 1176 
 
 TITLE IV. GENERAL DUTIES AND LIABILITIES 1236 
 
 PART IV. SPECIAL RELATIONS ARISING FROM THE EXIST- 
 ENCE OF A CORPORATION 1291 
 
 DIVISION I. CORPORATE RELATIONS 1291 
 
 TITLE I. THE CORPORATION AND THE STATE 1291 
 
 SUBDIVISION I. GOVERNMENTAL CONTROL, GENERAL DOC- 
 TRINES , 1291 
 
 SUBDIVISION II. THE STATE AND ITS OWN CORPORATIONS. 1294 
 SUBDIVISION III. THE STATE AND NATIONAL CORPORA- 
 TIONS 1476 
 
 (vii)
 
 viil CONTENTS. 
 
 PAGE. 
 
 SUBDIVISION IV. THE STATE AND FOREIGN CORPORATIONS . 1480 
 SUBDIVISION V. THE NATIONAL GOVERNMENT AND STATE 
 
 CORPORATIONS 1527 
 
 TITLE II. THE CORPORATION AND VARIOUS CLASSES OP 
 
 PERSONS 1546 
 
 SUBDIVISION I. THE CORPORATION AND ITS PROMOTERS . 1546 
 SUBDIVISION II. THE CORPORATION AND ITS MEMBERS ... 1559 
 SUBDIVISION III. THE CORPORATION AND ITS OFFICERS. . .1727 
 SUBDIVISION IV. THE CORPORATION AND ITS CREDITORS. 
 
 1760, 1808 
 SUBDIVISION V. THE CORPORATION AND OUTSIDE PARTIES. 1760 
 
 DIVISION II. INDIVIDUAL RELATIONS 1767 
 
 TITLE I. INTERNAL RELATIONS 1767 
 
 SUBDIVISION I. PROMOTERS 1767 
 
 SUBDIVISION II. SHAREHOLDERS 1770 
 
 SUBDIVISION III. OFFICERS 1790 
 
 TITLE II. EXTERNAL RELATIONS, CREDITORS 1805 
 
 SUBDIVISION I. THE STATE AND CORPORATE CREDITORS . 1805 
 SUBDIVISION II. THE CORPORATION AND ITS CREDITORS .. 1808 
 SUBDIVISION III. THE CREDITORS AND CORPORATE OFFI- 
 CERS 1874 
 
 SUBDIVISION IV. CREDITORS AND SHAREHOLDERS 1899 
 
 I. RIGHTS OF CREDITORS 1899 
 
 A. ARISING FROM IMPERFECT INCORPORATION ... 1899 
 
 B. COMMON LAW OR EQUITABLE LIABILITY OF 
 
 .SHAREHOLDERS 1900 
 
 C. STATUTORY LIABILITY OF SHAREHOLDERS 1987 
 
 II. RIGHTS OF SHAREHOLDERS 2034 
 
 SUBDIVISION V. RIGHTS OF CREDITORS INTER SE 2035 
 
 APPENDIX OF FORJIS 2065 
 
 VOLUME I. 
 
 PART I. 
 THE IDEA OF A CORPORATION. 
 
 CHAPTER 1. 
 
 DESCRIPTION AND CLASSES OF CORPORATIONS 1 
 
 ARTICLE I. DEFINITION AND TESTS 1 
 
 Sec. 1. Definitions, the corporation as a person, as a collection of in- 
 dividuals, as a franchise 1 
 
 Sec. 2. Tests (1) Merger of individuals 
 
 Sec. 3. (2) The legislative intent 15 
 
 Sec. 4. (3) The powers conferred 19 
 
 Sec. 5. (4) In foreign jurisdictions, powers conferred control 28
 
 CONTENTS. IX 
 
 PAGE. 
 
 Notes : 1. Definitions 31 
 
 2. The New York bank cases 31 
 
 3. The Michigan discussion 32 
 
 4. Later holdings 32 
 
 5. The fourth test 32 
 
 ARTICLE II. THE CORPORATION AS A PERSON 33 
 
 Sec. 6. For most purposes the corporation is so considered 33 
 
 (1) And particularly as having rights 33 
 
 (a) Under the common law 33 
 
 Sec. 7. (b) Under the United States constitution 36 
 
 Sec. 8. (2) And as subject to duties 44 
 
 (a) Of a public nature 44 
 
 Sec. 9. (b) And of a private nature 47 
 
 Sec. 10. This artificial personality is recognized particularly 
 
 (1) In interpreting statutes, "person" is usually held to in- 
 clude corporations 51 
 
 Note : Illustrations 51 
 
 Sec. 11. (2) As to the ownership of its property 58 
 
 Sec. 12. (3) As to contracts between it and its members . 60 
 
 Sec. 13. (4) As to contracts between the members themselves 65 
 
 Sec. 14. (5) As to suits by or against third persons 70 
 
 Note: Evidence, shareholder as judge, juror, witness, 
 
 etc 71 
 
 Sec. 15. (6) As to suits between it and its members 71 
 
 Note : 1. Ancient ideas of personality 72 
 
 2. In the Roman law 73 
 
 3. In the canon law 74 
 
 4. In the early common law 74 
 
 5. In the modern law 77 
 
 ARTICLE III. THE CORPORATION AS A COLLECTION OF INDIVIDUALS 79 
 
 Sec. 16. The corporation is considered as a collection of individuals 
 
 (1) In the management of corporate affairs 79 
 
 Sec. 17. (2) When agreement, reason, or policy so requires 80 
 
 Note: Specific performance of stock agreement; 
 
 waiver of statutory liability 86 
 
 Sec. 18. (a) Particularly in matters relating to the constitution of 
 
 the corporation or changes therein 87 
 
 Sec. 19. (b) In determining the rights of members among them- 
 selves in equity 88 
 
 Sec. 20. (c) When corporate organization is used as a cloak to aid 
 
 in the commission of frauds 97 
 
 Sec. 21. (d) When corporate sins, result from the concerted, but 
 
 apparently individual, actions of the members 100 
 
 Note : The corporation as a collection of individ- 
 uals, history and definitions 109-113
 
 X CONTENTS. 
 
 PAGE. 
 
 ARTICLE IV. THE CORPORATION AS A FRANCHISE 113 
 
 Sees. 22-3. In its relation to the state it is considered as a primary fran- 
 chise 113 
 
 (1) General nature of a franchise 113 
 
 Sees. 24-5. (2) And particularly, this primary franchise belongs to the 
 
 members in their individual capacities 136 
 
 Sec. 26. (3) There may be secondary franchises, etc., owned by the 
 
 corporation itself 143 
 
 Note : Power to mortgage franchise 149 
 
 Sees. 27-8. (4) The offer and acceptance of a franchise make a grantor 
 
 executed contract 150 
 
 Sec. 29. (5) Franchises are property and can not be taken without 
 cause or compensation, but may be forfeited for mis- 
 user or non-user 152 
 
 Note : The corporation as a franchise 157-167 
 
 ARTICLE V. CORPORATIONS AS DISTINGUISHED FROM OTHER INSTITUTIONS . . . 167 
 
 Sec. 30. (1) From partnerships 167 
 
 Note : Corporations and partnerships 170 
 
 Sec. 31. (2) From joint stock companies 171 
 
 Note : Nature of joint stock companies 175 
 
 Sec. 32. (3) From fraternity or society 176 
 
 Sec. 33. (4) From stock exchange 178 
 
 Sec. 34. (5) From cost-book companies 182 
 
 Sec. 35. (6) From unincorporated associations 187 
 
 Sec. 36. (7) From state institutions 191 
 
 Note : Nature of state institutions 192 
 
 ARTICLE VI. CLASSES OP CORPORATIONS 193 
 
 Sec. 37. (a) As to number of members: 1. Sole; 2. Aggregate 193 
 
 Note : Officers ; one-man companies 200 
 
 Sees. 38-9. (b) As to purpose 201 
 
 1. Ecclesiastical, or religious 201 
 
 2. Lay, which are 201 
 
 (a) Eleemosynary 201 
 
 (b) Civil, which are 201-3 
 
 Sec. 40. (1) Quasi 214 
 
 (2) Pure or complete 214 
 
 Sees. 41-43. (c) As to relation to the state, corporations are 221 
 
 1. Purely public 221-9 
 
 2. ^wasi-public 222-9 
 
 3. Private, which are 222-9 
 
 Sec. 44. (1) As to method of acquiring membership 234 
 
 1. Stock, or 234 
 
 2. Non-stock 234 
 
 Sees. 45-47. (2) As to perfection of organization 239-53 
 
 1. De jure 239 
 
 2. De facto 244 
 
 3. By estoppel 253
 
 CONTENTS. XI 
 
 PART II. 
 
 THE BODY CORPORATE, ITS PARENTAGE, CONCEPTION, BIRTH, 
 ANATOMY, LIFE, AND DEATH. 
 
 PAGE. 
 
 TITLE I. PARENTAGE, THE STATE AND PROMOTERS 258 
 
 SUBDIVISION I. THE STATE, ITS POWER TO CREATE 258 
 
 CHAPTER 2. 
 
 NATURE OF THE POWER AND METHOD OP EXERCISE 258 
 
 ARTICLE I. NATURE OF THE POWER . 258 
 
 Sec. 48. (a) The power to create is an incident of sovereignty 258 
 
 Sec. 49. I b) None but the sovereign can create 263 
 
 ARTICLE II METHODS OF EXERCISE, EVIDENCE OF SOVEREIGN'S CONSENT. 264 
 
 Sec. 50. (a) In general 264 
 
 Sec. 51. (b) King's or queen's charter 266 
 
 Note : King's power to create corporations 269 
 
 Sec. 52. (c) Common law 270 
 
 Note : The states and national government as corporations. 275 
 Sec. 53. (d) Prescription 275 
 
 Note 278 
 
 Sec. 54. (e) Legislative bodies whose powers are 278 
 
 U) Inherent 279 
 
 Sec. 55. (2) Exclusive 279 
 
 Sec. 56. (3) Plenary 283 
 
 Sees. 57-57b. And as to the form or method of exercising this power, they 
 act by 
 
 (1) Special or general law 287 
 
 (a) Policy of general corporation laws 287-295 
 
 Sec. 58. (b) Difference between method by general and by 
 
 special law 296 
 
 Sec. 59. (2) Implication 298 
 
 Note 300 
 
 Sec. 59a. (3) Consolidation 301 
 
 CHAPTER 3. 
 
 LIMITS ON THE POWER OF THE STATE TO CREATE CORPORATIONS 302 
 
 ARTICLE I. FROM THE NATURE OF LEGISLATIVE POWER 302 
 
 Sec. 60. (a) Delegation, there can be no general delegation of legisla- 
 tive authority 302 
 
 Sec. 61. (b) Exceptions, or apparent exceptions, in cases of 302 
 
 1. Territorial legislatives 302 
 
 Sec. 62. 2. Regents of University of New York 304 
 
 Note : Delegation of power to create corporations 306 
 
 ARTICLE II. FROM- NATURE OF A FRANCHISE 306 
 
 Sec. 63. (a) Can not be forced on any one 306 
 
 Sec. 64. (b) May be exclusive, but not so unless expressly made so 309 
 
 ARTICLE III. CONSTITUTIONAL LIMITS 320 
 
 Sec. 65. (a) In the national constitution 320
 
 xii CONTENTS. 
 
 PAGE. 
 
 (1) On congress 320 
 
 Note : National corporations 325 
 
 Sec. 66. (2) On state legislatures 326 
 
 Sec. 67. (3) On territorial legislatures 332 
 
 Sec. 68. (b) In the state constitutions 333 
 
 (1) General and special laws, what are within the provis- 
 ion, "the legislature shall pass no special act creat- 
 ing corporations, or conferring corporate powers". . 333 
 Note : What are general and special laws 337 
 
 Sees. 69-72. (2) Creating: "The legislature shall pass no special or 
 
 local act creating corporations" 338-360 
 
 Sec. 73. (3) Conferring corporate powers : "The legislature shall 
 pass no special or local act conferring corporate 
 powers" 360 
 
 Sec. 74. (4) Title and special privilege : "The legislature shall pass 
 no bill embracing mere than one subject, and no 
 private or local bill shall be passed, granting any ex- 
 clusive privilege" 363 
 
 Sec. 75. (5) Two-thirds vote: "The assent of two-thirds of the 
 members elected to each branch of the legislature 
 shall be requisite to every bill creating corpora- 
 tions" 2, 19, 287, 292, 373 
 
 SUBDIVISION II. THE BODY CORPORATE, ITS PARENTAGE, THE PROMOTERS. 374 
 
 CHAPTER 4. 
 
 FUNCTIONS AND CLASSES OF PROMOTERS 374 
 
 Sec. 76. Definitions ' 374 
 
 Sees. 77-8. Self-constituted, functions generally, illustrations 375 
 
 Sec. 79. Statutory : Commissioners 385 
 
 Note : Authority and functions of commissioners 390 
 
 Sec. 80. Incorporators, under general statutes 391 
 
 TITLE II. THE BODY CORPORATE : ITS FORMATION, OR ITS CONCEPTION AND 
 
 INCUBATION , 397 
 
 CHAPTER 5. 
 
 THE CORPORATE CHARTER 397 
 
 ARTICLE I. NATURE AND PURPOSE OF THE CHARTER 397 
 
 Sec. 81. In general 397 
 
 Sec. 82. More particularly, the charter is both a law and a contract 397 
 
 Sec. 83. The charter as a law and as a contract 398 
 
 Note : The charter as a law '. . 406 
 
 Sec. 84. The charter is a license of authority to convert persons or an as- 
 sociation of persons into the designated corporation 406 
 
 ARTICLE II. ITS GENERAL FORM AN OFFER AND ACCEPTANCE 409 
 
 Sec. 85. The offer may be by parties, and acceptance by t*he state ; or it 
 may be a special or general offer by the state, and an accept- 
 ance by individuals or an association of individuals 409 
 
 Sec. 86. The offer may be withdrawn before acceptance ; acceptance is 
 
 essential . . . 412
 
 CONTENTS. 
 
 PAGE. 
 
 Sec. 87. Acceptance may be inferred from signing articles, holding meet- 
 ings, organizing and acting as a corporation 414 
 
 Sec. 88. Acceptance must be within the state offering the charter 417 
 
 Sec. 89. Renewals, extensions and amendments must also be accepted to 
 
 make them effective 417 
 
 ARTICLE III. THE CHARTER ITS CONTENTS , 426 
 
 Sec. 90. In general 426 
 
 Sec. 91. Under special charter from the king, illustration 426 
 
 Sec. 92. Under speqial act of the legislature, illustration 427 
 
 Sec. 93. Under general laws 429 
 
 (a) The charter consists of: 
 
 (1 ) The provisions of the general corporation law, and 
 
 (2) Articles of incorporation, authorized thereby, and 
 
 consistent therewith 429 
 
 Note 434 
 
 Sec. 94. (b) Usual provisions in the general law 435 
 
 Sec. 95. (c) Articles of incorporation, form and contents 435 
 
 Form of application for incorporation 436 
 
 Sec. 95a. (d) Deed of settlement 440 
 
 Sec. 95b. Interpretation of charters 441 
 
 CHAPTER 6. 
 
 THE ASSOCIATION, ITS NECESSITY, NATURE, FORMS AND PARTIES 442 
 
 ARTICLE I. NECESSITY, NATURE, CONSIDERATION AND GENERAL FORM OP 
 
 THE ASSOCIATION 442 
 
 Sec. 96-7. Necessity, an association of persons is necessary to or results 
 
 from the creation of a corporation aggregate 442 
 
 Sec. 98. General nature of such association contract 445 
 
 Sec. 99. Consideration of the agreement 448 
 
 Sec. 100. General form of such contract, may be either a statutory or 
 
 common-law contract 456 
 
 Note 458 
 
 ARTICLE II. FORMS OF ASSOCIATION CONTRACTS; STATUTORY SUBSCRIP- 
 TIONS 459 
 
 Sec. 101. An exclusively statutory contract 459 
 
 Sec. 102. The state may make those who incorporate and not those who 
 
 take stock, members 464 
 
 Sec. 103. The state may require signing articles of incorporation by orig- 
 inal shareholders 469 
 
 ARTICLE III. FORMS OF ASSOCIATION CONTRACTS; COMMON LAW SUB- 
 SCRIPTION CONTRACTS 471 
 
 Sees. 104-5. (1) Agreements to subscribe for stock in a corporation to be 
 
 formed 471 
 
 Sec. 106. (2) Agreements subscribing to stock in a corporation to be 
 
 formed : Theories 474 
 
 (a) A mere withdrawable offer before accepted by the 
 
 corporation 474 
 
 Sec. 107. Notice of withdrawal . . . 478
 
 xiv CONTENTS. 
 
 PAGE. 
 
 See. 108. (b) Offer until acted upon in accordance with its pro- 
 visions 482 
 
 Sec. 109. (c) Binding contract from time of making 491 
 
 Sec. 110. (d) Offer to the corporation, and a binding contract 
 
 between the parties subscribing 492 
 
 Sees. 111-2. (3) Subscription to agent or trustee 497 
 
 Sec. 113. (4) Underwriting 502 
 
 Sec. 114. (5) Application, allotment and notice 504 
 
 Sec. 115. (6) Estoppel .510 
 
 Form of subscription to stock in a corporation to be 
 
 formed 510 
 
 ARTICLE IV. CONDITIONAL SUBSCRIPTIONS 511 
 
 Sec. 116. Conditions may be express or implied 511 
 
 Sec. 117. Express conditions may be attached to subscriptions made (1) 
 
 before, or (2) after incorporation; payment of deposits 514 
 
 Note : Payment of deposits 521 
 
 Sec. 118. (1) Prior to incorporation, theories : 522 
 
 (a) Subscription valid, condition void 522 
 
 Sec. 119. (b) Subscription and condition both void 525 
 
 Sec. 120. (2) After incorporation, theories : 526 
 
 (a) Valid contract, to await time of performance 526 
 
 Sec. 121. (b) Mere offer until performance 528 
 
 Sec. 122. Subscriptions may be upon conditions precedent or subsequent. 532 
 Sec. 123. Conditional delivery of subscriptions. Escrows, theories of: .. 536 
 
 (a) Delivery can not be to company's agent 536 
 
 Sec. 124. (b) Delivery may be to company's agent 538 
 
 ARTICLE V. FRAUD AND MISTAKE IN SUBSCRIPTIONS 539 
 
 Sec. 125. Fraud 539 
 
 Note 544 
 
 Sec. 126. Mistake 545 
 
 Note : Mistakes of fact and of law 547 
 
 ARTICLE VI. PARTIES TO THE AGREEMENT 547 
 
 Sec. 127. Infants 547 
 
 Note 548 
 
 Sees. 128-9. Married women 549 
 
 Note .-552 
 
 Sec. 130. Aliens 552 
 
 Note 552 
 
 Sec. 131. Private corporations 553 
 
 Sec. 132. Municipal corporations 554 
 
 Note 557 
 
 Sec. 133. State or national governments 558 
 
 TITLE III. THE BODY CORPORATE : ITS BIRTH AND ORGANIZATION 560 
 
 CHAPTER 7. 
 
 ORGANIZATION AND COMPLIANCE WITH CONDITIONS 560 
 
 ARTICLE I. SCHEMES OF ORGANIZATION 560 
 
 Sec. 134. (1) Under the king's charter 560
 
 CONTENTS. XV 
 
 PAGE. 
 
 Sec. 135. (2) In special acts 660 
 
 (a) The act itself provides the original organization ; illus- 
 tration 560 
 
 Sec. 136. (b) The law provides for the organization to be made by 
 
 the stock subscribers ; illustration 561 
 
 Sec. 137. (3) Under general incorporation laws 561 
 
 (a) Deed of settlement 561 
 
 Sees. 138-9. (b) License plan, Illinois and Kansas laws 561-2 
 
 Sec. 140. (c) Organization completed before application is made, 
 
 Massachusetts law 562 
 
 Sec. 141. (d) Organization by stock subscribers after filing articles 
 
 of incorporation 563 
 
 ARTICLE II. PROOF OP ORGANIZATION 563 
 
 Sec. 142. General presumption of regularity 563 
 
 ARTICLE III. WHEN DOES CORPORATE BIRTH OCCUR: THEORIES 565 
 
 Sees. 143-4. (a) Only upon complete organization 565 
 
 Sec. 145. (b) Immediately upon filing articles, without stock subscrip- 
 tion or organization 571 
 
 Sec. 146. (c) At time of filing articles ; but adult corporate capacity 
 
 does not exist until the capital stock is provided 574 
 
 Sec. 147. (d) As soon as the first meeting is held and officers chosen . 581 
 
 Sec. 148. (e) Under special acts 585 
 
 ARTICLE IV. COMPLIANCE WITH CONDITIONS. DE JURE EXISTENCE 585 
 
 Sec. 149. (1) As to de jure existence conditions are 
 
 (a) Precedent, require a substantial compliance 585 
 
 Sec. 150. (b) Subsequent 586 
 
 Sec. 151. (2) Conditions may be also 588 
 
 (c) Directory merely 588 
 
 Sec. 152. (d) Mandatory, which may be 590 
 
 (1) Implied good faith in securing corporate privi- 
 leges 590 
 
 Se'c. 153. (2) Express 594 
 
 (a) A certain number of incorporators 594 
 
 Sec. 154. (b) Written articles of agreement 597 
 
 Sec. 155. (c) Names and residence of subscribers to stock 600 
 
 Sec. 156. (d) Place of business 603 
 
 Sec 157. (e) Purpose of incorporation 605 
 
 Note 607 
 
 Sec. 158. (f) Subscribing and acknowledging articles. .' . 607 
 
 Sec. 159. (g) Acknowledging articles 609 
 
 Sec. 160. (h) Filing articles 611 
 
 ARTICLE V. CONDITIONS OF DE FACTO EXISTENCE 614 
 
 Sees. 161-2. (1) Conditions precedent 614 
 
 Sec. 163. (2) Reasons for not allowing collateral attack upon de facto 
 
 corporate organization 625 
 
 Note : De facto corporations 629
 
 XVI CONTENTS. 
 
 PAGE. 
 
 ARTICLE VI. CONDITIONS OF CORPORATE EXISTENCE BY ESTOPPEL 630 
 
 Sees. 164. A. Theories : 
 
 (1) The doctrine is one of equity 630 
 
 (a) Will be applied where it would be inequitable 
 
 not to do so 631 
 
 Sec. 165. (b) Will be applied only when equitable to do so. .. 632 
 
 Sec. 166. (2) Estoppel arises on matter of fact only, and not of law . . 634 
 
 Sec. 167. (3) Estoppel applies only where there is at least de facto 
 
 existence 637 
 
 Sec. 168. (4) Public policy forbids the creation or recognition of cor- 
 porations by estoppel 642 
 
 Sec. 169. B. Parties estopped 644 
 
 (1) The pretended corporation itself 644 
 
 Sec. 170. (2) The associates 646 
 
 (a) Among themselves 646 
 
 Sec. 171. (b) As to the corporation or its creditors 647 
 
 1. Upon subscription liability 647 
 
 Note : Estoppel of subscribers 649 
 
 Sec. 172. 2. Upon statutory liability 650 
 
 Sec. 173. (3) The promoters and officers of the apparent corporation . 650 
 Sec. 174. (4) Dealers with knowledge of claim of corporate capacity . 652 
 (a) Who seek to evade liability to the apparent corpo- 
 ration 652 
 
 Sec. 175. (b) Who seek to hold members liable as partners .... 656 
 
 Sec. 176. (c) Dealers without knowledge of claim of corporate 
 
 capacity are not estopped 662 
 
 Sec. 177. (5) Non-dealers, who injure the corporation, are estopped 
 (a) In cases of torts against the apparent corpora- 
 tion 664 
 
 Sec. 178. (b) Or crimes affecting the apparent corporation 668 
 
 Note : Extent of doctrine of estoppel 671 
 
 ARTICLE VII. EFFECT OF FAILURE TO COMPLY WITH CONDITIONS, AND 
 No ESTOPPEL UPON LIABILITY OF MEMBERS. THEORIES: 
 
 Sec. 179. (1) Makes associates partners 673 
 
 Sec. 180. (2) Does not make a partnership 677 
 
 TITLE IV. THE BODY CORPORATE: ITS ANATOMY, INTERNAL STRUCTURE 
 
 AND CONSTITUTION 682 
 
 CHAPTER 8. 
 
 MEMBERS, PARTS, ORGANS OF ACTION, WITH THEIR FUNCTIONS AND MU- 
 TUAL RELATIONS 682 
 
 SUBDIVISION I. MEMBERS, INTEGRAL PARTS AND ORGANS OF ACTION 682 
 
 ARTICLE I. MEMBERS 682 
 
 Sec. 181. Necessity of members 682 
 
 Sec. 182. Acquisition of membership 682 
 
 (1) Non-stock companies 682 
 
 Sec. 183. (2) Stock companies 687 
 
 A. By subscription 687 
 
 (1) Statutory contract 687
 
 CONTENTS. XV11 
 
 y 
 
 PAGE. 
 
 Sec. 184. (2) Common law contract 687 
 
 1. Agreements to subscribe 687 
 
 2. Agreements subscribing 687 
 
 3. Agreement with promoter 687 
 
 4. Underwriting 687 
 
 5. Application, allotment, etc 687 
 
 Sec. 185. B. Transfer 687 
 
 Sec. 186. C. Estoppel 687 
 
 ARTICLE II. INTEGRAL PARTS 687 
 
 Sees. 187-8. In general 687 
 
 Sec. 189. Directors are not integral parts 688 
 
 ARTICLE III. ORGANS OF ACTION 690 
 
 Sees. 190-1. In general 690 
 
 Note '. 691 
 
 Sec. 192. Qualification of agents and officers 692 
 
 Note : Qualification of agents and officers 693 
 
 SUBDIVISION II. FUNCTIONS OF MEMBERS, DIRECTORS AND OFFICERS 694 
 
 ARTICLE I. MEMBERS AND DIRECTORS 694 
 
 Sec. 193. Members wield the extraordinary powers, and directors the 
 
 ordinary business powers 694 
 
 Note : Functions of shareholders and directors 702 
 
 ARTICLE II. OTHER OFFICERS 703 
 
 Sec. 194. The president 703 
 
 Note : Various officers 704 
 
 SUBDIVISION III. INTERNAL RELATIONS AND CONSTITUTION 705 
 
 ARTICLE I. THE CORPORATE FRANCHISES 705 
 
 Sec. 195. Franchises of the corporation itself 705 
 
 Note 706 
 
 Sec. 195. Franchises of the members 706 
 
 ARTICLE II. CONTRACTS CONTAINED IN THE CHARTER OF A CORPORATION . . 707 
 
 Sees. 197-8. 1. In general 707 
 
 Note : The Dartmouth College decision 746 
 
 Sec. 199. 2. Contract between the state and the corporation 750 
 
 Sec. 200. 3. Contract between the state and corporate creditors, and 
 between stockholders and creditors, in case of statutory 
 
 liability 752 
 
 Sec. 201. 4. Contract between the state and the members 754 
 
 Sec. 202. 5. Contract between the corporation and the members, or 
 
 among the members themselves 757 
 
 (a) As to the amount to be contributed 757 
 
 Sec. 203. (b) That subscriptions are made in good faith 758 
 
 ARTICLE III. THE CORPORATE FUNDS. CAPITAL STOCK 760 
 
 Sec. 204. In general 760 
 
 Sec. 205. Right to create a capital stock 761 
 
 Sec. 206. Power to increase the capital stock 763 
 
 Note 763 
 
 Sec. 207. Power to decrease the capital stock 764 
 
 ii WIL. CAS.
 
 XV111 CONTENTS. 
 
 PAGE. 
 
 Sees. 208-9. Nature, function and purpose of capital stock 766 
 
 Note : Definitions of various kinds of stock 771 
 
 Sec. 210. Capital, capital stock, surplus and franchise distinguished 778 
 
 Note : Capital stock, capital, shares, property 781 
 
 Sec. 211. Capital stock, kinds, common and preferred 785 
 
 Sec. 212. Preferred stock, power to issue 790 
 
 Note: Power to issue preferred stock generally 793 
 
 Sec. 213. Shares of stock, nature of 794 
 
 (1) Personal property 794 
 
 Note , 798 
 
 Sec. 214. (2) Statute of frauds, "goods, wares, or merchandise" 799 
 
 Note 801 
 
 Sec. 215. (3) Choses in action , 801 
 
 Sec. 216. (4) As subjects of conversion 804 
 
 Note 807 
 
 Sec. 217. (5) Negotiability of shares 807 
 
 Note 810 
 
 Sec. 218. (6) As subjects of attachment or execution 810 
 
 Sec. 219. (7) Location of shares for attachment 81 1 
 
 Sec. 220. (8) Seizure in equity 815 
 
 TITLE V. THE BODY CORPORATE : ITS NAME 816 
 
 CHAPTER 9. 
 
 THE CORPORATE NAME 816 
 
 Sec. 221. Necessity of a name 816 
 
 Sec. 222. Acquisition of a name 817 
 
 Note 818 
 
 Sees. 223-4. Rights in the corporate name 819 
 
 Note : Rights in a corporate name 823 
 
 Sec. 225. Effect of misnomer 825 
 
 Note : Effect of misnomer 826 
 
 Sec. 226. Change of corporate name 827 
 
 Note : Change of name 828 
 
 TITLE VI. THE CORPORATE LIFE 830 
 
 CHAPTER 10. 
 
 THE MODE OF CORPORATE EXISTENCE AND ACTION 830 
 
 ARTICLE I. MODE OF EXISTENCE 830 
 
 Sec. 227. Perpetual succession 830 
 
 Note 833 
 
 ARTICLE II. MODE OF ACTION; SHAREHOLDERS AND DIRECTORS 833 
 
 Sec. 228. Shareholders' meeting, necessity 833 
 
 Sees. 229-30. Shareholders' meeting, notice 835 
 
 Note : Notice of corporate meetings 837 
 
 Sec. 231. Shareholders' meeting, quorum 839 
 
 Note : Quorum 840 
 
 Sees. 232-4. Place of meeting 841 
 
 Note ; Place of corporate meetings 847
 
 CONTENTS. XIX 
 
 PAGE. 
 
 Sees. 235-6. Directors' meeting, necessity, notice, quorum . 848 
 
 Note : Delegation of powers by directors 850 
 
 ARTICLE III. MODE OP ACTION GENERALLY 854 
 
 Sec. 237. Presumptions 854 
 
 Sec. 238. Execution of contracts 862 
 
 Note: Corporate acts, record of; deeds; acknowledg- 
 ments ; notes, etc 862 
 
 TITLE VII. CORPORATE DEATH DISSOLUTION 866 
 
 CHAPTER 11. 
 
 MODES AND EFFECT OF DISSOLUTION '. 866 
 
 ARTICLE I. METHODS OF DISSOLUTION 866 
 
 Sec. 239. In general 866 
 
 Note : Modes of dissolution 868 
 
 Sec. 240. Expiration of charter 868 
 
 Sec. 241. Happening of a condition or contingency prescribed in the 
 
 charter 871 
 
 Sec. 242. Death of members 873 
 
 Sec. 243. Loss of integral part 875 
 
 Sees. 244-5. Surrender 877 
 
 Sec. 246. Non-user, insolvency and surrender 881 
 
 Note : Surrender 886 
 
 Sec. 247. Repeal . . 887 
 
 Sec. 248. Forfeiture 887 
 
 Sec. 249. Ownership of stock by one member 887 
 
 Note : One man companies ' 889 
 
 ARTICLE II. EFFECT OF DISSOLUTION 891 
 
 Sec. 250. Lands, chattels and debts at common law 891 
 
 Sec. 251. Contracts of shareholders 895 
 
 Sec. 252. Contracts of creditors 896 
 
 Sec. 253. Executory contracts 897 
 
 Sec. 254. Generally, upon rights and liabilities in equity 899 
 
 Sec. 255. Reversion of land 903 
 
 Sec. 256. Reversion of property of a mutual company 904 
 
 Sec. 257. Reversion of property, charitable corporation 906 
 
 Note : Effect of dissolution, franchises, contracts, debts, per- 
 sonal property, real property, actions, judgments 910 
 
 PART HI. 
 
 THE CORPORATION AS A SUBJECT AND SOURCE OF RIGHTS 
 AND OBLIGATIONS. 
 
 TITLE I. RIGHTS AND DUTIES OF THE CORPORATION IN GENERAL 914 
 
 CHAPTER 12. 
 
 POWERS AND AUTHORITY IN GENERAL 914 
 
 ARTICLE I. THEORIES OF CORPORATE CAPACITY 914 
 
 Sec. 258. Corporate powers 914
 
 XX CONTENTS. 
 
 PAGE. 
 
 Sec. 259. Special capacities 915 
 
 Note . t 918 
 
 Sec. 260. General capacity 919 
 
 Note 924 
 
 ARTICLE II. CLASSES OP CORPORATE POWERS 925 
 
 Sec. 261. 1. Incidental powers 925 
 
 Sec. 262. 2. Express powers 926 
 
 3. Implied powers 926 
 
 Note: Implied powers. Rules of construing corporate 
 
 charters 933 
 
 TITLE II. PARTICULAR POWERS AND LIABILITIES 937 
 
 CHAPTER 13. 
 
 PARTICULAR POWERS 937 
 
 ARTICLE I. PERPETUAL SUCCESSION 937 
 
 Sec. 263. Perpetual succession 937 
 
 ARTICLE II. NAME 937 
 
 Sec. 264. Name 937 
 
 ARTICLE III. POWER TO CONTRACT 937 
 
 Sec. 265. (A) As to form 937 
 
 1. In general 937 
 
 2. As to seal 938 
 
 Sec. 266. (B) As to subject-matter.. 938 
 
 (1) In general 938 
 
 Sees. 267-8. (2) Contract debts and borrow money 938 
 
 Sees. 269-71. (3) Negotiable instruments 940 
 
 Note : Power to issue negotiable instruments 946 
 
 Sees. 272-3. Accommodation paper 949 
 
 Sec 274. (4) Surety or guarantor 952 
 
 Note : Power to be surety or guarantor 956 
 
 Sec. 275. (5) Partnership 957 
 
 Note : Power to enter into partnership 959 
 
 Sees. 276-7. (6) Trade combinations 960 
 
 (a) Pools 960 
 
 Sec. 278. (b) Contracts restraining trade and competition. . 967 
 
 Note: Corporate combinations; anti-trust 
 
 acts 973 
 
 Sec. 279. (c) Unincorporated trusts 977 
 
 Sees. 280-1. (d) Incorporated trusts 978 
 
 Sees. 282-4. (7) Consolidation 984 
 
 (a) Power to consolidate 984 
 
 Sec. 285. (b) Interstate consolidation 988 
 
 Sec. 286. (c) Consolidation or merger 989 
 
 Sec. 287. (d) Effect of consolidation upon creditor's rights . . 995 
 
 Note: Consolidation meaning, consent of state, con- 
 sent of shareholders, effect on former companies 
 their existence, rights, privileges and liabilities .. 1003
 
 CONTENTS. xxi 
 
 PAGE. 
 
 ARTICLE IV. POWER TO ACQUIRE, HOLD AND ALIENATE PROPERTY .... 1007 
 
 Sec. 288. 1. Acquire and hold real property 1007 
 
 (A) By purchase 1007 
 
 (a) Presumptions 1007 
 
 Sees. 289-90. (b) Extent of power topurchase and hold 1008 
 
 Sec. 291. (c) Consequences of ultra vires purchase 1014 
 
 Note: Acquisition of property by corpora- 
 tion, common law, statutes of mortmain, 
 
 real property, who can complain 1015 
 
 Sec. 292. (d) Estates that may be acquired 1018 
 
 (1) Fee-simple 1018 
 
 Sec. 293. (2) Estates in common and joint tenancy. .1019 
 
 Sec. 294. (B) By devise . .1021 
 
 (a) History and general doctrines 1021 
 
 Sec. 295. (b) Restrictions in charters, and restrictions in 
 
 statutes of wills 1026 
 
 Note : Statutes of wills 1029 
 
 Sees. 296-7. (c) Who may object when limit is exceeded 1029 
 
 Sec. 298. 2. To acquire personal property 1040 
 
 (1) In general 1040 
 
 Note 1041 
 
 Sec. 299. (2) Power to acquire its own shares 1041 
 
 (1) The English rule 1041 
 
 Note 1044 
 
 Sec. 300. (2) American rule, theories 1045 
 
 (a) May (with some exceptions) acquire 
 its own shares unless expressly or 
 
 impliedly restrained 1045 
 
 Note 1046 
 
 Sec. 301. Exceptions to rule allowing acquisition 
 
 of its own shares 1047 
 
 Note 1048 
 
 Sec. 302. (b) May not, unless necessary to prevent 
 
 loss to the company 1048 
 
 Sec. 303. (3) Power to acquire shares of stock in other 
 
 corporations 1051 
 
 (1) The English rule 1051 
 
 Sec. 304. (2) General rule in the United States .... 1054 
 
 Sec. 305. t 3 ) Exceptions to the general rule 1060 
 
 Note : Acquiring stock in other cor- 
 porations 10fi2 
 
 Sec. 306. 3. Power to alienate property 1 (Mir > 
 
 (a) General doctrine 1065 
 
 Note l r ' 6 
 
 Sec. 307. (b) Limits 10(i6 
 
 Sees. 308-9. (c) Property charged with a public trust can not be 
 
 sold without special authority 1070 
 
 Sec. 310. (d) Contrary view 1074
 
 xxii CONTENTS. 
 
 PAGE, 
 
 Sec. 311. (e) Power to mortgage 1078 
 
 Note 1081 
 
 Sec. 312. (f ) Power to dispose of franchise 1081 
 
 1. Not without special authority 1081 
 
 Sec. 313. 2. Theory of sale when authority to convey fran- 
 chise is given ] 082 
 
 ARTICLE V. POWER TO ACT IN A. PERSONAL RELATION. 1087 
 
 Sec. 314. 1. Power to take as a trustee 1087 
 
 Sec. 315. 2. Power to act as administrator or executor 1088 
 
 Sec. 316. 3. Power to act as agent or attorney in fact ' 1090 
 
 ARTICLE VI. POWER TO SUE AND BE SUED 1092 
 
 Sec. 317. Right to sue, at common law, anywhere 1092 
 
 Sec. 318. Unoker statutes, conditions imposed do not generally prevent 
 
 suing 1 093 
 
 Sec. 319. But statutes may exclude from suing, except as to interstate or 
 
 foreign commerce 1095 
 
 Sec. 320. But such statutes can not exclude from suing in the United 
 
 States courts 1097 
 
 Sec. 321. Federal corporations can sue in the federal courts 1098 
 
 Sec. 322. Liability to be sued 1099 
 
 In the United States courts, citizenship 1099 
 
 Sec. 323. In what district 1106 
 
 Note : Residence of corporations for purpose of suits against 
 
 them 1110 
 
 Sec. 324. Alien corporation 1111 
 
 Sec. 325. In the state courts where found doing business 1115 
 
 Note : Service of process, domestic corporations, foreign cor- 
 porations 1120 
 
 Sec. 326. What is doing business so as to authorize service of process 1121 
 
 Sec. 327. Pleading 1122 
 
 Corporation plaintiff, need not allege corporate existence. .1122 
 
 Sec. 328. Contra, must allege corporate existence 1124 
 
 Sec. 329. Corporation defendant, plaintiff need not allege defendant is 
 
 a corporation, if name implies it is not a natural person. 1125 
 
 Sec. 330. Contra, plaintiff should allege corporation is such 1126 
 
 Sec. 331. General issue, at law does not raise question of corporate ex- 
 istence ; otherwise in equity , . 1128 
 
 Sec. 332. Contra, under general issue corporate existence must be 
 
 proved f 1129 
 
 Sec. 333. General denial under the code 1130 
 
 Sec. 334. Proof of corporate existence special charter 1131 
 
 Sec. 335. Under general incorporation laws 1132 
 
 Sec. 336. Power to confess judgment 1134 
 
 Sec. 337. What may be taken on execution 1136 
 
 ARTICLE VII. RIGHT TO HAVE AND USE A SEAL 1136 
 
 Sees. 338-9. 1. Necessity of a seal 1136 
 
 (a) At common law . . 1136
 
 CONTENTS. xxiii 
 
 PAGE. 
 
 Sec. 340. (b) Now generally unnecessary, except where required 
 
 of a natural person also 1137 
 
 Note 1138 
 
 Sec 341. (c) In deeds conveying land, the corporate seal is re- 
 quired in some states 1138 
 
 Sec. 342. (d) Signing in some way is now generally of more im- 
 portance than sealing 1142 
 
 Note t 1144 
 
 Sec. 343. 2. Sufficiency and effect of a seal 1145 
 
 (a) Presumptions 1145 
 
 Note 1146 
 
 Sec. 344. (b) As evidence of agents' or officers' authority 1147 
 
 Note 1148 
 
 Sec. 345. (c) As evidence of a consideration 1148 
 
 Sec. 346. (d) Upon a negotiable instrument .1150 
 
 ARTICLE VIII. POWER TO MAKE BY-LAWS 1153 
 
 Sec. 347. 1. Definition and purpose, differs from regulation 1153 
 
 Sec. 348. 2. Power to make 1156 
 
 (a) Incidental to corporate existence 1156 
 
 Sec. 349. (b) This power resides in the shareholders or members 
 
 unless otherwise provided 1156 
 
 Note 1157 
 
 Sec. 350. (c) Limits on power to make 1157 
 
 1. Forfeitures 1157 
 
 Sec. 351. 2. Transfers 1159 
 
 Sees. 352-3. 3. Liens 1181- 
 
 Note 1164 
 
 Sec. 354. 4. Expulsion of members 1165 
 
 Note 1171 
 
 Sec. 355. 3. Validity of by-laws in general 1171 
 
 Note 1173 
 
 Sec. 356. 4. Effect of by-laws 1174 
 
 Note : Members, third parties 1175 
 
 ARTICLE IX. DISFRANCHISEMENT OF MEMBERS 1175a 
 
 VOLUME II. 
 
 TITLE III. THE DOCTRINE OF ULTRA VIRES 1176 
 
 CHAPTER 14. 
 
 GENERAL THERORY OF ULTRA VIRES TRANSACTIONS 1176 
 
 ARTICLE I. MEANING OF THE TERM 1176 
 
 Sec. 357. Senses in which the term is used 1176 
 
 ARTICLE II. THEORIES AS TO UNDERLYING PRINCIPLES 1177
 
 xxiv CONTENTS. 
 
 PAGE. 
 
 Sees. 358-60. (1) Ultra vires acts are void because of legal incapacity to 
 
 make them 1177 
 
 Note 1183 
 
 Sec. 361. (2) Ultra vires acts are not necessarily illegal 1183 
 
 (3) Ultra vires acts are illegal and void 1183 
 
 Sec. 362. (4) Ultra vires acts are valid if all the shareholders con- 
 sent, and creditors are not .injured 1197 
 
 Sec. 363. (5) Ultra vires acts are valid except as against the state 1197 
 
 ARTICLE III. VARIOUS INTERESTS AFFECTED 1200 
 
 Sec. 364. The state, the parties, the shareholders, the creditors 1200 
 
 ARTICLE IV. APPLICATIONS OF THE DOCTRINE 1203 
 
 Sees. 365-6. 1. Contracts 1203 
 
 (a,) Wholly executed by both parties 1203 
 
 Sec. 367 (b) Wholly executory 1205 
 
 (1) Corporation complainant 1205 
 
 Sec. 368. (2) Other party complainant 1207 
 
 Sec. 369. (c) Partly executed 1211 
 
 (1) Fully performed by the corporation, enforci- 
 
 ble by it 1211 
 
 Sec. 370. Contra 1212 
 
 Sec. 371. (2) Fully performed by other party, notenforci- 
 
 ble by him 1214 
 
 Sec. 372. Contra 1217 
 
 Sec. 373. (d) Specific performance 1224 
 
 Sec. 374. (e) Leases 1224 
 
 (1) Recovery of damages for breach 1224 
 
 Sec. 375. (2) Recovery of unpaid rentals under the con- 
 tract 1224 
 
 Sec. 376. (3) Recovery for use of property 1225 
 
 Sec. 377. (4) Re-entry 1225 
 
 Sec. 378. (5) Recovery of possession in equity 1228 
 
 Sec. 379. (6) Recovery of property in an action for unlaw- 
 ful detention 1231 
 
 Sec. 380. 2. Ultra vires devises and bequests ; theories 1232 
 
 (a) Valid as to everybody except the state, which alone 
 can complain in quo warranto for violation of 
 
 charter 1232 
 
 Sec. 381. (b) Void as to excess and heirs may have set aside 1232 
 
 Sec. 382. 3. Ultra vires torts 1232 
 
 ARTICLE V. WHO CAN COMPLAIN OF ULTRA VIRES ACTS 1233 
 
 Sec. 383. 1. The state 1233 
 
 Sec. 384. 2. The parties 1233 
 
 Sec. 385. 3. The shareholders 1233 
 
 Sec. 386. 4. The creditors : 1233 
 
 Sec. 387. 5. Third parties 1233
 
 CONTENTS. XXV 
 
 PAGE. 
 
 TITLE IV. GENERAL DUTIES AND LIABILITIES 1236 
 
 CHAPTER 15. 
 
 LIABILITIES OTHER THAN UPON CONTRACTS 1236 
 
 ARTICLE I. TORTS 1236 
 
 Sec. 388. (1) Conversion 1236 
 
 Note : Liability for torts in general 1239 
 
 Sec. 389. (2) Nuisance, obstructing a stream 1239 
 
 Sec. 390. (3) Trespass to property 1243 
 
 Sec. 391. (4) Assault and battery 1244 
 
 Note : The old doctrine 1246 
 
 Sec. 392. Joinder of corporation and servant as defendants 1249 
 
 Sec, 393. (5) False imprisonment 1250 
 
 Sec. 394. (6) Libel and slander 1253 
 
 Note : Libel ; slander .1255 
 
 Sec. 395. (7) Malicious prosecution 1256 
 
 Sec. 396. (8) Fraud, deceit and conspiracy 1262 
 
 Sec. 397. (9) Negligence ultra vires torts 1268 
 
 Sec. 398. (10) Charitable corporations 1272 
 
 Note . . : 1278 
 
 Sec. 399. (11) Exemplary damages 1279 
 
 Note 1282 
 
 ARTICLE II. CRIMES 1283 
 
 Sec. 400. (1) Non-feasance 1283 
 
 Sec. 401. (2) Misfeasance 1284 
 
 Sec. 402. (3) Libel 1286 
 
 Note 1286 
 
 ARTICLE III. CONTEMPTS 1287 
 
 Sec. 403. Liability for contempts 1287 
 
 PART IV. 
 
 SPECIAL RELATIONS ARISING FROM THE EXISTENCE OF A 
 CORPORATION. 
 
 DIVISION I. CORPORATE RELATIONS 1291 
 
 TITLE I. THE CORPORATION AND THE STATE 1291 
 
 CHAPTER 16. 
 
 GOVERNMENTAL CONTROL OP CORPORATIONS 1291 
 
 SUBDIVISION I. GENERAL DOCTRINES 1291 
 
 ARTICLE I. BY THE COURTS 1291 
 
 Sec. 404. 1. Generally, by actions at law, and suits in equity 1291 
 
 Sec. 405. 2. Particularly, by visitation 1291 
 
 ARTICLE II. BY LEGISLATIVE BODIES 1292 
 
 Sec. 406. Constitutional limitations 1292 
 
 1. Powers of congress 12 
 
 Sec. 407. 2. Limits on powers of congress 1293 
 
 Sec. 408. 3. Limits on powers of the states 1293
 
 XXVI 
 
 CONTENTS. 
 
 PAGE. 
 
 Sec. 409. 4. General provisions 1294: 
 
 5. State constitutional limitations 1294 
 
 SUBDIVISION II. THE STATE AND ITS OWN CORPORATIONS 1294 
 
 ARTICLE I. CONTROL BY THE COURTS 1294 
 
 Sec. 410. (1) Methods in general 1294 
 
 Sec. 411 . (2) Power of courts to issue the necessary writs 1295 
 
 Sec. 412. A. By courts of law 
 
 (1) By quo warranto, scire facias, or information in nature 
 
 of quo warranto 1298 
 
 Sec. 413. Abuse and misuse, meaning of 1300 
 
 Sec. 414. Illustrations, abuse, misuse or perversion 1300 
 
 (a) Unlawful combinations 1300 
 
 (b) Illegal insurance 1301 
 
 (c) Illegal banking 1301 
 
 (d) Fraudulent organization 1301 
 
 (e) Willful or negligent non-user 1301 
 
 Sec. 415. Ouster for usurpation. Proceedings 1302 
 
 Sec. 416. Illustrations of ouster for usurpation 1305 
 
 (a) Unlawful purpose 1305 
 
 (b) Imperfect organization 1305 
 
 (c) Exercise of corporate powers after expira- 
 
 tion of charter 1305 
 
 (d) Intrusion into corporate office 1305 
 
 Sec. 417. Statute of limitations 1305 
 
 Sec. 418. Waiver 1306 
 
 Sees. 419-20. (2) Mandamus 1308 
 
 (a) Specific duty 1308 
 
 Sec. 421. (b) No specific doty 1313 
 
 Sec. 422. (c) Who may complain 1317 
 
 Note : Mandamus to corporations 1318-21 
 
 Sec. 423. (3) Indictments 1321 
 
 Sec. 424. B. In courts of equity 1321 
 
 (1) Dissolution, general rule 1321 
 
 Sec. 425. Exception 1323 
 
 Sec. 426-7. (2) Injunction 1327 
 
 Note 1331 
 
 ARTICLE II. VISITATION OP CORPORATIONS 1332 
 
 Sec. 428. 1. Private visitor 1332 
 
 Note : Visitation of corporations 1336 
 
 Sec. 429. 2. Public visitor or officer 1337 
 
 ARTICLE III. CONTROL BY LEGISLATIVE ACTION 1337 
 
 Sec. 430-3. 1. Ordinary 1337 
 
 (1) Eminent domain proceedings 1337 
 
 Note : Eminent domain 1344 
 
 Sec. 434-5. (2) Police control 1344 
 
 (a) In general 1344 
 
 Sec. 436. (b) Regulation of rates .... . . 1352
 
 CONTENTS. xxvii 
 
 PAGE. 
 
 Sec. 437. (c) Requiring reports 1363 
 
 Note : Police power 1364-70 
 
 Sec. 438. (3) Taxation 1370 
 
 (a) Corporate elements subject to taxation 1370 
 
 Note ' 1373 
 
 Sec. 439. (b) Capital and capital stock 1373 
 
 Note : Methods of taxing capital stock 1373 
 
 Sec. 440. (c) Tangible property, and movable property 1374 
 
 Note: Taxation of railroads; rolling stock ; 
 
 migratory property 1381 
 
 Sec. 441. (d) Intangible property 138L 
 
 Note : Taxation of patents, copyrights, etc. .1387 
 
 Sec. 443. (e) Special franchises. . '. 1388 
 
 Note : Taxation of corporate franchises, pri- 
 mary ; secondary ; property connected with 
 use of special franchises; methods of 
 
 valuation 1388 
 
 Sec. 444. (g) Gross receipts 1389 
 
 Sec. 445. (h) Excise 1390 
 
 Sec. 446. (i) License 1392 
 
 Sec. 447. (j) Privilege of engaging in interstate commerce . .1393 
 
 Sec. 448. (k) Equal protection of the laws in taxation 1396 
 
 Sec. 449. (1) Government agencies 1397 
 
 Note: Taxation of telegraph companies; 
 
 interstate bridges ; national banks 1398 
 
 Sec. 450. (m) Situs of shares for taxation 1399 
 
 Note : Situs of shares, bills, notes and bonds ; 
 
 corporate debts 1402 
 
 Sec. 451. (n) Taxation of shares held by aliens 1402 
 
 Sec. 452. (o) National taxation of state corporations 1404 
 
 Sec. 453. 2. Legislative control, extraordinary 1404 
 
 (1) Repeal 1404 
 
 (a) Power of parliament 1404 
 
 Sees. 454-5. ' (b) Power of congress 1404 
 
 Sec. 456. (c) Power of state legislatures, no reserve power. 1412 
 
 Sec. 457. Extent of doctrine of Dartmouth College case. . . 1413 
 
 Sec. 458. (d) Power of legislature, under reserve power to 
 
 repeal 1422 
 
 Sees. 459-61. (e) Effect of repeal upon vested rights 1426 
 
 Sees. 462-3. (g) Repeal of general corporation laws 1445 
 
 Sec. 464. (2) Legislative power to amend 1447 
 
 (a) When there is no reservation of a power to 
 
 alter or amend. offer of an amendment 1447 
 
 Sec. 465. Acceptance is essential 1447 
 
 Sec. 466. Material amendment requires unanimous con- 
 sent 1448 
 
 Sec. 467. An immaterial amendment can be accepted by 
 
 a majority 1454
 
 XXviii CONTENTS. 
 
 PAGE. 
 
 Sec. 468. (b) Power to amend under a reserved power to 
 
 to amend, extent of authority 1458 
 
 Sec. 469. General limits of legislative authority under 
 
 the reserved power to amend 1458 
 
 Sec. 470. Acceptance is essential 1461 
 
 Sees. 471-2. Power of majority to accept, may 1461 
 
 Sec. 473. Power of majority to accept, may not accept 
 
 a material amendment against protest of mi- 
 nority 1466 
 
 Note : Amendment of corporate charters. 1472-6 
 
 SUBDIVISION III. THE STATE AND NATIONAL CORPORATIONS 1476 
 
 Sees. 474-5. Status of national corporation within the states 1476 
 
 SUBDIVISION IV. THE STATE AND FOREIGN CORPORATIONS 1480 
 
 ARTICLE I. RIGHTS OP FOREIGN CORPORATIONS 1480 
 
 Sec. 476. (1) Protection of its property 1480 
 
 Sees. 477-8. (2) To do business out of the state creating it. Doctrine of 
 
 comity 1480 
 
 Note 1485, 1489 
 
 Sec. 479. (3) To sue in state courts 1489 
 
 (a) Generally 1489 
 
 Sec. 480. (b) To sue non-residents 1490 
 
 Sec. 481. (c) In the United States courts 1490 
 
 ARTICLE II. EIGHTS OF THE STATE AS TO FOREIGN CORPORATIONS 1491 
 
 Sec. 482. (1) To exclude, general rule 1491 
 
 Sec. 483. (2) Retaliatory laws 1494 
 
 Sec. 484. (3) Discrimination 1498 
 
 Note 1502 
 
 Sec. 485. (4) Limits on power to exclude, government agency 1502 
 
 Sec. 486. (5) Limits on power to exclude, interstate commerce 1503 
 
 Note : Interstate or foreign commerce 1504-7 
 
 Sec. 487. (6) Limits on power to exclude, what is interstate com- 
 merce ; insurance 1507 
 
 Sec. 488. (7) Effect of failure to comply with statutory provisions per- 
 mitting doing business in the state by foreign corpora- 
 
 tions 1510 
 
 Note : Effect of failing to comply with statute, when 
 
 there is a penalty ; when there is no penalty. . 1511 
 
 Sees. 489-90. (8) What is "doing business" in violation of such statutes . .1513 
 Note : What is doing business ; tests ; illustrations. . .1514 
 Sec 491. Owning and using real estate by a foreign corporation is 
 
 doing business 1516 
 
 Sec. 492. (9) Statutes discriminating against non-resident corporations 
 
 as creditors 1517 
 
 ARTICLE III. VISITORIAL POWER OVER FOREIGN CORPORATIONS 1517 
 
 Sec. 493. (1) Forfeiture of charter 1517 
 
 Sec. 494. (2) Ouster from the state . .1517
 
 CONTENTS. xxix 
 
 PAGE. 
 
 Sec. 495. (3) In general there is no visitorial power over foreign corpo- 
 rations, out of the jurisdiction 1519' 
 
 (a) Reinstatement of a member 1519 
 
 Sec. 496. (b) To compel issue of certificate 1521 
 
 Sec. 497. (c) To compel inspection of books 1524 
 
 Sec. 498. (4) Receivers in state courts 1524 
 
 SUBDIVISION V. THE NATIONAL GOVERNMENT AND STATE CORPORATIONS . 1527 
 
 Sec. 499. 1. Under the taxing power 1527 
 
 Sec. 500. 2. Reorganization of state corporation as a national corpora- 
 tion 1529 
 
 Sec. 501. 3. Interstate commerce, regulation according to state laws 1530 
 
 Note 1533 
 
 Sec. 502. 4. Interstate commerce commission 1534 
 
 Sec. 503. 5. Interstate commerce, anti-trust acts 1535 
 
 Sec. 504. 6. Control of mails 1541 
 
 Sec. 505. 7. Receivers in United States courts 1542 
 
 TITLE II. THE CORPORATION AND VARIOUS CLASSES OF PERSONS 1546 
 
 CHAPTER 17. 
 
 THE RELATION OP THE CORPORATION TO ITS PROMOTERS, OFFICERS, SHARE- 
 HOLDERS, CREDITORS AND OTHERS 1546 
 
 SUBDIVISION I. THE CORPORATION AND ITS PROMOTERS 1546 
 
 Sec. 506. Definitions and functions of promoters 1546 
 
 Sec. 507. Rights of corporation, duties of promoters 1546 
 
 Sec. 508. Liability of promoters to the corporation and shareholders. . . .1548 
 
 Sec. 509. Promoters' liability to shareholders 1550 
 
 Sec. 510. Liability of the corporation upon promoters' contracts 1551 
 
 Sec. 511. Liability of promoters to parties with whom they contract. . ... .1553 
 
 Sec. 512. Liability of corporation to promoter for expenses incurred in 
 
 promoting corporation 1558 
 
 SUBDIVISION II. THE CORPORATION AND ITS MEMBERS OR SHAREHOLDERS. .1559 
 
 ARTICLE I. RIGHTS OF THE CORPORATION 1559 
 
 Sec. 513. 1. To corporate existence, estoppel of members to deny cor- 
 porate existence 155$ 
 
 Sec. 514. 2. To issue preferred stock, or increase or decrease the capital 
 
 stock , 1559 
 
 Sec. 515. 3. To enforce contracts of subscription 1559 
 
 (a) General relation of shareholders to the corporation, to 
 t other shareholders, and to creditors ; subscription in- 
 duced by fraud 1559 
 
 Sec. 516. (b) Assnmpsit, misrepresentations, release, change of 
 
 amount of stock, subscription of the whole amount. . 1563 
 
 Sec. 517. (c) Forfeiture for non-payment 1567 
 
 Sec. 518. (d) Calls, how made ; forfeiture 1569 
 
 Sec. 519. (e) Notice of calls 1573 
 
 Sec. 520. (f ) Calls must operate equally . . 1574 
 
 Sec. 521. (g) Calls must be uniform 1575 
 
 Sec. 522. (h) Calls must be made by legal directors 1576
 
 XXX 
 
 CONTENTS. 
 
 PAGE. 
 
 Sec. 523. 4. Assessments beyond full payment of amount subscribed 1579 
 
 Sec. 524. 5. Right to reserve a lien upon shares 1580 
 
 Sec. 525. 6. Right to regulate transfers 1580 
 
 Sec. 526. 7. Right to carry on the corporate enterprise through its proper 
 
 representatives 1580 
 
 Sec. 527. 8. Right to accept amendments 1580 
 
 Sec. 528. 9. Right to dissolve itself 1581 
 
 ARTICLE II. RIGHTS OF SHAREHOLDERS 1581 
 
 Sec. 529. 1. Who are shareholders 1581 
 
 (a) Certificate ; subscription ; payment 1581 
 
 Sec. 530. (b) Certificate and payment in case of increase of 
 
 stock 1582 
 
 Sec. 531. (c) Shares held as collateral security 1585 
 
 Sees. 532-3. (d) Corporate books as evidence of membership 1585 
 
 Sec. 534. 2. Right to vote 1591 
 
 (a) Residence, proxy, and number of votes 1591 
 
 Note : Proxy voting 1596 
 
 Sec. 535. (b) Personal interest of shareholder 1597 
 
 Sec. 536. (c) Pledgor and pledgee 1598 
 
 Sec. 537. (d) Executors 1600 
 
 Sec. 538. (e) Corporation holding its own shares 1601 
 
 Sec. 539. (f) Cumulative voting 1603 
 
 Sees. 540-1. (g) Voting trusts 1604 
 
 Note 1613 
 
 Sec. 542. 3. Right to dividends 1614 
 
 (a) Definition 1614 
 
 Sec. 543. (b) Out of what dividends may be declared ; provis- 
 ion for payment of permanent debts 1616 
 
 Note 1621 
 
 Sec. 544. (c) Stock dividends 1622 
 
 Sees. 545-6. (d) What is a severance of the dividend fund from 
 
 other corporate funds 1628 
 
 Sees. 547-8. (e) Who are entitled to dividends, option contracts 1631 
 Sec. 549. (f) Rights of life-tenant and remainder-man to divi- 
 dends 1638 
 
 Sec. 550. (g) Remedy of shareholders for withholding payment 
 
 of dividends .' 1643 
 
 Note 1645 
 
 Sec. 551. 4. Right to inspect books 4 . 1645 
 
 (a) In general 1645 
 
 Sec. 552. (b) In case of foreign corporations ; general rule 1651 
 
 Sec. 553. Exception 1653 
 
 Sec. 554. 5. Right to transfer shares of stock 1654 
 
 (a) Basis of the right 1654 
 
 Sec. 555. (b) General doctrine as to transfer; nature of certifi- 
 
 cates and how transferred ; refusal of corporation 
 to transfer; remedy of holder at law and in 
 equity; liability of corporation on old and new
 
 CONTENTS. XXXI 
 
 PAGE. 
 
 certificates; who is owner; bona fide transferee; 
 
 theft, fraud, etc 1655 
 
 Sec. 556. (c) General limit on right to transfer ; transfers for pur- 
 pose of evading liability 1661 
 
 Sec. 557. (d) Fraud, forgery, etc 1663 
 
 Sec. 558. (e) Registration of transfers on corporate books 
 
 theories 1663 
 
 (I) Not necessary ; attaching creditor of seller. .1663 
 
 Sec. 559. (2) Registration is necessary; attaching cred- 
 itor of seller ; 1668 
 
 Note : Rules as to registration of transfers ; 
 
 attachment of shares 1673 
 
 Sec. 560. (3) Fraudulent transfer by pledgee 1674 
 
 Sec. 561. (4) Fraudulent transfer by agent 1680 
 
 Sec. 562. (5) Fraudulent transfer in breach of trust 1682 
 
 Sec. 563. (6) Fraudulent transfer in breach of trust, lia- 
 bility of the corporation 1685 
 
 Sees. 564-5. (7) Gift of shares 1688 
 
 Sec. 566. (f) Effect of transfer upon liability of transferrer and 
 
 transferee ; general rule 1692 
 
 Note 1694 
 
 Sec. 567. Transfer of unpaid shares to a bona fide pur- 
 chaser ; liability of transferee 1695 
 
 Sec. 568. (g) Refusal to transfer, remedy 1698 
 
 Sec. 569-70. Mandamus 1701 
 
 Sec. 571. 6. Right to participate in issue of new stock 1703 
 
 Sec. 572. 7. Right to be released from corporate liability 1705 
 
 (a) For fraud or mistake in inducing subscription 1705 
 
 Sec. 573. (b) In case the requisite amount of stock is not sub- 
 scribed 1705 
 
 Sec. 574. (c) By material change in business 1705 
 
 Sec. 575. (d) By forfeiture of shares for non-payment 1705 
 
 Sec. 576. (e) By valid and completed transfer of shares 1705 
 
 Sec. 677. 8. Right to enjoin a change in corporate enterprise unless 
 
 such power is reserved to the state 1705 
 
 Sec. 578. 9. Right to share in distribution of surplus assets upon dis- 
 solution 1 706 
 
 Sec. 579. 10. Right to sue for wrongs done to the corporation 1706 
 
 (a) General doctrine, as to action at law 1706 
 
 Sec. 580. (b) Suits in equity 1709 
 
 Sees. 581-2. General rule and exceptions 1709 
 
 Sec. 583. (c) Restrain ultra vires acts 1715 
 
 Sec. 584. (d) Causes for which, and circumstances under which 
 
 shareholders may sue 1716 
 
 Note 1723 
 
 Sec. 585. (e) Good-faith shareholder only 1724 
 
 SUBDIVISION III. THE CORPORATION AND ITS OFFICERS 1727 
 
 ARTICE I. RIGHTS OF THE CORPORATION 1727
 
 XXXli CONTENTS. 
 
 Sec. 586. 1. General doctrine .......................................... 1727 
 
 Sec. 587. 2. Theories of the relation of the directors to the corporation. .1727 
 (a) Agents of the corporation, not trustees of sharehold- 
 
 ers ............................................... 1727 
 
 Sec. 588. (b) Trustees ............................................ 1729 
 
 Sec. 589. (c) Mandataries ................. ....................... 1731 
 
 Sec. 590. 3. General rules as to duties and liabilities of directors to the 
 
 corporation ............................................. 1735 
 
 Sec. 591. 4. Eight of corporation to all profits made by officers by virtue 
 
 of their office ............................................ 1735 
 
 Sec. 592. 5. Right of corporation to careful service by its officers, degree 
 
 of care due .............................................. 1737 
 
 Note : Care required of officers ......................... 1743 
 
 Sec. 593. 6. Right of corporation to remove officers ..................... 1744 
 
 ARTICLE II. RIGHTS OF OFFICERS ...................................... 1746 
 
 Sees. 594-5. 1. To manage the ordinary business of the corporation ---- 1746 
 
 Sec. 596. 2. Right to deal with the corporation. Theories .......... 1750 
 
 (a) Dealings are not necessarily void ................. 1750 
 
 Note .......................................... 1753 
 
 Sec. 597. (b) Corporation can refuse to perform or may have 
 
 contract set aside .............................. 1753 
 
 Sec. 598. 3. Right of officer to compensation ....................... 1755 
 
 (a) General doctrine ................................. 1755 
 
 Note .......................................... 1757 
 
 Sees. 599-600. (b) Strict rule ....................................... 1758 
 
 SUBDIVISION IV. THE CORPORATION AND CREDITORS .................... 1760 
 
 Sec. 601. (See the topic the Creditors and the Corporation) ............. 1805 
 
 SUBDIVISION V. THE CORPORATION AND OUTSIDE PARTIES ............... 1760 
 
 Sec. 601a. General duties and liabilities ................................ 1760 
 
 ARTICLE I. NOTICE TO THE CORPORATION ............................... 1760 
 
 Sec. 602. 1. Notice to a director ............... ......................... 1760 
 
 Sec. 603. 2. Notice to an officer, when he is acting in his own behalf ____ 1763 
 
 Note .................................................... 1765 
 
 Sec. 604. 3. Notice to a servant ........................................ 1765 
 
 DIVISION II. INDIVIDUAL RELATIONS .................................. 1767 
 
 TITLE I. INTERNAL RELATIONS ................................. ....... 1767 
 
 CHAPTER 18. 
 
 RELATION OF PROMOTERS, SHAREHOLDERS, OFFICERS, ETC., AMONG THEM- 
 SELVES, TO ONE ANOTHER, AND TO OTHER PARTIES .................. 1767 
 
 SUBDIVISION I. PROMOTERS ............................................ 1767 
 
 Sec. 605. 1 . Relation to the state ....................................... 1767 
 
 Sec. 606. 2. Relation to the corporation, the shareholders and to third 
 
 parties ............................. . ................... 1767 
 
 Sec. 607. 3. Relation among themselves ..... ........................... 1767 
 
 SUBDIVISION II. SHAREHOLDERS OR MEMBERS .......................... 1770 
 
 Sec. 608. 1. Relation to the state ..................................... 1770 
 
 Sec. 609. 2. Relation to the corporation, promoters and officers ........ 1770
 
 CONTENTS. XXXlll 
 
 PAGE. 
 
 Sec. 610. 3. Relation among themselves 1770 
 
 (a) Right to good faith upon the part of fellow-sub- 
 scribers to the stock 1770 
 
 Sec. 611. (b) Right to equality, in proportion to stock owned 1770 
 
 (1) In management : Voting; notice of meetings, 
 
 etc 1770 
 
 Sec. 612. (2) In distribution of profits 1770 
 
 Sec. 613. (3) In contributing to the corporate enterprise, 
 
 equality and uniformity of calls 1771 
 
 Sec. 614. (4) In discharging corporate debts 1771 
 
 Note : Statutory liability 1772 
 
 Sec. 615. (5) In distribution of corporate assets upon dis- 
 solution 1773 
 
 Sec. 616. In case of preferred shareholders 1775 
 
 Sees. 617-8. (c) Right to good faith upon the part of the major- 
 ity : Power of the majority 1775 
 
 (1) In the management of the corporate affairs. .1775 
 
 Sees. 619-20. (2) In selling all the corporate property 1780 
 
 Sec. 621. (3) In surrendering the corporate charter 1789 
 
 Sec. 621a. (4) In accepting material amendments 1790 
 
 Sec. 622. 4. Relation of shareholders and creditors 1790 
 
 Sec. 623. 5. Relation of shareholders and third parties 1790 
 
 SUBDIVISION III. OFFICERS 1790 
 
 Sec. 624. 1. Relation to the corporation 1790 
 
 Sec. 625. 2. Relation to the shareholders 1790 
 
 (a) Rights of shareholders 1790 
 
 (1) Individual, vote, dividends, inspect books, 
 
 transfer shares, etc 1790 
 
 Sec. 626. (2) Collective, secondary 1790 
 
 Sec. 627. (b) Rights of officers ' 1791 
 
 (1) To deal with shareholders ; officers are not trus- 
 tees for shareholders 1791 
 
 Sec. 628. (2) To contribution or indemnity, where they are 
 
 required to discharge corporate debts for which 
 
 shareholders are also liable 1794 
 
 Sec. 629. 3. Relation of officers among themselves 1796 
 
 Sec. 630. 4. Relation to creditors 1796 
 
 Sec. 631. 5. Relation to third parties 1796 
 
 (a) False warranty of authority, ultra vires 1796 
 
 Sec. 632. (b) Torts in general 1799 
 
 Sec. 633. (c) Negligence 1800 
 
 TITLE II. EXTERNAL RELATIONS 1805 
 
 CHAPTER 19. 
 
 THE CORPORATE CREDITORS 1805 
 
 SUBDIVISION I. THE STATE AND CORPORATE CREDITORS 1805 
 
 ARTICLE I. RIGHTS OF THE STATE, 1805 
 
 iii WIL. CAS.
 
 XXXIV CONTENTS. 
 
 PAGE. 
 
 Sec. 634. 1. To change remedies 1805 
 
 Sec. 635. 2. To dissolve the corporation 1807 
 
 Sec. 636. 3. To amend corporate charters; repeal statutory liability 1807 
 
 Sec. 637. 4. To protect, or discriminate in favor of, resident creditors.. . .1807 
 
 ARTICLE II. RIGHTS OP CREDITORS 1808 
 
 Sec. 638. To have their security and remedy against corporate assets sub- 
 stantially preserved without impairment 1808 
 
 SUBDIVISION II. THE CORPORATION AND ITS CREDITORS 1808 
 
 ARTICLE I. RIGHTS OF THE CORPORATION 1808 
 
 Sec. 639. 1. To manage its own business 1808 
 
 Sec. 640-1. 2. To dispose of its property 1809 
 
 Sec. 642. 3. To accept amendments 1814 
 
 Sec. 643. 4. To surrender the charter 1815 
 
 Sec. 644. 5. To consolidate with other corporations 1815 
 
 Sec. 645. 6. Right to prefer creditors. Theories 1815 
 
 (a) Can 1815 
 
 Sec. 646. (b) Can not after insolvency 1819 
 
 Sec. 647. (c) Going concern, attachment 1827 
 
 Sec. 648. . ' (d) Extra-territorial effect of preferences 1828 
 
 Sec. 649. 7. Right to prefer officer creditors. Theories 1832 
 
 (a) Can not 1832 
 
 Sec. 650. Reasons 1835 
 
 Sec. 651. (b) Can 1836 
 
 ARTICLE II. RIGHTS OF CREDITORS 1841 
 
 Sec. 652. 1. In general 1841 
 
 Sec. 653. 2. At law ; execution 1842 
 
 Sec. 654. 3. In equity. Theories '. 1847 
 
 (a) Assets are a trust fund for creditors 1847 
 
 Sec. 655. (b) Assets are not a trust fund ; liability is based on fraud . 1852 
 
 Sec. 656-7. 4. Right to enjoin waste 1862 
 
 Sec. 668. 5. Right to enjoin threatened wrong 1865 
 
 Sec. 659. 6. Right to set aside fraudulent corporate conveyance 
 
 Sec. 660. 7. Conditions precedent to creditor's rights to maintain suit 
 
 in equity '. 1868 
 
 SUBDIVISION III. THE CREDITORS AND CORPORATE OFFICERS 1874 
 
 ARTICLE I. RIGHTS OF CREDITORS 1874 
 
 Sees. 661-2. A. Common law liability of officers 1874 
 
 1. Directors' responsibility 1874 
 
 Sec. 663. 2. Care required of officers 1884 
 
 Sec. 664. 3. Ultra vires transactions 1888 
 
 Sec. 665. B. Statutory liability 1888 
 
 1. General nature of 1888 
 
 Note 1892 
 
 Sec. 666. 2. When contractual and when penal. Enforcement in 
 
 foreign state 1892 
 
 ARTICLE II. RIGHTS OF OFFICERS 1899 
 
 Sec. 667. 1 To manage corporate affairs within their powers, and in good 
 
 faith, without interference bv creditors . . . . 1899
 
 CONTENTS. 
 
 XXXV 
 
 PAGE. 
 
 Sec. 668. 2. To contract or deal with the corporation 1899 
 
 Sec. 669. 3. To obtain a preference as creditor 1899 
 
 SUBDIVISION IV. CREDITORS AND SHAREHOLDERS 1899 
 
 I. RIGHTS OF CREDITORS 1899 
 
 Sec. 670. A. ARISING FROM IMPERFECT INCORPORATION 1899 
 
 B. COMMON LAW OR EQUITABLE LIABILITY OF SHAREHOLDERS 1900 
 
 ARTICLE I. ARISING FROM OWNERSHIP OF SHARES 1900 
 
 Sec. 671. 1. Who are shareholders 1900 
 
 Note 1900 
 
 Sec. 672. 2. Creditors have no right, at common law or in equity, to 
 
 have more than the face value of shares paid up 1900 
 
 Sec. 673. 3. Right of creditors to have the full face value of shares 
 
 paid, if necessary to pay creditors, general rule 1902 
 
 Note : Unpaid subscriptions ; set off 1906 
 
 Sec. 674. 4. Theories as to the basis of this right 1907 
 
 (a) Trust-fund doctrine; set-off, statute of limitations. . .1907 
 
 Sec. 675. (b) Fraud in equity 1911 
 
 Sec. 676. (c) Fraud at law ; joint tort-feasors 1917 
 
 Sec. 677. 5. Exceptions to the general rule 1919 
 
 (a) By payment of a corporation debt by issue of stock 
 
 in good faith 1919 
 
 Sec. 678. (b) To save a "going concern" 1923 
 
 Sec. 679. (c) In case of a gift of shares 1933 
 
 Sees. 680-1. 6. Payment of shares in property 1936 
 
 (a) Good-will 1936 
 
 Sec. 682. (b) Valuation of property : True value rule. Notice.. .1943 
 
 Note .....* 1947 
 
 Sec. 683. Notice of value from articles of incorporation 1947 
 
 Sec. 684. Statute, notice of value 1949 
 
 Sec. 685. (c) Actual fraud rule 1950 
 
 Note 1951 
 
 Sec. 686. 7. Fictitious issue of stock 1951 
 
 (a) Meaning of the term 1951 
 
 Note 1952 
 
 Sec. 687. (b) Liability upon fictitiously issued stock: "No cor- 
 poration shall issue stock or bonds, except for 
 money paid, labor done, or property actually re- 
 ceived, and all fictitious increase of stock or in- 
 debtedness shall be void" 1953 
 
 Sec. 688. 8. Remedy of creditors I960 
 
 (a) Conditions precedent; in general, exhaust remedies 
 
 against corporation I960 
 
 Sec. 689. (b) At law and in equity 
 
 Sec. 690. (c) In the United States courts 1962 
 
 Sec. 691. (d) Mandamus, or suit in equity, to have calls made . . .1964 
 
 Sec. 692. (e) Parties 1965 
 
 Note 1967
 
 XXXVI CONTENTS. 
 
 PACK. 
 
 Sec. 693. (f) Assignee or receiver in a foreign state 1968 
 
 Mote 1972 
 
 Sec. 694. (g) Extra-territorial effect of a judgment. Statute of 
 
 limitations 1972 
 
 Note 1976 
 
 ARTICLE H. LIABILITY ARISING FROM WITHDRAWAL OF ASSETS 1977 
 
 Sec. 695. 1. What is a withdrawal of assets. 1917 
 
 Sec. 696. 2. Withdrawing assets which creates insolvency 1979 
 
 Note 1979 
 
 Sec. 697. 3. Paying dividends after insolvency 1980 
 
 Sec. 698. 4. Dividends received in good faith which were paid oat of 
 
 capital 1981 
 
 Sec. 699. 5. Remedy only in equity, not at law 1985 
 
 C. STATUTORY LIABILITY OF SHAREHOLDERS 1987 
 
 ARTICLE I. GENERAL CHARACTERISTICS 1987 
 
 Sec. 700. 1. Kinds: Contractual and penal 1987 
 
 Note 1989 
 
 Sec, 701. 2. General nature of contractual statutory liability 1990 
 
 Note; survival ; set-off 1991 
 
 Sees. 702-3. 3. To what it applies ; interpretation; debts 1992 
 
 Sec. 704. 4. General nature of penal liability . : 1996 
 
 Note 1996 
 
 ARTICLE EC. PARncirLAR KINDS OF CONTRACTUAL LIABILITY 1997 
 
 Sec. 705. 1. As to legal character 
 
 (a) Secondary, limited and joint 1997 
 
 Sec. 706. (b) Secondary, unlimited and several 1997 
 
 Sec. 707. (c) Primary, unlimited, partnership 1998 
 
 Sec. 708. (d) Primary, limited, joint, enforceable only in equity. . .2000 
 
 Sec. 709. (e) Primary, limited, several, enforceable at law 2001 
 
 Sec. 710. 2. As to amount 2003 
 
 (a) Unlimited 2003 
 
 Sec. 711. (b) Double. Who liable 2003 
 
 Sec. 712. Double liability; assignee can not enforce; suit only 
 
 after corporation can not pay 2005 
 
 Sec. 713. (c) Proportional 2009 
 
 Sec. 714. (d) For labor and services 2010 
 
 ARTICLE ILL ENFORCEMENT OF THE STATUTORY LIABILITY 2012 
 
 Sec. 715. 1. In general 2012 
 
 Note: Special remedies; receiver or assignee; secondary 
 
 liability ; parties ; statute of limitations 2013 
 
 Sec. 716. 2. Constitutional provisions, when self-executing 2013 
 
 Sec. 717. 3. Self-executing provisions ; special remedy ; remedy in equity 
 
 or at law ; repeal 2014 
 
 Sec. 718. 4. Self-executing provisions. When enforceable in other states. 2018 
 
 Sec. 719. 5. Enforcement in other states 2021 
 
 (a) When it will not be enforced 2021 
 
 Sec. 720. (b) When and ho wit wfll be enforced in other states.. ..2029
 
 CONTENTS. XXXVJi 
 
 PAGB. 
 
 Sec. 721. (c) Penal liability 2033 
 
 II. RIGHTS OF SHAREHOLDERS 2034 
 
 Sec. 722. 1. To receive dividends from profits earned 2034 
 
 Sec. 723. 2. To keep dividends received in good faith, though paid out of 
 
 capital when solvent 2034 
 
 Sec. 724. 3. To be released from liability 2034 
 
 (a) By fraud in securing subscription 2034 
 
 Sec. 725. (b) By forfeiture of shares for non-payment 2034 
 
 Sec. 726. (c) By acceptance, by corporation, of a material amend- 
 ment, when not assented to by the shareholder 2034 
 
 Sec. 727. (d) By completed transfer of shares 2035 
 
 SUBDIVISION V. RIGHTS OF CORPORATE CREDITORS AMONG THEMSELVES. . .2035 
 
 ARTICLE I. PRIORITY 2035 
 
 Sec. 728. 1. In general by promptness of action 2035 
 
 Sec. 729. 2. In case of unpaid subscriptions, or withdrawal of assets. .2035 
 Sec. 730. 3. In case of statutory liability of shareholders or officers. . .2035 
 
 Sec. 731 . 4. By voluntary preference by corporation 2035 
 
 (a) General creditors 2035 
 
 Sec. 732. (b) Director-creditors 2036 
 
 Sees. 733-5. 5. By statutory provisions. Resident and non-resident 
 
 creditors 2036 
 
 (a) Natural and artificial non-resident persons as cred- 
 itors 2036 
 
 Sec. 736. (b) Power to subject corporate assets within the state 
 
 to the payment of home creditors 2050 
 
 Sec. 737. 6. Power of the court to provide for the payment of the 
 
 claims of certain creditors in preference to prior liens. . .2053 
 
 ARTICLE II. CONTRIBUTION AS TO EXPENSE OF ENFORCING REMEDIES 2062 
 
 Sec. 738. Contribution is allowed. . . .2062 
 
 APPENDIX. 
 
 Form I. Subscription to capital stock prior to organization 2065 
 
 II. Subscription to stock in corporation to be formed 2065 
 
 III. Statutory subscription 2066 
 
 IV. Conditional subscriptions 2066 
 
 V. Application for incorporation 2066 
 
 VI. Certificate of incorporation 2066 
 
 VII. Charter of United States steel corporation 2069 
 
 VIII. Waiver of notice of first meeting 2074 
 
 IX. Proxy of subscribers, first meeting 2074 
 
 X. Assignment of subscription to stock 2075 
 
 XI. Waiver of notice of meeting to increase stock 2075 
 
 XII. Waiver of notice of assessment of unpaid stock 2076 
 
 XIII. By-laws 2077 
 
 XIV. General scheme for by-laws 2079
 
 XXXV111 
 
 CONTENTS. 
 
 PAGE. 
 
 XV. Minutes of first meeting 2083 
 
 XVI. Directions for using forms 2086 
 
 XVII. Option contract 2089 
 
 XVIII. Underwriting contract 2095 
 
 XIX. Agreement between corporation and promoter 2097 
 
 XX. Unincorporated trust 2098 
 
 XXI. Prospectus 2098 
 
 XXII. Certificate of stock 2098 
 
 XXIII. Preferred and guaranteed stock 2100 
 
 XXIV. Voting trust 2100 
 
 XXV. Corporate notes, signatures and acknowledgments 2103
 
 TABLE OF REPORTED CASES. 
 
 {.References are to Pages.'] 
 
 Adams Express Co. v. Ohio State Auditor, 165 U. S. 194 1381 
 
 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 1535 
 
 Allen v. Curtis, 26 Conn. 456 1727 
 
 Allen v. Montgomery R. Co., 11 Ala. 437 (extract) 1960 
 
 American Live Stock C. Co. v. Chicago L. S. Ex., 143 111. 210 682 
 
 American National Bank v. Dallas T. W. Mfg. Co., 39 S. W. Rep. (Tex.) 
 
 955 (extract) 1827 
 
 American Ry.-Frog Co. v. Haven, 101 Mass. 398 J601 
 
 American Union Telegraph Co. v. Union Pacific Railroad Co., 1 McCrary 
 
 188 1225 
 
 Anderson v. Middle & E. T. Cent. R. Co., 91 Tenn. 44 511 
 
 Anglo-Continental Corp. of Western Australia, Limited, 67 L. J. Ch. 179, 
 
 78 L. T. R. (N. S.) 157 1773 
 
 Armington v. Palmer, 21 R. I. 109, 42 Atl. 308 820 
 
 Armstrong v. Karshner, 47 Ohio St. 276 526 
 
 Ashton v. Burbank, 2 Dillon (U. S. Circuit) 435 87 
 
 Astor v. Arcade Railway Co., 113 N. Y. 93 363 
 
 Attorney-General v. Fidelity and Casualty Ins Co., 39 Minn. 538 (extract) 1517 
 Attorney-General v. The Legrand Roller Skating Rink Co., 143 111. 118.. 1321 
 
 Attorney-General, Ex rel. Minor, v. Lorman, 59 Mich. 157 605 
 
 Attorney-General v. Tudor Ice Co., 104 Mass. 239 1326 
 
 Aurora Agricultural and Horticultural Society of Aurora v. Paddock, 80 
 
 111 . 263 1065 
 
 B 
 
 Bacon v. Robertson, 18 How. (59 U. S.) 480 899 
 
 Baltimore City Passenger R. Co. v. Hambleton, 77 Md. 341 1582 
 
 Baltimore and Potomac R. Co. v. Fifth Baptist Church, 137 U. S. 568 1 132 
 
 Bank of Augusta v. Earle, 13 Peters (38 U. S.) 519 1480 
 
 Bank of Jamaica v. Jefferson, 92 Tenn. 537 1128 
 
 Bank of Little Rock v. McCarthy, 55 Ark. 473 848 
 
 Bank of Poughkeepsie v. Ibbotson, 24 Wend. (N. Y.) 473 2001 
 
 Bank of the State of South Carolina v. Gibbs, 3 McCord (S. C.) *377 .... 221 
 
 Bank of United States v. Dandridge, 12 Wheat. 64 854 
 
 (xxxix)
 
 xl TABLE OF REPORTED CASES. 
 
 [References are to Pages.] 
 
 Bank of United States v. Planters' Bank, 9 Wheat. 904 558 
 
 Bank of TJtica v. Srnalley, 2 Cowen (N. Y.) 770 (extract) 1129 
 
 Bardstown and Louisville Railroad Company v. Metcalfe, 4 Met. (Ky.) 199, 
 
 81 Am. Dec. 541 (extracts) 1074 
 
 Barned's Banking Company, In re, L. R. 3 Ch. App. Cas. 105 1051 
 
 Barrow Steamship Company v. Kane, 170 TJ. S. 100 1111 
 
 Barry v. Merchants' Exchange Company, 1 Sandford's Chancery (N. Y.) 
 
 280 766 
 
 Bateman v. The Mid- Wales Railway Co., 35 L. J. (C. P.) 205 947 
 
 Behre v. National Cash Register Co., 100 Ga. 213 1253 
 
 Belfast and Moosehead R. Co. v. City of Belfast, 77 Me. 445 1616 
 
 Bell v. The Bank of Nashville, Peck (Tenn.) 269 279 
 
 Belton v. Hatch, 109 N. Y. 593 178 
 
 Benbow v. Cook, 115 N. C. 324 414 
 
 Bennison v. McConnell, 56 Neb. 46 1771 
 
 Bergeron v. Hobbs, 96 Wis. 641 611 
 
 Bissell v. The Michigan Southern and N. I. Railroad Companies, 22 N. Y 
 
 259 1183 
 
 Bjorngaard v. Goodhue Co. Bank, 49 Minn. 483 1596 
 
 Blake v. McClung, 172 TJ. S. 239 2036 
 
 Blake v. McClung, 176 U. S. 59 2045 
 
 Bloede Co. v. Bleode, 84 Md. 129 1159 
 
 Board of Commissioners of Hamilton County v. Mighels, 7 Ohio State, 
 
 109 214 
 
 Bolander v. Stevens, 23 Wend. (N. Y.) 103 2 
 
 Bond v. Terrell Cotton and Woolen Manufacturing Co., 82 Tex. 309 1211 
 
 Boston Glass Manufactory v. Langdon, 24 Pick. (Mass.) 49 866 
 
 Boyce v. Trustees of Towsontown Station of the M. E. Church, 46 Md. 
 
 359 642 
 
 Boyd v. Peach Bottom Railway Co., 90 Pa. St. 169 522 
 
 Bradbury v. Boston Canoe Club, 153 Mass. 77 940 
 
 Bradley v. Reppell, 133 Mo. 545 868 
 
 Broadway Bank v. McElrath, 13 N. J. Eq. 24 1663 
 
 Brokaw v. New Jersey R., etc., Co., 32 N. J. Law (3 Vroom) 328 1249 
 
 Bronson v. La Crosse and Milwaukee R. Co., 2 Wall. (69 U. S.) 283 1713 
 
 Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y. 524 871 
 
 Bright v. Lord, 51 Ind. 272 1635 
 
 Brinkerhoff-Farris Trust & Savings Co. v. Home Lumber Co., 118 Mo. 447.1162 
 Brunswick Gas Light Company v. United Gas, Fuel and Light Company, 
 
 85 Me. 532 1071 
 
 Bryant's Pond Steam Mill Co. v. Felt, 87 Maine 234 474 
 
 Buck v. Ross, 68 Conn. 29 1977 
 
 Budd v. Multnomah St. R. Co., 15 Ore. 413 1569 
 
 Buffalo and N. Y. City R. Co. v. Dudley, 14 N. Y. 336 1461 
 
 Busenback v. The Attica and Bethel Gravel Road Co., 43 Ind. 265 600 
 
 Butternuts and Oxford Turnpike Co. v. North, 1 Hill (N. Y.) 518 525
 
 TABLE OF REPORTED CASES, xli 
 
 [References are to Pages.] 
 C 
 
 California v. Pacific R. Co., 127 U. S. 1 (extract) 1478 
 
 Camden and Atlantic R. Co. v. May's Landing, etc., R. Co., 48 N. J. L. 
 
 530 (extracts) 1176 
 
 Camden v. Stuart, 144 U. S. 104 (extract) 1942 
 
 Cameron v. Kenyon-Connell Com. Co., 22 Mont. 312 1800 
 
 Canfield v. Gregory, 66 Conn. 9 647 
 
 Capps & McCreary v. Hastings Prospecting Company, 40 Neb. 470 239 
 
 Carey v. Williams, 79 Fed. Rep. 906 1586 
 
 Case v. Kelly, 133 U. S. 21 1012 
 
 Case of Suttton's Hospital, 10 Coke 23a (extracts) 264 
 
 Casey v. Galli, 94 U. S. (4 Otto) 673 1529 
 
 Cass v. Pittsburg, Virginia and Charleston Railway Co., 80 Pa. St. 31 538 
 
 Catlin v. Eagle Bank, 6 Conn. 233 1815 
 
 Central Pacific R. Co. v. Gallatin, 99 U. S. 700 1405 
 
 Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 24 1178 
 
 Chandlery. Bacon, 30 Fed. Rep. 538 1546 
 
 Chapman v, Iron Clad Rheostat Co., 62 N. J. Law 497 1045 
 
 Chase National Bank v. Faurot, 149 N. Y. 532 1150 
 
 Chater v. San Francisco Sugar Ref. Co., 19 Cal. 219 80 
 
 Chestnut Hill Co. v. Rutter, 4 Serg. & R. (Pa.) *6 1239 
 
 Chicago, R. I. & P. R. Co. v. Union Pacific R. Co., 47 Fed. Rep. 15 (extract)1177 
 
 Child v. Boston & F. I. Works, J37 Mass. 516 1992 
 
 Child v. Hudson's Bay Co., 2 P. Wms. 207 1161 
 
 Christensen v. Eno, 106 N. Y. 97 1933 
 
 Cincinnati Cooperage Company v. Bate, 96 Ky. 356 827 
 
 Cincinnati, Lafayette and Chicago R. Co. v. The Danville and Vincennes 
 
 R. Co., 75111. 113 664 
 
 City and County of San Francisco v. Spring Valley Water- Works, 48 
 
 Cal. 493 345 
 
 City of Denver v. Sherret, 88 Fed. Rep. 226 1765 
 
 City of Detroit v. Detroit and Howell Plank Road Co., 43 Mich. 140 1458 
 
 Clearwater v. Meredith, 1 Wallace (68 U. S.) 25 984 
 
 Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. 
 
 Closser, 126 Ind. 348 960 
 
 Cochran v. Arnold, 58 Pa. St. 399 625 
 
 Cole v. LaGrange, 113 U. S. 1 554 
 
 Cole v. Millerton Iron Co., 133 N. Y. 164 1866 
 
 Coleman v. White, 14 Wis. 700 2000 
 
 Colonial Bank v. Whinney, L. R. 30 Ch. Div. 261 801 
 
 Commercial Fire Insurance Co. v. Board of Revenue, 99 Ala. 1 773 
 
 Commonwealth v. Crompton, 137 Pa. St. 138 1688 
 
 Commonwealth v. Cullen, 13 Pa. St. 133 417 
 
 Commonwealth v. Detwiler, 131 Pa. St. 614 1W1 
 
 Commonwealth v. Hemmingway, 131 Pa. St. 614 ]591 
 
 Commonwealth v. New York, etc., Railroad Co., 132 Pa. St. 591 (extract). 101 4 
 Commonwealth v. Smith, 10 Allen (Mass.) 448 (extracts) 1070
 
 xlii TABLE OF REPORTED CASES. 
 
 [References are to Pages.] 
 
 Commonwealth v. Texas and Pacific R. Co., 98 Pa. St. 90 1476 
 
 Compton v. Railway Company, 45 Ohio St. 592 995 
 
 Contract Corporation, Ex parte, L. R. 3 Ch. App Cas. 105 1051 
 
 Cooke v. Marshall, 191 Pa. St. 315 761 
 
 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727. (Extract.) 1503 
 
 Coppage v. Button, 124 Ind. 401 469 
 
 Coppin v. Greenlees & Ransom Co., 38 Ohio St. 275 1048 
 
 Corey v. Wadsworth, 118 Ala. 488 (extract) 1836 
 
 County of San Mateo v. Southern Pacific R. Co., 13 Fed. Rep. 722 36 
 
 Crafford v. Supervisors, etc., 87 Va. 110 51 
 
 Curtis v. Tracy, 169 111. 233 650 
 
 Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365 1698 
 
 D 
 
 Dalton & M. R. Co. v. McDaniel, 56 Ga. 191 (extract) . . .- 1964 
 
 Dartmouth College v. Woodward, 4 Wheat. 518 708 
 
 Davenport v. Lines, 72 Conn. 118 1980 
 
 Davis v. Nebraska National Bank, 51 Neb. 401, 6 Am. & Eng. Corp. 
 
 Cas. (N. S.) 593 1130 
 
 Deaderick v. Wilson, 8 Baxt. (67 Tenn.) 108 1791 
 
 Demarest v. Flack, 128 N. Y. 205 1486 
 
 Denny Hotel Co. v. Schram, 6 Wash. 134 553 
 
 Denver Fire Insurance Co. v. McClelland, 9 Colo. 11 1217 
 
 DeWitt v. The City of San Francisco, 2 Cal. 289 1019 
 
 Dexter Savings Bank v. Friend, 90 Fed. Rep. 703 1796 
 
 Directors of the Long Island R. Co., In re, 19 Wend. (N. Y.) 37 1157 
 
 Distilling and Cattle Feeding Company v. People, 156 111. 448 978 
 
 Dodge v. Woolsey, 18 How. (59 U. S.) 331 88 
 
 Donworth and Behan v. Coolbaugh, 5 Iowa 300 1445 
 
 Dousman v. The Wisconsin and Lake Superior Mining and Smelting Co., 
 
 40 Wis. 418 1703 
 
 Doyle v. Continental Ins. Co., 94 U. S. 535 1491 
 
 Doyle v. Mizner, 42 Mich. 332 632 
 
 Droitwich Salt Co. v. Curzon, L. R. 3 Exch. 35 764 
 
 Dronfiekl Silkstone Coal Company, In re, L. R. 17 Ch. Div. 76 1041 
 
 Duke v. Markham, 105 N. C. 131, 18 Am. St. Rep. 889 833 
 
 Dunn v. University of Oregon, 9 Ore. 357 298 
 
 Durfee v. Old Colony and Fall River R. Co., 5 Allen (Mass.) 230 1462 
 
 E 
 
 Eagle Insurance Co. v. Ohio, 153 U. S. 446 1363 
 
 East Birmingham Land Co. v. Dennis, 85 Ala. 565 807 
 
 Eastern Counties Railway Co. v. Broom, 6 Exch. (Welsby, H. & G.) 314, 
 
 2 Eng. L. & Eq. 406 1244 
 
 E.lgerly v. Emerson, 23 N. H. 5,55 851 
 
 Edgeworth v. Wood, 58 N. J. L. 463. . 28
 
 TABLE OF REPORTED CASES. xliii 
 
 [References are to Pages.] 
 
 Edinboro' Academy v. Robinson, 37 Pa. St. 210 445 
 
 Edwards v. Warren Linoline and Gasoline Works, 168 Mass. 564 171 
 
 Ellis v. Marshall, 2 Mass. 269, 3 Am. Dec. 49 306 
 
 Ellis v. Ward, 137 111. 509 1729 
 
 Enterprise Ditch Co. v. Moffitt, 58 Neb. 442, 76 Am. St. Rep. 122 1579 
 
 Erie & Northeast R. v. Casey, 26 Pa. St. 287 .1435 
 
 Erwin v. Oldham, 6 Yerger (14Tenn.) 185 ' 815 
 
 Estey Manufacturing Company v. Runnels, 55 Mich. 130 631 
 
 Evans v. The Philadelphia Club, 50 Pa. St. 107 1165 
 
 Exchange National Bank v. Capps, 32 Neb. 242 1122 
 
 Ex parte, see name of party. 
 
 F 
 
 Fairfield Savings Bank v. Chase, 72 Maine 226 1760 
 
 Falconer & Higgins v. Campbell, 2 McLean (U. S. Circuit Ct.) 195 287 
 
 Farmers' Loan & Trust Co. v. N. Y. & Northern R. Co., 150 N. Y. 410 . . .1776 
 
 Farrington v. Putnam, 90 Maine 405 1029 
 
 Farrington v. Tennessee, 95 U. S. 679 1370 
 
 Farrior v. New Eng. Mortgage Security Co., 88 Ala. 275 1515 
 
 Farwell Co. v. Wolf, 96 Wis. 10 1197 
 
 Fay v. Noble, 7 Gush. (Mass.) 188 677 
 
 Fidelity Insurance, Trust, etc., Co. v. Niven, 5 Houst. (Del.) 416 1088 
 
 Fietsam v. Hay, 122 111. 293 141 
 
 Finnegan v. Noerenberg, 52 Minn. 239 614 
 
 Fire Insurance Patrol v. Boyd, 120 Pa. St. 624 1272 
 
 First National Bank v. Peavey, 69 Fed. Rep. 455 (extract) 1962 
 
 Fisher v. Essex Bank, 5 Gray (Mass.) 373 1668 
 
 Fiske's Estate, In re, 111 N. Y. 66 1034 
 
 Fitzpatrick v. Rutter, 160 111. 282 644 
 
 Flinn v. Bagley, 7 Fed: Rep. 785 1902 
 
 Flint & F. P. R. Co. v. Woodhull, 25 Mich. 99 398 
 
 Flint v. Pierce, 99 Mass. 68 1174 
 
 Florence Land and Public Works Co., In re, v. NicoPs Case, L. R. 29 
 
 Ch. Div. 421 504 
 
 Florsheim Bros. Dry Goods Co. v. Lester, 60 Ark. 120 1513 
 
 Forrester v. Boston & M. Cons. C. S. & M. Co., 21 Mont. 544 1780 
 
 Foster v. Borax Co., 80 L. T. R. (N. S.) 461 1863 
 
 Foster v. Chase, 75 Fed. Rep. 797 547 
 
 Foster v. Essex Bank, 16 Mass. 245 895 
 
 Foster v. Moulton, 35 Minn. 458 646 
 
 Foster & Sons v. Commissioners, etc., L. R. 1 Q. B. D. 516 (1894) 60 
 
 Fowler v. Bell, 90 Tex. 150 (extract) 1828 
 
 Franklin Bridge Co. v. Wood, 14 Ga. 80 279 
 
 Franklin Company v. Lewiston Institution for Savings, 68 Maine'43 938
 
 xliv TABLE OF REPORTED CASES. 
 
 [References are to Pages.] 
 G 
 
 Garrett v. Belmont Land Co., 94 Tenn. 459 1138 
 
 Garratt Ford Co. v. Vermont Manufacturing Co., 20 R. I. 187 1093 
 
 Gent v. Manufacturers' and M. M. Ins. Co., 107 111. 652 568 
 
 Gibbs' Estate, W. Halstead's Appeal, 157 Pa. St. 59 244 
 
 Gleason v. McKay, 134 Mass. 419 167 
 
 Glenn v. Orr, 96N.C. 413 1589 
 
 Globe Accident Ins. Co. v. Reid, 19 Ind. App. 203 1142 
 
 Goodspeed v. East Haddam Bank, 22 Conn. 530 1256 
 
 Governor v. Allen & McMurdie, 8 Humph. (27 Tenn.) 176 270 
 
 Graham v. Boston, Hartford and Erie*R. Co., 118 U. S. 161 846 
 
 Graham v. Railroad Co., 102 U. S. 148 1809 
 
 Grand Lodge of Alabama v. Waddill, 36 Ala. 313 1212 
 
 Graves v. Brooks, 117 Mich. 424 1950 
 
 Great Western Tel. Co. v. Burnham, 79 Wis. 47 1574 
 
 Great Western Tel. Co. v. Purdy, 162 U. S. 329 1972 
 
 Greenberg v. Whitcornb Lumber Co., 90 Wis. 225 1799 
 
 Greene v. Dennis, 6 Conn. 292 275 
 
 Green v. Graves, 1 Douglass (Mich.) 351 (extracts) 292 
 
 Green v. Knife Falls Boom Corporation, 35 Minn. 155 339 
 
 Greenwood v. Freight Co., 105 U. S. 13 1422 
 
 Griffinglron Co., In re, 63 N. J. Law 168 1744 
 
 Griffith v. Blackwater Boom and Lumber Co., 47 W. Va. 56, 33 S. E. Rep. 
 
 125 897 
 
 Guckert v. Hacke, 159 Pa. St. 303 662 
 
 Guilford v. Western U. Tel. Co., 59 Minn. 332 1521 
 
 H 
 
 Hahns & Bros.' Appeal, 15 Am. & E. C. C. 537, 18 W. L. N. 294 549 
 
 Haley v. Reid, 16 Ga. 437 810 
 
 Hamlin v. Continental Trust Co., 47 U. S. App. 422, 78 Fed. Rep. 664. ... 785 
 
 Handley v. Stutz, 139 U. S. 417 1923 
 
 Hanson v. Donkersley, 37 Mich. 184 1997 
 
 Hardin v. Trustees of Second Baptist Church, 51 Mich. 137 201 
 
 Harger v. McCullough, 2 Denio (N. Y.) 119 1998 
 
 Harris and Stickle v. McGregor, 29 Cal. 124 603 
 
 Harrod v. Hamer, 32 Wis. 162 586 
 
 Harvey v. Linville Improvement Co., 118 N. C. 693 1604 
 
 Hawes v. Anglo-Saxon Petroleum Co., 101 Mass. 385 581 
 
 Hawes v. Oakland, 104 U. S. 450 1716 
 
 Hawthorne v. Calef, 2 Wall. (69 U. S.) 10 752 
 
 Hatch v. Dana, 101 U. S. 205 1965 
 
 Heaston v.'Cincinnati & Ft. Wayne R. Co., 16 Ind. 275 1573 
 
 Hebgen v. Koeffler, 97 Wis. 313 1548 
 
 Helm v. Smith-Fee Co., 79 Minn. 297 2062 
 
 Higgins v. Downward, 8 Houst. (Del.) 227 152
 
 TABLE OF REPORTED CASES. xlv 
 
 [References are to Pages.] 
 
 Holman v. The State, 105 Ind. 569 590 
 
 Hollins v. Brierfield Coal and Iron Co., 150 U. S. 371 1868 
 
 Holloway v. The Memphis, El Paso and Pacific R. Co. 23 Tex. 465 1124 
 
 Hooper v. California, 155 U. S. 648 1507 
 
 Hoppin v. Buffum, 9 R. I. 513 1598 
 
 Hornev. Ivy, 1 Mod. 18 1136 
 
 Hospes v. Northwestern Mfg., etc., Co., 48 Minn. 174 1911 
 
 Howarth v. Angle, 162 N. Y. 179 2028 
 
 Howe, Brown & Co. v. Sandford F. & T. Co., 44 Fed. Rep. 231 (extract). 1835 
 
 Hudson Real Estate Company v. Tower, 161 Mass. 10 478 
 
 Hughes v. Antietam Mfg. Co., 34 Md. 316 1563 
 
 Hunt v. O'Shea, 69 N. H. 600 1628 
 
 Huntington v. Attrill, 146 U. S. 657 1892 
 
 I 
 
 In re, see name of the party. 
 
 Insurance Company v. Morse, 87 U. S. (20 Wall.) 445 (extract) 1097 
 
 Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Co., 167 
 
 U. S. 479 (extract) 1534 
 
 In the matter of (see name of party). 
 
 Irwin v. Granite State Provident Assn., 56 N. J. Eq. 244 1524 
 
 Ireland v. The Palestine, etc., Turnpike Co., 19 Ohio St. 369 757 
 
 J 
 
 Jackson's Administrators v. Newark Plank-Road Co., 31 N. J. Law 277. .1643 
 
 Jackson v. Walsh, 75 Md. 304 (extract). 1447 
 
 Jacksonville, Mayport, Pablo R. & Nav. Co. v. Hooper, 160 TJ. S. 514. . . .1145 
 
 Jermain v. Lake Shore & Mich. Southern R. Co., 91 N. Y. 483 1631 
 
 Jones v. The Aspen Hardware Company, 21 Colo. 263 637 
 
 Jones v. Guaranty and Indemnity Company, 101 U.S. 622 1078 
 
 Johns v. Johns, 1 Ohio St. 350 794 
 
 Johnston Fife Hat Co. v. The National Bank of Guthrie, 4 Okla. 17 1262 
 
 K 
 
 Kaiser v. Lawrence Savings Bank, 56 Iowa 104 607 
 
 Kearns v. Leaf, 1 Hem. & Mill 681 (extract) 1862 
 
 Keller v. Eureka Brick Machine Manufacturing Co., 43 Mo. App. 84 1655 
 
 Kent v. Quicksilver Mining Co., 78 N. Y. 159 790 
 
 Keokuk and Western Railroad Company v. Missouri, 152 U. S. 301 989 
 
 Killingsworth v. The Portland Trust Co., 18 Ore. 351, 17 Am. St. Rep. 737. . 1090 
 
 King v. London, Carth. 217 (extract) 705 
 
 King v. Mayor of London, Show. 280 (extract) 152 
 
 King v. Passmore, 3 T. R. 246 (extract) 150
 
 xlvi TABLE OF REPORTED CASES. 
 
 [References are to Pages.] 
 
 L 
 
 Lake Shore and Michigan Southern R. Co. v. Chicago and Western In- 
 diana R. Co., 97 111. 506 (extract) 1342 
 
 Larrabee v. Baldwin, 35 Cal. 155 (extract) 2009 
 
 Lawrence v. Greenup, 97 Fed. Rep. 906 (extract) 1985 
 
 Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313 1008 
 
 Le Roy v. Globe Insurance Co., 2 Edw. Ch. (N. Y. ) *657 1629 
 
 Lewis v. Tilton, 64 Iowa 220 176 
 
 Licensed Victuallers' Mutual Trading Assn., Ex parte Audain, L. R. 42 
 
 Ch. Div. 1, 26 A. & E. C. C. 217 502 
 
 Little Saw Mill Valley Turnpike Co. v. Federal Street and P. V. P. R. 
 
 Co. , 194 Pa. St. 144 11 47 
 
 Long v. Georgia Pacific Railway Co., 91 Ala. 519 1203 
 
 Loring v. Salisbury Mills, 125 Mass. 138 1685 
 
 Lothrop v. Stedraan, 42 Conn. 563 (extract) 1865 
 
 Louisville Banking Company v. Eisenrnan, 94 Ky. 83 887 
 
 Louisville, New Albany & C. R. Co. v. Boney, 117 Ind. 501 '. . . 1842 
 
 Lucus v. White Line Transfer Co., 70 Iowa 541 1207 
 
 Luxton v. North River Bridge Co., 153 U. S. 525 320 
 
 M 
 
 Maine v. Grand Trunk R. Co., 142 U. S. 217 (extract) 1390 
 
 Maisenbacker v. Society Concordia, 71 Conn. 369 1279 
 
 Mallory v. Hanaur Oil Works, 86 Tenn. 598 957 
 
 Manchester Fire Ins. Co. v. Herriott, 91 Fed. Rep. 711 1498 
 
 Manchester and Lawrence Railroad v. Concord Railroad, 66 N. H. 100. . . 963 
 
 Man wood v. Lovelace, 6 Vin. Abr. 282 688 
 
 Marchand v. Loan and Pledge Assn., 26 La. Ann. 389 383 
 
 Marshall v. F. & M. Savings Bank, 85 Va. 676 1879 
 
 Marshall v. Sherman, 148 N. Y. 9 2021 
 
 Martin v. Fewell, 79 Mo. 401 673 
 
 Martin v. South Salem Land Co., 94 Va. 28 539 
 
 Matter of Rappleye, 43 App. Div. (N. Y.) 84 1651 
 
 Maund v. The Monmouthshire Canal Co., 4 Mann. & Gr. (43 Engl. C. L.) 
 
 *452 1243 
 
 Mayor, etc., of Norwich v. Norfolk R. Co., 82 Eng'. C. L. (4 El. & Bl.) *367 
 
 (extract) 1148 
 
 McArthur v. Times Printing Co., 48 Minn. 319 1551 
 
 McCarthy v. Lavasche, 89 111. 270 253 
 
 McCartee v. Orphan Asylum Society of New York, 9 Cowen (N. Y.) 437. .1021 
 
 McClure v. Law, 161 N. Y. 78 1735 
 
 McDonald v. AVilliams, 174 U. S. 397 198] 
 
 McGinty v. Athol Reservoir Co., 155 Mass. 183 873 
 
 McGraw's Estate, In re, 111 N. Y. 66 1034 
 
 McLouth v. Hunt, 154 N. Y. 179 1638 
 
 McKim v. Odom, 3 Bland Ch. (Md.) 407 222 
 
 McNeil v. Tenth Nat'l Bank, 46 N. Y. 325" . . 1674
 
 TABLE OF REPORTED CASES. xlvii 
 
 [References are to Pages.] 
 Medical Institution of Geneva College v. Patterson, 1 Denio (N. Y.) 61. . 263 
 
 Medway Cotton Manufactory v. Adams, 10 Mass. 360 825 
 
 Memphis, etc., R. Co. v. Railroad Commissioners, 112 U. S. 609 143 
 
 Mechanics' Bank v. Heard, 37 Ga. 401 87" 
 
 Merchants' Bank of Canada v. Livingston, 74 N. Y. 223 16' 
 
 Merchants' Nat'l Bank of Kansas City'v. Lovitt, 114 Mo. 519 17<>.> 
 
 Merchants' & Planters' Line v. Waganer, 71 Ala. 581 880 
 
 Metcalf v. Arnold, 110 Ala. 180 97 
 
 Methodist Episcopal Church v. Sherman, 36 Wis. 404 691 
 
 Metropolitan Elevated R. Co. v. Manhattan Elevated R. Co., 11 Daly 
 
 373, 14 Abb. New Cas. 103 694 
 
 Miller v. Ewer, 27 Maine 509 841 
 
 Miller v. Insurance Co., 92 Tenn. 167 1214 
 
 Mills v. Northern R. Co., L. R. 5 Ch. App. Cas. 621 1813 
 
 Miner v. The Belle Isle Ice Co., 93 Mich. 97 1323 
 
 Miners' Ditch Co. v. Zellerbach, 37 Gal. 543 (extract) 1200 
 
 Minneapolis Threshing Machine Co. v. Davis, 40 Minn. 110 492 
 
 Missouri Lead M. & S. Co. v. Reinhard, 114 Mo. 218 844 
 
 Mobile and Girard R. Co. v. Alabama Midland R. Co., 87 Ala. 501 (ex- 
 tract) 1340 
 
 Mobile and Ohio R. Co. v. Tennessee, 1*3 U. S. 486 1614 
 
 Mokelumne Hill Canal and Mining Co. v. Woodbury, 14 Cal. 424 296 
 
 Montgomery v. Forbes, 148 Mass. 249 594 
 
 Monument National Bank v. Globe Works, 101 Mass. 57 949 
 
 Mormon Church, etc., v. United States, 136 U. S. 1 906 
 
 Morrill v. Little Falls Manufacturing Co., 53 Minn. 371 839 
 
 Morrill v. Smith County, 89 Tex. 529 (extract) 987 
 
 Morton Gravel Road Co. v. Wysong, 51 Ind. 4 1156 
 
 Moses v. Tompkins, 84 Ala. 613 1576 
 
 Moxham v. Grant, 69 L. J. (Q. B.) 97 1794 
 
 Mumma v. The Potomac Company, 8 Peters (33 U. S.) 281 896 
 
 Munson v. Syracuse, Geneva and Corning R. Co., 103 N. Y. 58 1753 
 
 Murphy v. Arkansas & L. Land Improvement Co., 97 Fed. Rep. 723 950 
 
 Muscatine Water Co. v. Muscatine Lumber Co., 85 Iowa 112 1137 
 
 Nassau Bank v. Jones, 95 N. Y. 115 1205 
 
 National Bank v. Case, 99 U. S. 628 1661 
 
 National Commercial Bank v. McDonnell, 92 Ala. 387 549 
 
 National State Bank v. Vigo County National Bank, 141 Ind. 352 703 
 
 National Loan and Investment Co. v. Rockland Co., 94 Fed. Rep. 335 1755 
 
 National Telephone Manufacturing Co. v. DuBois, 165 Mass. 117 1490 
 
 Neil v. The Board of Trustees of The O. A. & M. College, 31 Ohio St. 15.. 191 
 Newby v. The Oregon Central Railway Co., Deady 609, Fed. Cas. 10144. . 819 
 
 Newcomb v. Reed, 12 Allen (Mass.) 362 588 
 
 Nickuni v. Bnrckhardt. 30 Ore. 464 391 
 
 Nims v. Mt. Hermon Bovs' School, 1GO Mass. 177 1268
 
 xlviii TABLE OF REPORTED CASES 
 
 [References are to Pages.] 
 
 Nix v. Miller, Colo. , 57 Pac. Rep. 1084 1874 
 
 Norfolk and Western R. Co. v. Pennsylvania, 136 U. S. 114 1393 
 
 Norris v. Staps, Hobart 211a (extract) 1156 
 
 North Hudson B. & L. Assn. v. Childs, 82 Wis. 460 1737 
 
 North State Copper and Gold Mining Co. v. Field, 64 Md. 151 1519 
 
 Northwestern Union Packet Company v. Shaw, 37 Wis. 655 1040 
 
 Nulton v. Clayton, 54 Iowa 425 456 
 
 o 
 
 O'Bear Jewelry Co. v. Volfer, 106 Ala. 205 1852 
 
 Olney v. Conanicut Land Co., 16 R. I. 597 1832 
 
 Oregon R. Co. v. Oregonian R. Co., 130 U.S.I 429 
 
 Overseers of Poor v. Sears, 22 Pick. (Mass.) 122 193 
 
 P 
 
 Pacific National Bank v. Eaton, 141 U. S. 227.. .., 1581 
 
 Packard v. Old Colony Railroad Co., 168 Mass". 92 563 
 
 Parsons v. Joseph, 92 Ala. 403 1724 
 
 Payne v. Elliot, 54 Cal. 339 804 
 
 Pearsall v. Great Northern R. Co., 161 U. S. 646 1413 
 
 Pearson v. Concord Railroad Corporation, 62 N. H. 537 1060 
 
 Peninsular Railway Co. v. Duncan, 28 Mich. 130 482 
 
 Pennington v. Gitting's Executor, 2 Gill & J. 208 1690 
 
 Pennsylvania Co. v. Bauerle, 143 111. 459 (extract) 1516 
 
 Penobscot Boom Corporation v. Lamson, 16 Me. (4 Shepley) 224 283 
 
 Pensacola Telegraph Company v. Western Union Telegraph Co., 96 U. S.I 326 
 
 People v. Ballard, 134 N. Y. 269 1066 
 
 People v. Chicago Gas Trust Co., 130 111. 268 1054 
 
 People v. Chicago Live Stock Exchange, 170 111. 556 1171 
 
 People v. Coleman, 126 N. Y. 433 778 
 
 People v. Coleman, 133 N. Y. 279 15 
 
 People v. The Dashaway Association, 84 Cal. 114 1298 
 
 People v. Fire Ins. Assn. of Philadelphia, 92 N. Y. 1311 1494 
 
 People v. Granite State, etc., Assn., 161 N. Y. 492 2050 
 
 People v. Montecito Water Co., 97 Cal. 276 609 
 
 People v. Morris, 13 Wendell (N. Y.) 325 229 
 
 People v. N. Y. Central & Hudson River R. Co., 28 Hun (N. Y.) 543 1308 
 
 People v. North River Sugar Refining Co., 121 N. Y. 582 100 
 
 People v. O'Brien, 111 N. Y. 1 1426 
 
 People v. Phrenix Bank, 24 Wend. (N. Y.) 431 1306 
 
 People v. Pullman's Palace Car Company, 175 111. 125 926 
 
 People, ex rel., v. Roberts, 159 N. Y. 70 1385 
 
 People v. Utica Ins. Co., 15 Johnson (N. Y.) 358 113 
 
 Perkins v. Sanders, 56 Miss. 733 409 
 
 Philadelphia Savings Institution, In re, 1 Wharton (Pa.) 461 464
 
 TABLE OF REPORTED CASES. xlix 
 
 [References are to Pages.] 
 
 Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 TJ. S. 326 
 
 (extract) 1389 
 
 Philips v. Wickham, 1 Paige Ch. (N. Y.) 590 875 
 
 Pierce v. Commonwealth, 104 Pa. St. 150 1603 
 
 Pittsburg, C. & St. L. R. Co. v. Keokuk Bridge Co., 131 IT. S. 371 (extract). 11 82 
 
 Plimpton v. Bigelow, 93 N. Y. 592 811 
 
 Pond v. Framingham & Lowell R. Co., 130 Mass. 194 1808 
 
 Pratt v. Boston & Albany R. Co., 126 Mass. 443 1702 
 
 President, Directors, etc., of Bank of the United States v. Dandridge, 12 
 
 Wheat. (25 U. S.) 64 854 
 
 Price v. Pine Mountain Iron and Coal Co. (Ky.), 32 S. W. Rep. 267 1047 
 
 Proprietors of The Piscataqua Bridge v. The New Hampshire Bridge, 7 
 
 N. H. 35 309 
 
 Prospect Park & C. I. R. Co., In re, 67 N. Y. 371 (extract) 987 
 
 Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18 1374 
 
 Q 
 
 Queen v. Arnaud, 25 L. J. Rep. (16 N. S.) 50 58 
 
 Queen v. The Birmingham & Gloucester R. Co., 3 Adol. & El. N. S. 223, 
 
 43 Eng. C. L. 708 1283 
 
 Queen v. The Great North of England R. Co., 9 Adol. & El. (N. S.) *315, 
 
 58 Eng. C. L. 314 1284 
 
 Quincy Railroad Bridge Company v. Adams County, 88 111. 615 988 
 
 R 
 
 Rahrer, In re, 140 U. S. 545 1530 
 
 Rapier, In re, 143 U. S. 110 1541 
 
 Railroad (Paducah and Memphis) v. Parks, 86 Tenn. 554 532 
 
 Railroad Tax Cases, 13 Fed. Rep. 722 36 
 
 Railway Co. v. Allerton, 85 U. S. (18 Wall.) 233 442 
 
 Read v. Frankfort Bank, 23 Maine (10 Shep.) 318 1805 
 
 Reeve v. Harris (Tenn. Ch. App.), 50S. W. Rep. 658 1758 
 
 Regina, see Queen. 
 Rex, see King. 
 
 Richardson v. Graham, 45 W. Va. 134 (extract) 1550 
 
 Richardson v. Swift, 7 Houst. (Del.) 137 (extract) 1653 
 
 Riche v. The Ashbury Railway Carriage and Iron Co., Ltd., L. R. 9 
 
 Ex. 224 * 919 
 
 Richmond Railway and Electric Co. v. Brown, 97 Va. 25 1317 
 
 Riddick v. Amelin, 1 Mo. 5 302 
 
 Riddle v. Proprietors, etc., 7 Mass. 169 f . 47 
 
 Rider v. Fritchey, 49 Ohio St. 285 1994 
 
 Roberts Mfg. Co. v. Schlick, 62 Minn. 332 1767 
 
 Robertson v. Bullions, 9 Barbour (N. Y.) 64 203 
 
 Rockford, Rock Island and St. Louis R. Co. v. Shunick, 65 111. 223 545 
 
 Romney v. United States, 136 U. S. 1 906
 
 1 TABLE OF REPORTED CASES. 
 
 [References are to Pogres.] 
 
 Root v. Sinnock, 120 111. 350 2003 
 
 Rose v. Turnpike Co., 3 Watts (Pa.) 46 688 
 
 Rouse v. Merchants' Bank, 46 Ohio St. 493 1819 
 
 Ruse v. Bromberg, 88 Ala. 619 1575 
 
 Russell v. Wakefield Water- Works Co., L. R. 20 Eq. Gas. 474 1709 
 
 Rutter v. Chapman, 8 Mees. & W. 1 266 
 
 Ryerson v. Wayne Circuit Judge, 114 Mich. 352 1121 
 
 s 
 
 San Antonio Street R. Co. v. State of Texas, 90 Tex. 520 1313 
 
 San Joaquin Land and Water Co. v. West, 94 Cal. 399 497 
 
 Sasser v. The State of Ohio, 13 Ohio 453 668 
 
 Scovill v. Thayer, 105 U. S. 143 1907 
 
 Sedalia, Warsaw and Southern R. v. Wilkerson, 83 Mo. 235 459 
 
 Sellers v. Greer, 172 111. 549 65 
 
 Sharon R. Co.'s Appeal, 122 Pa. St. 533 (extract) 1342 
 
 Shaw v. Quincy Mining Co., 145 U. S. 444 1106 
 
 Shinney v. North American Sav., Loan and Building Co., 97 Fed. Rep. 9.1542 
 
 Shipley v. The Mechanic's Bank, 10 Johns. (N. Y.) 484 1701 
 
 Shute v. Keyser, 37 Am. & Eng. Corp. Cas. 61 (Ariz.) 1134 
 
 Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370 1092 
 
 Singer Manufacturing Co. v. Peck, 9 S. D. 29 571 
 
 Sinking Fund Cases, 99 U. S. 700 1405 
 
 Skillman v. Lachman, 23 Cal. 198 182 
 
 Slee v. Bloom, 19 Johns. Ch. (N. Y.) 456 881 
 
 Small v. Herkimer Mfg. and Hydraulic Co., 2 N. Y. 330 1567 
 
 Smith v. Hurd, 12 Mete. (Mass.) 371 1706 
 
 Smith v. San Francisco and North Pacific R. Co., 115 Cal. 584 1606 
 
 Smith v. Tallassee Branch of Central Plank-Road Co., 30 Ala. 650 817 
 
 Smyth v. Ames, 169 U. S. 466 1352 
 
 Smyth v. Visitors of the Theological Institution in Phillips Academy in 
 
 Andover, 154 Mass. 551 1332 
 
 Sniders Sons' Co. v. Troy, 91 Ala. 224 656 
 
 Snyder v. Studebaker, 19 Ind. 462 634 
 
 Society Perun v. Cleveland, 43 Ohio St. 481 '. 617 
 
 Southern Pacific R. Co. v. Orton, 32 Fed. Rep. 457 354 
 
 Southern Railway Co. v. Carnegie Steel Co., 176 U. S. 257 (extracts). . . .2053 
 
 Sprague v. Illinois River R. Co., 19 111. *174 1454 
 
 Sprague v. National Bank, 172 111. 149 (extract) 1949 
 
 Spring Valley Water- Works v. Schottler, 62 Cal. 69 120 
 
 Standard Underground Cable Co. v. Attorney-General, 46 N. J. Eq. 270. .1392 
 
 State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663 1286 
 
 State v. Bank of New England, 70 Minn. 398 1585 
 
 State v. Chicago, Milwaukee and St. Paul Railway Co., 4 S. D. 261 1126 
 
 State v. City of Cincinnati, 20 Ohio St. 18 360 
 
 State v. Cunningham, 83 Wis. 90 1295 
 
 State v. Curtis, 35 Conn. 374 258 
 
 State v. Dawson, 16 Ind. 40 412
 
 TABLE OF REPORTED CASES. H 
 
 [References are to Pages.] 
 
 State v. Debenture Guarantee & Loan Co., 51 La. Ann. 1874 1302 
 
 State v. The Dodge City, Montezuma and Trinidad R. Co., 53 Kan. 377. .1330 
 
 State v. The Georgia Medical Society, 38 Ga. 608 136 
 
 State v. Insurance Co., 49 Ohio St. 440 406 
 
 State v. Milwaukee Chamber of Commerce, 47 Wis. 670 (extracts) 1294 
 
 State v. Northeastern R. Co., 9 Rich (S. C. Law) 247 44 
 
 State v. Overton, 24 N. J. Law (4 Zabr.), 435 1153 
 
 State v. Pacific Brewing and Malting Co., 21 Wash. 451 1645 
 
 State v. Parsons, 40 N. J. L. 1 333 
 
 State v. Pawtuxet Turnpike Co., 8 R. I. 521 1305 
 
 State v. Payne, 129 Mo. 468 830 
 
 State v. Standard Life Association, 38 Ohio St. 281 234 
 
 State v. Sherman, 22 Ohio St. 411 1082 
 
 State v. Travelers' Insurance Co., 70 Conn. 590 1402 
 
 State Bank v. The State, 1 Blackf. (Ind.) 267 891 
 
 State Trust Co. v. Turner, 111 Iowa 664 1943 
 
 St. Clair v. Cox, 106 TJ. S. 350 1115 
 
 St. Louis F. S. & W. R. Co. v. Tiernan, 37 Kan. 606 375 
 
 St. Louis and San Francisco Railway Co. v. James, 161 IT. S. 545 1099 
 
 St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393 .... 1228 
 
 Steam Stone-Cutter Co. v. Scott, 157 Mo. 520 1917 
 
 Stein v. Howard, 65 Cal. 616 (extract) 1951 
 
 Stevens v. Eden Meeting-House Society, 12 Vt. 688 < 836 
 
 Stevens v. Rutland and Burlington R. Co., 29 Vt. 545 1448 
 
 Stewart v. Trustees of Hamilton College, 2 Denio (N. Y.) 403 448 
 
 Stockport District Water- Works Co. v. The Mayor, etc., of Manchester, 9 
 
 Jurist. (N. S.) 266 1233 
 
 Stockton Savings Bank v. Staples, 98 Cal. 189 1007 
 
 Stoddardv. Lum, 159 N. Y. 265 1968 
 
 Stone v. Mississippi, 101 U. S. 814 1348 
 
 Stout and McHenry v. Hubbell, 104 Iowa 499 1947 
 
 Stowe v. Wyse, 7 Conn. 214 835 
 
 Strasburg Railroad Company v. Echternacht, 21 Pa. St. 220 473 
 
 Stryker, In the matter of, 158 N. Y. 526 2010 
 
 Sully v. American National Bank, 178 U. S. 289 2046 
 
 Supreme Lodge of Knights of Pythias v. Hill, 76 Fed. Rep. 468 1098 
 
 Swentzell v. Penn Bank, 147 Pa. St. 140 1884 
 
 T 
 
 Taber v. Interstate Building and Loan Assn., 91 Tex. 92 1095 
 
 Taggart v. The Western Maryland R. Co., 24 Md. 563 514 
 
 Tappan v. Merchants' National Bank, 86 U. S. (19 Wall.) 490 1399 
 
 Telegraph Co. v. Texas, 105 U. S. 460 1397 
 
 Telegraph Newspaper Co. v. Commonwealth, 172 Mass. 294 1287 
 
 Thomas v. Dakin, 22 Wend. (N. Y.) 9 19
 
 Hi TABLE OF REPORTED CASES. 
 
 [References are to Pages.] 
 
 Thomas v. Railroad Company, 101 U. S. 71 915 
 
 Thorpe v. The Rutland and Burlington R. Co., 27 Vt. 140 1344 
 
 Thrasher v. Pike County Railroad Co., 25 111. 393 (Orig. ed.), 340 Gross's 
 
 ed., 1876 471 
 
 Titcomb v. Kennebunk Mut. F. Insurance Co., 79 Maine 315 904 
 
 Tisdale v. Harris, 20 Pick. (Mass.) 9 799 
 
 Tod v. Kentucky Union Land Co., 57 Fed. Rep. 47 952 
 
 Toledo Tie & L. Co. v. Thomas, 33 W. Va. 566 1510 
 
 Tomkinson v. Southeastern R. Co., L. R. 35 Ch. Div. 675 1715 
 
 Tomlinson v. Jessup, 15 Wallace (82 U. S.) 454 754 
 
 Tonica and Petersburg Railroad Co. v. McNeely, 21 111. 71 491 
 
 Treadwell v. Salisbury Mfg. Co., 7 Gray (Mass.) 393 1787 
 
 Trenton Potteries Company v. Oliphant, 58 N. J. Eq. 507, 46 L. R. A. 255. . 981 
 Trustees of Dartmouth College v. Woodward, 4 Wheaton (17 U. S.) 518. . 708 
 
 Trustees of Free Schools in Andover v. Flint, 13 Mete. 539 1900 
 
 Trustees Mut. B. F., etc., Bank v. Bossieux, 4 Hughes 387 (extract) 1735 
 
 Trustees of Phillips Academy v. Attorney-General, 154 Mass. 551 2133 
 
 Trustees of Univ. of N. C. v. Foy, 1 Mur. (N. C.) 58 33 
 
 Tunis v. Hestonville M. & F. Pass. R., 149 Pa. St. 70 1600 
 
 Twin-Lick Oil Co. v. Marbury, 91 U. S. 587 1750 
 
 U 
 
 Umsted v. Buskirk, 17 Ohio St. 113 1990 
 
 Union Bank v. Jacobs, 25 Tenn. (6 Humph.) 515 941 
 
 Union Pacific R. Co. v. United States, 99 U. S. 700 1405 
 
 United States v. Addyston Pipe and Steel Co. 85 Fed. Rep. 271 967 
 
 U. S. Bank v. Dandridge, 12 Wheat 64 854 
 
 United States Bank v. Stearns, 15 Wend. (N. Y.) 314 1131 
 
 Upton v. Englehart, 3 Dillon 496 1559 
 
 Utley v Union Tool Co., 11 Gray (Mass.) 139 597 
 
 V 
 
 Van Cleve v. Berkey, 143 Mo. 109 1953 
 
 Van Cott v. Van Brunt, 82 N. Y. 535 1919 
 
 Veazie Bank v. Fenno, 8 Wall. (75 U. S.) 533 1527 
 
 Vidal v. Girard's Executors, 2 How. (43 U. S.) 126 (extract) 1087 
 
 Visalia & Tulare R. Co. v. Hyde, 110 Cal. 632 1692 
 
 W 
 
 Wales v. Stetson, 2 Mass. 143, 3 Am. Dec. 39 150 
 
 Walker v. Devereaux, 4 Paige Ch. (N. Y.) 229 385 
 
 Wallace v. Lincoln Savings Bank, 89 Tenn. 630 1731 
 
 Wallace v. Loomis, 97 U. S. 146 338 
 
 Wallace v. Pierce- Wallace Pub. Co., 101 Iowa 313 1747 
 
 Walton v. Oliver, 49 Kan. 107. . . 565
 
 TABLE OF REPORTED CASES. liii 
 
 [References are to Pages.'] 
 
 Waring v. Catawba Co., 2 Bay (S. Car.) 109 71 
 
 Warner v. Beers, 23 Wend. (N. Y.) 103 2 
 
 Washburn v. National Wall-Paper Co., 81 Fed. Rep. 17 1936 
 
 Weatherford M. W. & N. W. R. Co. v. Granger, 86 Tex. 350 1553 
 
 Webb v. The Baltimore & Eastern Shore R. Co., 77 Md. 92 528 
 
 Wechselberg v. Flour City National Bank, 24 U. S. App. 308 574 
 
 Wells, Fargo & Co. v. Northern Pacific R. Co., 23 Fed. Rep. 469 (extracts). 295 
 
 West v. Crawford, 80 Cal. 19 (extracts) 500 
 
 West Nashville Planing Mill Co. v. Nashville Savings Bank, 86 Tenn. 252. 1695 
 
 West River Bridge Co. v. Dix, 47 U. S. (6 How.) 507 1337 
 
 West Winsted Sav. Bank and Building Assn. v. Ford, 27 Conn. 282 652 
 
 Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350 1250 
 
 White v. Brownell, etc., 2 Daly 329 187 
 
 White v. Howard, 38 Conn. 342 1026 
 
 White Mountains Railroad Co. v. Eastman, 34 N. H. 124 758 
 
 Whitman v. Oxford National Bank, 176 U. S. 559 2018 
 
 Wight v. Shelby Railroad Company, 16 B. Mon. (Ky.) 4 536 
 
 Wight v. Springfield & New London R. Co., 117 Mass. 226 692 
 
 Wiles v. Suydam, 64 N. Y. 173 1987 
 
 Williamson v. Smoot, 7 Martin (La.) 31 70 
 
 Williams v. Western Union Telegraph Co., 93 N. Y. 162 1622 
 
 Willis v. Mabon, 48 Minn. 140 (extract) 2013 
 
 Wilson v. Leary, 120 N. C. 90 903 
 
 Wilson v. Tesson, 12 Ind. 285 1446 
 
 Winchester v. Mabury, 122 Cal. 522 1888 
 
 Winter v. Montgomery Gas Light Co., 89 Ala. 544 1682 
 
 Wood v. Dummer, 3 Mason 308 1847 
 
 Woodworth v. Bowles, 61 Kan. 569 2014 
 
 Woolf v. The City Steamboat Company, 7 Man., Gr. & S. (62 Eng. C. L.) 
 * 103 1 125 
 
 Y 
 
 Yarborough v. The Governor & Co. of the Bank of England, 16 East 6. ..1236 
 Yeaton v. Bank of the Old Dominion, 21 Grattan (Va.) 593 750 
 
 z 
 
 Zabriskie v. Hackensack & N. Y. R. Co., 18 N. J. Eq. (3 C. E. Green) 
 
 178 1466 
 
 Zang v. Wyant, 25 Colo. 551 2005 
 
 Zoller v. Ide, 1 Neb. 439 862
 
 CASKS 
 
 ILLUSTRATING 
 
 THE GENERAL PRINCIPLES 
 
 OF THE 
 
 LAW OF PRIVATE CORPORATIONS 
 
 PART I. 
 THE IDEA OF A CORPORATION. 
 
 CHAPTER 1. 
 
 DESCRIPTION AND CLASSES. 
 ARTICLE I. DEFINITIONS AND TESTS. 
 
 Sec. 1. Definitions. 1 A PERSON": "A corporation is an artifi- 
 cial being, invisible, intangible, and existing only in contem- 
 plation of law." 
 
 1819. Chief Justice Marshall, in Trustees of Dartmouth College 
 v. Woodward, 4 Wheat. (U. 8.) 518, on 636. 
 
 A COLLECTION OF INDIVIDUALS': "The word 'corporation' 
 is but a collective name for the corporators or members who 
 compose an incorporated association; and where it is said 
 that a corporation is itself a person, or being, or creature, 
 this must be understood in a figurative sense only." 
 
 1886. Victor Morawetz, Law of Private Corporations, 2d ed., 1, 
 et seq. 
 
 A FRANCHISE 4 : "A corporation is a franchise created by the 
 king." 
 
 c. 1745. Comyn's Digest, Franchise (F) F. 1. 
 
 & A. Corp., 1-65; Beach, 1; 1 Bl. Com., *467; Boone, ch. 1; 
 Clark, ch. 1; Cook, ch. 1; Elliott, 1-20; Field, ch. 1; Grant, p. *l-*9; 2 
 Kent Com., p. *267 ; 1 Kyd Corp., Int. ; Taylor, ch. 1-5; 1 Thomp., ch. 1. 
 
 * See 6-15 infra, and note, p. 72. 
 
 8 See 16-21 infra, and note, p. 109. 
 
 * See 22-29 infra, and note, p. 157. 
 
 (1)
 
 2 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 Sec. 2. Tests. As to whether a particular institution is a corpora- 
 tion or not the tests are : 
 
 ( i ) " The merging of the individuals composing the aggre- 
 gate body into one distinct, artificial existence." 
 
 WARNER AND RAY v. BEERS. 1 
 BOLANDER v. STEVENS. 
 
 1840. IN THE COURT FOR THE CORRECTION OF ERRORS. 23 
 Wendell (N. Y.) Reports, pp. 103-190. 
 
 [In the first above entitled cause, the declaration commenced in the 
 name of "Joseph D. Beers," described as "President of the North 
 American Trust and Banking Company, an association doing busi- 
 ness in the city of New York, under and by virtue of an act of the 
 legislature of the state of New York, entitled 'an act to authorize 
 the business of banking,' passed April i8th, 1838, who prosecutes 
 for and on behalf of the said association;" and then was set forth in the 
 usual form a count on a promissory note by the third endorsee against 
 Warner and Ray, as endorsers. The declaration also contained the 
 common money counts, and the insimul computassent : , alleging the 
 debts to have arisen, and the promises to have been made to "the 
 said association," and concluded with the words "to the damage of 
 the said association of five hundred dollars ; and therefore the said 
 plaintiff, as president as aforesaid, brings suit," etc. 
 
 The declaration in the second suit was like the preceding, except 
 that it contained only the common money counts, and the count on 
 the insimul computassent. To these declarations, demurrers were 
 put in by the defendants respectively. In the first suit, the following 
 cause, among others, of demurrer was assigned, viz. : 
 
 V. The institutions or associations authorized and intended to be 
 created by the act entitled "An act to authorize the business of bank- 
 ing" are corporations or bodies politic, and the act expressly allows 
 the creation of an indefinite and unlimited number of such corpora- 
 tions, at the pleasure of any persons who may associate for that pur- 
 pose. The act is, therefore, a violation of the ninth section of the 
 seventh article of the constitution of this state, and is absolutely void. 
 
 The defendant in the second cause also interposed a demurrer assign- 
 ing special causes similar to the special causes in the first count ; the 
 fourth special cause being in these words: "For that the act in 
 the declaration mentioned, entitled 'An act to authorize the busi- 
 
 1 Statement of facts partly omitted. Arguments omitted. Opinions by 
 Bradish, president of the senate, Walworth, chancellor, and Root, senator, 
 omitted ; also, part of the opinion of Senator Verplanck. A brief analysis of 
 each of the opinions given in this case is given in a note by the reporter on 
 pp. 103-105.
 
 2 TESTS: MERGER INTO ARTIFICIAL BODY. 3 
 
 ness of banking,' so far as the same proposes to authorize this suit, 
 is a violation of the provisions of the constitution of this state re- 
 specting the creations of incorporations, and is void; and also that 
 the said act is void, because the same did not receive the assent of 
 two-thirds of all the members elected to the legislature of this state, 
 by which legislature the said act purports to have been passed." 1 
 
 The two demurrers were brought to argument before the supreme 
 court, at the January term, 1840, and judgment given in both cases 
 for the plaintiffs. The court referred, for the reasons of the judg- 
 ment, to the opinions delivered by Chief Justice Nelson, Mr. Justice 
 Bronson and Mr. Justice Cowen, in the case of Thomas v. Dakin, 22 
 Wendell 9 et seq. * Both causes were removed by writs of error to the 
 court for the correction of errors, and were brought on to argument on 
 the 1 8th February, 1840.] 
 
 By SENATOR VERPLANCK. The decision of these causes seems to 
 me to depend wholly upon that of the question, whether or no asso- 
 ciations with constitutions, powers and incidents, similar to those 
 authorized under the general banking law, are bodies corporate and 
 politic; or, in other words, whether the general banking law of 1838 
 is void, because it was not passed with the express assent of two-thirds 
 of all the members of the legislature. 
 
 The supreme court think that they "must, on these records, presume 
 the general banking law to have been passed by two-thirds of all the 
 members of the legislature." Judge Cowen adds : "We must clearly 
 do so until the fact is denied by plea. The requisite constitutional 
 solemnities must always be presumed to have taken place until the 
 contrary shall be clearly shown. Should the defendant withdraw his 
 demurrer, and plead specially that the law in question did not receive 
 the assent of two-thirds as required by the constitution, it will then be 
 in order to pass upon the validity of such an objection." Judge 
 Bronson concurs more briefly to the same effect. 
 
 Now, it appears to me that this point was rightly presented on the 
 demurrers in these cases, so as to authorize and demand the decision 
 of the court. * * * 
 
 From our official knowledge of the facts of the law from those facts 
 being spread out on our journals from the actual inspection of the 
 record by some of us, we all well know that the act was not passed 
 by the vote of two-thirds of each house of the legislature. We must 
 then meet directly, and settle the question whether the associations 
 formed under the general banking laws are, or are not, "bodies politic 
 and corporate."* 
 
 [Definition Artificial personality.] What, then, is the strict defini- 
 tion of the phrase bodies politic and corporate? 
 
 Definitions differ in their character according to the nature of the 
 thing to be defined. * * * 
 
 1 See infra, p. 373. 
 '* Infra, p. 19. 
 
 s For statement of provisions of the general banking law of 1888, see 
 Thomas v. Dakin, infra, p. 21.
 
 4 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 Strict and essential definitions can generally be given of the terms 
 of positive jurisprudence, and particularly so in the extremely techni- 
 cal and artificial system of the ancient English law. This is remark- 
 ably the case, for instance, in regard to our common law terms of real 
 estate, as fee, lease, warranty, grant, covenant, reversion, remainder, 
 etc. ; all of which are defined precisely and essentially, not explained 
 by mere attributes. Bodies corporate belong to that system, and 
 thence do we immediately derive them. What, then, is a body cor- 
 porate? What is its necessary and essential meaning? "It is called 
 a body corporate," says Lord Coke, "because the persons composing 
 it are made into one body." "It is only in abstracto, and rests only 
 in contemplation of law." 10 R. 50. So again, he says, I Inst. 202, 
 250, "Persons capable of purchasing are of two sorts persons natural 
 created of God, and persons created by the policy of man, as persons 
 incorporated into a body politic." If, leaving the quaint scholastic 
 teaching of the father of English law, we come to the clearer and di- 
 recter sense of our own Marshall, we find the same prevailing idea. 
 "A body corporate is an artificial being, invisible, intangible, exist- 
 ing only in contemplation of law. Being the creature of law, it pos- 
 sesses only the properties conferred upon it by its charter. Among 
 the most important of these are immortality, and, if the expression 
 may be allowed, individuality" 4 Wh. R. 636; i Peters' R. 46. 
 Again; "It is precisely what the act of incorporation makes it; de- 
 rives all its powers from that act, and is capable of exerting its facul- 
 ties only in the manner which that act authorizes." "Within the 
 limits of the properties conferred by its charter, it can," says Black- 
 stone, "do all acts as natural persons may." "In corporations," 
 says Prof. Woodeson, "individuals are invested by the law with a 
 political character and personality, wholly distinct from their natural 
 capacity." "A corporation," says Kyd on Corporations, 13, "is not 
 a mere capacity, but a political person in which many capacities re- 
 side." Thus, then, the essential legal definition that covers the whole 
 ground, and expresses the very essence of the being of a body corpo- 
 rate, is this: "// is an artificial legal person, a succession of indi- 
 viduals, or an aggregate body considered by the law as a single 
 continuous person, limited to one peculiar mode of action, and having 
 the power only of the kind and degree prescribed by the law which 
 confers them." Such is the established notion of our common law. 
 vSuch, too, as far as I can trace it, is the doctrine of the modern civil 
 law, as modified by the jurisprudence of the European continent. 
 "Communities that are lawfully established (z. e. , corporations)," says 
 Domat, one of the great teachers of the ante-revolutionary French 
 civil law, "are in the place of persons, and their union, which renders 
 common all their interest, makes them to be considered as one single 
 person." Domat, Civil Law, Lib. i, tit. 15. To the same effect a 
 somewhat older Italian civilian speaks, Oldradus De Ponte, as quoted 
 by Sir Robert Sawyer, in his very able and learned argument in the 
 case of the city of London, 8 St. Tr. 1175. ''Licet non habent 
 veram personam, habent personam jictione juris." So the older
 
 2 TESTS : MERGER INTO ARTIFICIAL BODY. 5 
 
 German jurisprudence, as founded on the Roman law, also held the 
 idea of personality as essential to corporations. Heineccius, one of the 
 most distinguished civilians of that school in the last century, in his 
 instructive 'essay on the legal history of the corporate guilds or socie- 
 ties of trade so common in Germany, speaks of this personality as an 
 attribute of all corporations. ''Universitates et contrahere possunt et 
 delinquere, quippe quae moraliter unam representant personam." De 
 CollegiisOpificum, in Germania, cap. 77, 19. This doctrine of the 
 modern civilians of France, Italy and Germany, may be traced up 
 even to the jurists of the Code and Pandects. "Personce vice fungitur 
 municipium et decuria." Pan. i, 22, de Jlde juss. I do not cite 
 these civilians as direct authorities, but mainly to show how deeply and 
 generally this pervading idea of legal personality and artificial individu- 
 ality entered into and formed the characteristic of all corporate bodies, 
 in those systems of law which might indirectly affect or govern our 
 own, or tend to influence even the popular use of our legal terms. 
 
 So far was this principle of corporate personality carried in our old 
 common law that reasons were expressly assigned why a corporation 
 could not be excommunicated or punished for crime. "Because it 
 has no soul," said Lord Coke, which, however ludicrously it may now 
 sound, was but saying quaintly, and in the style of that day, what in 
 modern times would be expressed by saying that a corporation, being 
 an artificial and not a moral person, must be incapable of guilt. The 
 very able argument in the celebrated historical case of the charter of 
 London, in 1682, went a good deal into these refinements, and it was 
 held on one side that a political person had a mind and reason, ac- 
 cording to Lord Chief Justice Hobart, and that its reason was ex- 
 pressed by its by-laws, whilst the attorney-general (whom Bishop 
 Burnet has egregiously wronged in calling him "a hot, dull man"), 
 argued most acutely, as well as very learnedly, in support of the ca- 
 pacity of a corporation to incur political, if not moral, guilt and pun- 
 ishment. 
 
 All these, it is true, are refinements of technical reasoning, in a 
 taste and fashion of thought which have passed away; but they prove 
 conclusively how strong and undoubted was that legal principle of 
 personality upon which these mere inferences and nice distinctions 
 were founded. 
 
 In order to continue the existence of such an artificial person, per- 
 petual succession is ordinarily necessary, though it was not strictly 
 essential, for it may be confined to any given number of lives in 
 being, holding in a sort of corporate joint tenancy, of which I think 
 examples may be found. As a legal person, it has only the powers 
 and properties specifically conferred upon it; and can possess and ex- 
 ercise no others, except such as are absolutely necessary to the exer- 
 cise of the powers expressly given. This is the enactment of our re- 
 vised statutes, which, as our revisers rightly said in their report on 
 that title of the law, is "declaratory of a principle of law frequently 
 recognized by our courts, and which it was deemed useful to confirm 
 by legislative authority." To these are added certain legal incidents
 
 6 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 by the common Ia\v, also declared in our statute, and common to all 
 corporations, as to sue and be sued, hold and convey real and per- 
 sonal property, to appoint officers for its services, and to make by- 
 laws for the management of its affairs. To these more ' important 
 rights, the law adds the external evidence of a name and a common 
 seal. This last, though apparently a matter of form, is not without 
 effect any more than the legal consequences of seals to instruments in 
 England and this state, so widely different from those of other legal 
 systems, where the distinction between sealed and unsealed instruments 
 is unknown. It is only through a common seal and name that any 
 grant of lands or covenant touching them can be made by a corpora- 
 tion. 
 
 [Powers incidental to corporate existence.] There are several very 
 useful and beneficial accessary powers or attributes, very often 
 accompanying corporate privileges, especially in moneyed cor- 
 porations, which, in the existing state of our law, as modified by 
 statutes, are more prominent in the public eye, and perhaps some- 
 times in the view of our courts and legislatures, than those which are 
 essential to the being of a corporation. Such added powers, however 
 valuable, are merely accessary. They do not in themselves alone 
 confer a corporate character, and may be enjoyed by unincorporated 
 individuals. 
 
 Such a power is the transfer ability of shares, whereby investments 
 may be made, withovit the owner losing the future control of his funds 
 under changes of circumstances. Such, too, is the limited responsi- 
 bility by which the stockholder, having once fairly paid up his share 
 of the capital, is exempted from further personal liability. So, too, 
 the convenience of holding real estate for the common purposes, exempt 
 from the legal inconveniences of joint tenancy or tenancy in common. 
 Again, there is the continuance of the joint property for the benefit 
 and preservation of the common fund, indissoluble by the death or 
 legal disability of any partner. Every one of these attributes or 
 powers, though commonly falling within our notions of a moneyed 
 corporation, is quite unessential to the legality of a corporation, may 
 be found where there is no pretense of a body corporate, nor will they 
 make one if all were combined, without the presence of the essential 
 quality of legal individuality. This distinction has been observed and 
 marked by Mr. Kyd, Kyd on Corporations, 13, with logical acuteness 
 and precision: "A corporation is a political person, capable, like a 
 natural person, of enjoying a variety of franchises. It is to a franchise 
 as the substance to its attribute. It is something to which many at- 
 tributes belong, but it is itself something distinct from those attri- 
 butes." 
 
 Thus, the transferability of shares is not essential to a corporation. 
 For instance, it does not enter into the constitution of our chartered 
 colleges, academies, hospitals and other corporate institutions founded 
 by public endowment, or private beneficence. It does not enter into the 
 charters ot incorporated scientific and literary societies for mutual ben- 
 efit or charity, in the funds of which the members have a beneficial in-
 
 2 TESTS : MERGER INTO ARTIFICIAL BODY. 7 
 
 terest. On the other hand, such a right of transfer may be incorporated 
 into partnership articles, and become a fundamental condition of them. 
 The general rule, in absence of any express stipulation, is indeed the 
 reverse of this, and in practice it is comparatively rare amongst us. 
 Hence it has become common to consider such transferability as a 
 clear indication of a corporate character. "We have seen," says 
 Collyer on Partnership, 647, "that in common cases a partner is pre- 
 cluded from assigning his interest to a stranger, so as to make that 
 stranger a partner. To prevent this rule' from affecting the stock- 
 holder of a trading company, there must be provision in the deed of 
 settlement enabling each stockholder to assign or transfer his share." 
 He then adds the limitations rendered necessary in England by the 
 Bubble act, which has no corresponding statute here, and the con- 
 clusion of the English decisions is that, by the common law, shares 
 may be made transferable absolutely. King v. Webb, 14 East 406; 
 Pratt v. Hutchinson, 15 East 515 ; Nichols v. Crosby, 2 Barn. & Cres. 
 814. See also other cases collected by Wordsworth on Joint Stock 
 Companies. Again, the joint stock companies authorized by statutes 
 in England are avowedly and confessedly not corporations ; and, 
 there, says Wordsworth on Joint Stock Companies, 183, "It is the 
 object of all companies to render their shares as negotiable as pos- 
 sible, so that in fact the restrictions imposed by the deed^of settlement 
 upon the transfer of shares are generally very few, and seldom extend 
 beyond requiring the transferer's name, etc., being registered in the 
 books of the company. The language of two or three of the later 
 acts of pai'liament is specially worthy of attention on this subject. 
 They declare, as strongly as words can declare legislative intention, 
 that transferability of shares, and the consequent succession, can be 
 authorized in common law copartnerships, without giving to such 
 companies any corporate existence, or rendering them less copartner- 
 ships in the strict legal sense of the term. In the statute of 6 Geo. IV, 
 ch. 42, it is enacted, "that it shall be lawful for any member of any 
 such society or copartnership, their respective executors, adminis- 
 trators or assigns, to sell and transfer any share or shares, or portion 
 or portions of, or the entire stock or interest which any such member 
 may possess in such society or copartnership, and the property or 
 funds thereof, subjected to such regulations and restrictions as may 
 be required by the constitution of such society or copartnership." 
 This statute is entitled "An act for the better regulation of copartner- 
 ships of certain bankers in Ireland." The preamble and recitals, and 
 all the sections speak of these banking firms as mere copartnerships. 
 This strongly marked and repeated recognition of them as such, in 
 the very sections authorizing that transferability and its consequent 
 succession, which have been insisted on as infallible marks of cor- 
 porate character, leave no doubt in my mind as to the intention and 
 understanding of the British parliament, that in authorizing associa- 
 tions with these and other powers similar to those granted by our 
 banking law, they were not creating bodies politic or corporate 
 
 But this is not all ; parliament has not left this meaning and inten-
 
 8 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 tion to be a matter of inference. In 1838, another act was passed 
 amendatory of the one just cited, and of another in relation to bank- 
 ers in England, which gave similar powers. That amendatory stat- 
 ute, after reciting and referring to the titles of these prior acts, adds 
 in the preamble, "and whereas, it is expedient that the said act should 
 be amended, so far as relates to the powers enabling any such copart- 
 nership, not being a body corporate, to sue any of its own members, 
 and the powers enabling any member of any such copartnership, not 
 being a body corporate, to s*ue the said copartnership. Be it therefore 
 enacted, etc., that any person now being, or who hereafter may be, a 
 member of any copartnership carrying on the business of banking 
 under the provisions of the said recited acts may commence and 
 prosecute any action," etc. 
 
 There can then be no reasonable doubt, that in these most deliber- 
 ately considered and very technically drawn acts of parliament, recog- 
 nizing copartnerships as having transferable stock, and giving them 
 the authority of suing in the name of their officers and other persons, 
 similar to those of the associations formed under our act, no bodies 
 corporate were intended or supposed to be created. 
 
 But, on this head of transferability we need not rely upon English 
 authority alone. We have as strong authority in our own usages and 
 decisions. 
 
 In the articles of the Merchants' Bank Association, before our re- 
 straining act, a similar transferability of shares was provided, and 
 these articles have the authority of Alexander Hamilton for their 
 validity. I shall have occasion to refer to them more fully here- 
 after. 
 
 S again, in the case of the Albany Exchange, before it received 
 its present charter, the validity of the partnership or joint stock com- 
 pany for a public enterprise, with transferable shares, was expressly 
 recognized. By the court Cowen, J. "The objection taken on the 
 argument, that this association was illegal, as being in the nature of 
 a corporation, issuing scrip and providing for a transfer of stock, is 
 not well founded. The act of association in this way is, we think, 
 properly characterized by the exception taken at the trial. It consti- 
 tutes a partnership valid, as being formed for the purposes of a law- 
 ful, honest enterprise." Townsend v. Goewey, 19 Wendell 427. 
 The learned judge then refers to, and adopts, the authority of Collyer 
 on Partnerships, p. 624, and the cases he cites. 
 
 Again, this transferability may be found in many sorts of trusts. 
 A well-known instance of this may be seen in the Tontine of New 
 York, originally built for the purposes of a merchants' exchange. It 
 is a trust of real estate, with transferable shares as personal property ; 
 it was originally settled by the most eminent counsel of this state, and 
 its validity has been attested by nearly fifty years' experience, during 
 which, above two hundred shares have passed through courts, assign- 
 ments, insolvencies, bankrupt commissions, distribution of estates, 
 etc., without their legal transferability having ever been impeached. 
 See printed articles of the Tontine, N. Y., 1793.
 
 2 TESTS : MERGER INTO ARTIFICIAL BODY. 9 
 
 In both of these last examples, as in other instances of trusts and 
 partnerships, lands were held exempt by operation of law from the legal 
 incidents of joint tenancy or tenancy in common, and the estate contin- 
 ued for the common purposes. This has been noted as a mark of cor- 
 porate character ; yet most corporations are limited in the extent of its 
 exercise, some are expressly excluded from the privilege, and very 
 many exist legally without its actual exercise or enjoyment. 
 
 The non dissolution by death or by legal disability is also noted in 
 the opinion of the supreme court in these cases as a mark of a corpo- 
 rate body. But that also may be found in the trusts just mentioned, 
 and others of a similar nature, and it may be adopted as an article of 
 ordinary partnership. It is the settled law of England that it may be 
 stipulated that death shall not dissolve the partnership, and further, 
 that the executors of the deceased shall become partners. Collyer on 
 Partnership, p. 5, 648; Pease v. Chamberlain, 2 Vesey Rep. 33; 
 Haggerman v. Spears, 7 Pick. Rep. 235 ; Wrexham v. Huddleton, i 
 Swanst. 514. 
 
 Again, a common name has been regarded as a corporate criterion. 
 To this Lord Ellenborough gives a full answer in Rex v. Webb. 
 "As to the fourth point, that the subscribers have presumed to act as 
 if they were a body corporate how is this made out? It was urged 
 that they assumed a common name, that they have a committee, etc. 
 But are these the unequivocal evidence and characteristics of a corpo- 
 ration? How many unincorporated assurance companies and other 
 descriptions of persons are there that use a common name, and have 
 their committees, general meetings and by-laws? Are these all ille- 
 gal ? Or which of these particulars can be stated as being of itself 
 the distinctive and peculiar criterion of a corporation?" Thence he 
 infers that "these subscribers have not acted peculiarly as a body 
 corporate." Rex v. Webb, 14 East's Rep. 406. 
 
 But, perhaps, in the general and popular understanding, the most 
 familiar distinction between corporate bodies and common partner- 
 ships, or other joint undertakings, is the exemption of the associates 
 from personal liability beyond the actual amount of their respective 
 proportions of the capital. The regarding this very frequent and 
 important incident of a corporation as an essential characteristic 
 seems not to be confined to popular opinion. Judge Cowen says, in 
 the decision of the cases now before us: "Among other peculiar 
 privileges conferred on these associations, and not enjoyed by natural 
 persons, I allude to that of the exemption of members from personal 
 liability for debt. This is mentioned by Angell & Ames, in their 
 treatise, as peculiar to a private corporation ; they notice it as a strik- 
 ing characteristic between a corporation and a partnership." Yet our 
 own statute of limited partnerships affords sufficient evidence that an 
 alteration of the existing law may be made by statute, so as to exempt 
 from personal liability beyond the stipulated share in the joint funds, 
 for the debts of a firm, without the remotest thought of converting 
 such firms into bodies corporate. Besides, the right of making a con- 
 tract, whereby those who tender it stipulate not to be bound beyond
 
 10 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 the amount of some specific pledged fund, must be a natural right 
 growing out of the very nature of contracts. If a company, or asso- 
 ciation, or an individual, offers to contract to make certain payments 
 only to the amount of certain specific funds, and others choose to ac- 
 cept that contract on those conditions, there can be nothing to prevent 
 the validity of such a contract, except some positive rule of law founded 
 on policy or an arbitrary enactment. In the absence of such a restric- 
 tion, it is and must be good. Such a limitation, then, must be bind- 
 ing on all who accept the conditions. The policy of our law and the 
 usages of business have, indeed, rightly fixed the presumption the 
 other way, so that the stipulation and the burden of proof of the 
 limited indebtedness are thrown upon those who expect to be bene- 
 fited by them. This right has been substantially admitted by the 
 highest tribunals in Great Britain, in the case of Minnett v. Whin- 
 nery, 3 Brown's Parl. Cas. 323, and it was held to be good by Lord 
 Ellenborough, in Alderson v. Clay, i Camp. 404. The doctrine has 
 been received as settled law by one of the best elementary writers of 
 the day, often cited by our own supreme court. "When a creditor," 
 says Collyer on Partnership, 214, "has notice, that by an arrangement 
 between partners, one of them, though appearing to the world as a 
 partner, shall not participate in the loss, and shall not be liable for it, 
 the creditor will be bound by the arrangement." 
 
 " The original articles of the Merchants' Bank, in the city of New 
 York, as an unincorporated association, with limited liability, as well 
 as transferable shares, which were read in argument by Mr. Kent, 
 have the great professional authority of Alexander Hamilton, who 
 prepared them, and of the many eminent men who joined in them, and 
 whose professional distinction gives to their approbation the character 
 of a sort of judicial sanction ; whilst the restraining act passed soon 
 after proves, as was unanswerably argued, that the legislature and 
 its legal advisers considered such a voluntary association, thus re- 
 straining its own liability, not as a violation of common law, but 
 merely as contradicting the financial policy of the state. 
 
 A similar analysis of such of the customary accessary powers of 
 specially chartered moneyed corporations, as from being most con- 
 ducive to ends of profit or convenience are ordinarily considered as 
 the essential qualities constituting corporations, will show, that all 
 such powers or incidents are merely convenient and desirable authori- 
 ties or modes of action, added to and engrafted upon the creation of 
 a body politic ; not the legal attributes absolutely essential to a cor- 
 poration, and denoting its existence as such. 
 
 Amongst us, as in England, bodies politic or corporate may exist 
 where the ultimate personal liability is still retained. The personal 
 liability is indeed suspended in such cases, and for a time merged in 
 that of the artificial corporate person ; but there may be an ulterior 
 recourse to the corporators when the former fails. Many corporate 
 banks in other states are so constituted, and with us some chartered 
 companies for insurance, etc., some for an indefinite, others to a lim- 
 ited extent beyond the capital. Corporate bodies may exist also
 
 2 TESTS : MERGER INTO ARTIFICIAL BODY. 1 1 
 
 without transferability of the rights of the corporators ; for a large 
 majority of our literary and charitable, as well as all our municipal 
 corporations, are so. On the other hand, by our own common law 
 as it would exist now, independently of statutory restrictions, associa- 
 tions might be formed and trusts created, having every one of the above 
 enumerated characteristics, which have been insisted upon as essential 
 to a corporation, except that personality which I before stated as form- 
 ing its strict and necessary essential legal definition. The present 
 joint stock companies of England afford pregnant examples, snowing 
 how many of these attributes may be embodied in voluntary associa- 
 tions which are confessedly not corporations. 
 
 In fact the line may be very faint, and depending wholly upon the 
 purely legal and technical character conferred, whether a joint stock 
 association or a trust, freed by law from certain positive restraints im- 
 posed by our modern statutes, be a corporation or not. The Tontine 
 trust, before mentioned, is managed by directors annually elected by 
 stockholders ; its real estate is held by trustees, continuing their trust 
 from hand to hand, during the lives of the original nominees and the 
 survivors of them, with transferable shares, and wholly without per- 
 sonal liability. For the reasons already stated, the eminence of the 
 counsel (the late R. Harrison) who prepared the trust, and the fre- 
 quency with which its legal character must have passed in review be- 
 fore lawyers and courts, and always without objection, it may well be 
 regarded as sanctioned judicially. It is a valid trust. Add to it a 
 legislative charter, making the associates a body corporate and no 
 more, what then is the effect? Simply to give a different technical 
 character, an artificial individuality^ Chief Justice Marshall's phrase, 
 a different mode of standing in courts. 
 
 Such was the actual history of the Albany Exchange. It was a 
 joint stock company, formally decided to be valid. 19 Wendell's 
 Rep. 427. A year or two after (1837), it appears by our statute 
 book to have been incorporated, but there is probably but little differ- 
 ence, besides the greater convenience of the corporate body, between 
 the former organization and the present. 
 
 The trusts specially permitted by an act of last year, Statutes of 
 1839, ch. 174, for the benefit of that singular people called Shakers, 
 were nothing more than exemptions from the recent restrictions of 
 trusts. They were authorized to continue, enlarge and manage their 
 property, by trusts, as they had done before the change in that title of 
 our law effected by the revised statutes. Had the law, in addition to 
 this, made every Shakers' United Society a body corporate, without 
 otherwise varying the original trust, the only change would have been 
 the conversion of a trust into an artificial legal person, with the same 
 effect substantially as to the interests of those beneficially interested. 
 
 Our act for general religious incorporations regulates the incor- 
 poration of churches of all religious denominations (other than those 
 provided for in the first and second sections) by trustees, who are to 
 be a body corporate. 
 
 Those who have had occasion to look into the mode in which dis-
 
 12 WARNER AND RAY v. BEERS BOLANDER v. STEVENS. 2 
 
 senting religious trusts are held in England, as I presume they were, 
 in the same manner, in New York when a colony, will, I think, per- 
 ceive that our statute adds little more than a convenient corporate 
 character to powers elsewhere, and formerly here, exercised under 
 trusts. 
 
 All these considerations lead me to the conviction that, for the pur- 
 pose of constitutional interpretation, we must look to the strict legal 
 meaning of the phrase body politic or corporate, and not to those cir- 
 cumstances or adjuncts, which amount only to the descriptions of the 
 manner in which such bodies are very frequently constituted when 
 used for purposes of profit. If this be regarded as a very strict rule 
 of interpretation, let it also be remembered, that it is applied where 
 such strictness is most appropriate, in the interpretation of a provision, 
 restraining the general sovereign power of the state expressing the 
 public will through a majority of the people's representatives. 
 
 There is yet another rule, of interpretation, which it is proper to 
 state before proceeding to examine whether the associations organized 
 under the banking law are or are not corporations. 
 
 Corporate rights are well defined bv Chancellor Kent and others to 
 be "franchises or peculiar privileged grants," of the nature of incor- 
 poreal property. Such franchises, when they are granted for pecu- 
 niary or other purposes valuable to private interests, are of the nature 
 of monopolies, and are always granted exclusively by the sovereign 
 power, directly or indirectly. It is a well-known fact, admitted on all 
 sides, that it was part of the policy and intent of our amended consti- 
 tution, to prevent, by a constitutional and fixed limitation of the leg- 
 islative authority, the influence of corruption or interest upon the leg- 
 islature, as well as the abuse of political favoritism, and the danger- 
 ous union of political with pecuniary power. The clause so designed, 
 though so general in its terms as to include even academies and vil- 
 lage corporations, it is not doubted, referred in its policy wholly to 
 the monopoly privileges of chartered capital, and especially to banks. 
 
 Here, then, in my view, arises another branch of inquiry ; and the 
 two distinct objects of examination are these : ( i ) Do these bank- 
 ing associations fall within the right legal definition of the word 
 "bodies politic or corporate," as before explained and established? 
 (2) Do they come' within the policy and intent of the framers of the 
 constitution or of the people who ratified it ? 
 
 [Test of corporate existence.] The most peculiar, and the strictly 
 essential characteristic of a corporate body, which makes it to be such, 
 and not some other thing in legal contemplation, is the merging 
 of the individuals composing the aggregate body into one dis-- 
 tinct, artificial individual existence. Now this is not found in the 
 associations under the act. A corporation can sue and be sued only 
 by its corporate name. It can act only according to the letter of the 
 law creating it. "It derives all its powers from that act," says Chief 
 Justice Marshall, "and is capable of exercising its faculties only in 
 the manner which that act authorizes." It has no natural powers
 
 2 TESTS: MERGER INTO ARTIFICIAL BODY. 13 
 
 which, in its discretion, it may exercise or not. It can exercise none 
 of those other powers, and possesses none of those other rights which 
 the individuals composing it could possess and exercise, were it a 
 mere society or partnership. Not so as to these associations. By 
 this act, suits on behalf of such associations may be brought in the 
 name of the president. Persons having claims against the company 
 may maintain their actions against the president. But there is no 
 reason, except that of mere convenience, why the association may not 
 also sue and be sued under their several real names, as other partners 
 may. This reason of convenience, it is obvious, would not apply 
 where the company was composed of a few persons, as if, for exam- 
 ple, one of our great banking firms were to come under the law. 
 
 It was indeed argued that the technical construction, which gives to 
 may the meaning of must or shall, applies here. But that construc- 
 tion holds only when there is a previous duty, to which the statute 
 adds some new power or authority, as in the case of a public officer ; 
 or where from other reasons it is manifest that (to use Judge Story's 
 words) "the legislature meant to impose an absolute duty, not to give 
 a discretionary power;" otherwise, as he says, "the ordinary use of 
 language must be presumed to be intended, unless it would defeat the 
 provisions of the act." I Peters' Rep. 64. The ordinary popular 
 discretionary sense of the word may is also the ordinary legal one. 
 The other is the exception. In our revised statutes, the words may 
 and shall are so used and distinguished. So they are in our annual 
 legislation, as when it is said of a company that it may hold real 
 estate, may take a certain rate of tolls, may borrow money. 
 
 Moreover, here the right to sue and be sued as other partners is a 
 common law right, and can not be taken away by mere implication. 
 "A statute made in the affirmative, without negative words," say the 
 highest authorities, "does not take away the common law." 2 Inst. 
 200. See also Dwarris on Statutes 637, and the authorities there re- 
 ferred to. * * * 
 
 Again, these associations do not act by a corporate name and seal, 
 but by another mode familiar to our law. They can contract through 
 their president, as a limited partnership must through its general 
 partner. They are authorized to sue and be sued through him ; as 
 Judge Cowen observes : "The power of the legislature to give a right 
 of action to one man in his own name for a debt due to another, has 
 always been exercised from our earliest legal history, and it is 
 now too late to call it in question." I refer to the several legislative 
 and judicial authorities which he has collected in his opinion on these 
 cases. They can not hold real estate as a corporation does, or con- 
 tract concerning it by their own name and common seal ; but, like 
 partnerships, they can have an equitable and beneficial interest in land. 
 Collyer, 70, 76. Their president takes as a trustee, and the associates 
 are but beneficiaries. 
 
 How then are these associations to be regarded in legal contempla- 
 tion ? 
 
 I assent fully to the conclusive reasoning of the counsel, who
 
 14 WARNER AND RAY V. BEERS BOLANDER V. STEVENS. 2 
 
 chiefly pressed this part of the argument (Mr. Kent), that they are 
 copartnerships relieved from the inhibitions of the restraining act, 
 and thus allowed to carry on banking business under certain condi- 
 tions. The policy of the state has prohibited its citizens from issuing 
 paper for circulation as money, or from associating together for cer- 
 tain banking purposes, i R. S. 7 11 - ^ reserved those privileges 
 for corporate banks. The act to authorize the business of banking 
 repealed that prohibition pro tanto, as to all individuals or companies 
 who would comply with its conditions. The associations in question 
 are partnerships complying with those conditions, and thus exempted, 
 as any other citizens may be on the same terms, from the operation 
 of a statutory restraint of general right, which is still binding on all 
 who will not comply with the conditions. This is so far in close an- 
 alogy to the law of special partnership, where exemption from the 
 general liability imposed by the law is tendered to all who comply 
 strictly with the provisions of the statute. The articles and certificate 
 in this act correspond to the certificate setting forth the names of 
 partners, amount of capital, time of termination and nature of busi- 
 ness, required by the title of "Limited Partnerships," i R. S. 764, 
 and with the articles which every such copartnership must have. The 
 general partner there is authorized to transact business and contract 
 for the rest; so, though with less authority, is the president here. 
 The mode of suing and being sued is precisely the same in both 
 cases. * * * 
 
 On the question being put, shall these judgments be reversed? all 
 the members of the court, with but a single exception (twenty-three 
 being present), voted in the negative. Whereupon the judgments of 
 the supreme court were affirmed. The court thereupon adopted the 
 following resolutions: 
 
 1. "Resolved, That the law entitled 'An act to authorize the busi- 
 ness of banking,' passed i8th April, 1838, is valid, and was constitu- 
 tionally enacted, although it may not have received the assent of two- 
 thirds of the members elected to each branch of the legislature." 
 This resolution was adopted by a vote of 23 to i. 
 
 2. "Resolved, That the associations organized in conformity with 
 the provisions of the act entitled 'An act to authorize the business of 
 banking,' passed April i, 1838, are not bodies politic or corporate, 
 within the spirit and meaning of the constitution." This resolution 
 was adopted by a vote of 22 to 3.
 
 3 TESTS: LEGISLATIVE INTENT. 1 5 
 
 Sec. 3. Tests. (2) The legislative intent. 
 
 THE PEOPLE, Ex REL. WINCHESTER, ETC., RESPONDENT, v. COLEMAN 
 ET AL., COMMISSIONERS OF TAXES, ETC., APPELLANTS. 1 
 
 1892. COURT OF APPEALS, NEW YORK. 133 N. Y. 279-287, 37 
 Am. & Eng. Corp. Cas. i, 31 N. E. 96. 
 
 Appeal from order of the general term of the supreme court, in 
 the first judicial department, made February 13, 1891, which affirmed 
 a judgment in favor of plaintiff, entered upon a decision of the court 
 on trial at special term, vacating an assessment. 
 
 This was a proceeding by certiorari to review the action of the 
 commissioners of taxes and assessments of the city of New York, in 
 imposing an assessment upon the capital stock of the National Ex- 
 press Company, a joint-stock company, of which the relator is treas- 
 urer, for the year 1888. 
 
 The facts, so far as material, are stated in the opinion. 
 
 FINCH, J. The relator was taxed upon its capital on the ground 
 that it had become a corporation within the meaning of the provision 
 of the Revised Statutes, which enacts that "all moneyed or stock 
 corporations deriving an income or profit from their capital or other- 
 wise, shall be liable to taxation on their capital in the manner herein- 
 after prescribed." (i R. S., title 4, ch. 13, part i.) The company 
 was formed as a joint-stock company or association in 1853 by a 
 written agreement of eight individuals with each other, the whole 
 force and effect of which, in constituting and creating the organiza- 
 tion, rested upon the common law rights of the individuals and their 
 power to contract with each other. The relation they assumed was 
 wholly the product of their mutual agreement and dependent in no 
 respect upon the grant or authority of the state. It was entered into 
 under no statutory license or permission, neither accepting nor de- 
 signed to accept any franchise from the sovereign, but founded wholly 
 upon the individual rights of the associates to join their capital and 
 enterprise in a relation similar to that of a partnership. A few years 
 earlier the legislature had explicitly recognized the existence and va- 
 lidity of such organizations, founded upon contract and evolved from 
 the common law rights of the citizens. (Laws of 1849, ch. 258.) 
 That act provided that any joint-stock company or association, which 
 consisted of seven or more members, might sue or be sued in the 
 name of its president or treasurer, and with the same force and effect, 
 so far as the joint property and rights were concerned, as if the suit 
 should be prosecuted in the names of the associates. But the act 
 explicitly disclaimed any purpose of converting the joint-stock asso- 
 ciations recognized as existing into corporations by a section prohibit- 
 ing any such construction. (5.) In 1851 the act was amended in 
 
 1 Arguments omitted.
 
 1 6 PEOPLE V. COLEMAN. $ j 
 
 its form and application, but in no respect material to the present in- 
 quiry. There is no doubt, therefore, that when the company was 
 formed and went into operation the law recognized a distinction and 
 substantial difference between joint-stock companies and corporations, 
 and never confused one with the other, and that the existing statute 
 which taxed the capital of corporations had no reference to or opera- 
 tion upon joint-stock companies or associations. 
 
 But two things have since occurred. The legislature, while steadily 
 preserving the distinction of names, has with equal persistence con- 
 fused the things by obliterating substantial and characteristic marks 
 of difference, until it is now claimed that the joint-stock associations 
 have grown into and become corporations by force of the continued 
 bestowal upon them of corporate attributes. It is said, and very 
 probably correctly said, that the legislature may create a corporation, 
 without explicitly declaring it to be such, by the bestowal of a corpo- 
 rate franchise or corporate attributes, and the cases of banking asso- 
 ciations are referred to as instances of actual occurrence. (Thomas 
 v. Dakin, 22 Wend. 9;* Bank of Watertownv. Watertown, 25 Wend. 
 686; People v. Niagara, 4 Hill 20.) It is added that such result 
 may happen even without the legislative intent, and because the gift 
 of corporate powers and attributes is tantamount to a corporate crea- 
 tion. It is then asserted that a series of statutes, beginning with the 
 act of 1849, has ended in the gift to joint-stock associations of every 
 essential attribute possessed by and characteristic of corporations 
 (Laws of 1853, ch. 153; Laws of 1854, ch. 245 ; Laws of 1867, ch. 
 289) ; that the lines of distinction between the two, however far apart 
 in the beginning, have steadily converged until they have melted into 
 each other and become identical ; that every distinguishing mark and 
 characteristic has been obliterated, and no reason remains why joint 
 stock associations should not be in all respects treated and regarded 
 as corporations. 
 
 Some of this contention is true. The case of People, ex rel. Platt, 
 v. Wemple (117 N. Y. 136), shows very forcibly how almost the 
 full measure of corporate attributes has, by legislative enactment, 
 been bestowed upon joint-stock associations, until the difference, if 
 there be one, is obscure, elusive and difficult to see and describe. 
 And yet the truth remains that all along the line of legislation the dis- 
 tinctive names have been retained as indicative and representative of 
 a difference in the organizations themselves. As recently as the acts 
 of 1880 and 1 88 1, which formed the subject of consideration in the 
 Wemple case, the legislature, dealing with the subject of taxation and 
 desiring to tax business and franchises, imposed the liability upon 
 "every corporation, joint-stock company or association whatever now 
 or hereafter incorporated or organized under any law of this state." 
 It is significant that the words "or organized" were inserted by 
 amendment, and evidently for the understood reason that joint-stock 
 
 'In/ra, p. 19.
 
 3 TESTS: LEGISLATIVE INTENT. 17 
 
 companies could not properly be said to be ' incorporated," but 
 might be correctly described as "organized" under the laws of the 
 state. This persistent distinction in the language of the statutes I 
 should not be inclined to disregard or treat as of no practical conse- 
 quence, when seeking to arrive at the true intent and proper con- 
 struction of the statute, even if I were unable to discover any practi- 
 cal or substantial difference between the two classes of organizations 
 upon which it could rest, or out of which it grew, for the distinction 
 so sedulously and persistently observed would strongly indicate the 
 legislative intent, and so the correct construction. 
 
 But I think there was an original and inherent difference between 
 the corporate and joint-stock companies known to our law which leg- 
 islation has somewhat obscured, but has not destroyed, and that dif- 
 ference is the one pointed out by the learned counsel for the respon- 
 dent, and which impresses me as logical and well supported by 
 authority. It is that the creation of the corporation merges in the 
 artificial body and drowns in it the individual rights and liabilities 
 of the members, while the organization of a joint-stock company leaves 
 the individual rights and liabilities unimpaired and in full force. 
 The idea was expressed in Supervisors of Niagara v. People, 7 Hill 
 5 12, and in Gifford v. Livingston, 2 Den. 380, by the statement that the 
 corporators lost their individuality and merged their individual char- 
 acters into one artificial existence ; and upon these authorities a cor- 
 poration is defined on behalf of the respondents to be "an artificial 
 person created by the sovereign from natural persons and in which 
 artificial person the natural persons of which it is composed become 
 merged and non-existent." I am conscious that legal definitions in- 
 vite and provoke criticism, because the instances are rare in which 
 they prove to be perfectly accurate ; and yet this one offered to us 
 may be accepted if it successfully bears some sufficient test. In put- 
 ting it on trial we may take the nature of the individual liability of 
 the corporators on the one hand and of the associates on the other, 
 for the debts contracted by their respective organizations, as a suffi- 
 cient test of the difference between them, and contrast their nature 
 and character. 
 
 It is an essential and inherent characteristic of a corporation that it 
 alone is primarily liable for its debts, because it alone contracts them, 
 except as that natural and necessary consequence of its creation is 
 modified in the act of its creation by some explicit command 
 of the statute which either imposes an express liability upon the 
 corporators in the nature of a penalty, or affirmatively retains and 
 preserves what would have been the common-law liability of the 
 members from the destruction involved in the corporate creation. 
 In other words, the individual liability of the members, as it would 
 have existed at common law, is lost by their creation jnto a corpo- 
 ration, and exists thereafter only by force of the statute, upon some 
 new and modifying conditions, to some partial or changed ex- 
 tent, and so far preventing, by the intervention of an express com- 
 2 WIL. CASES.
 
 1 8 PEOPLE V. CUL-EMAN 3 
 
 mand, the total destruction of individual liabilities which otherwise 
 would flow from the inherent effect of the corporate creation. The 
 penalties sometimes imposed are, of course, new statutory liabilities 
 which never at common law rested upon the individual members. 
 The retained liability occasionally established is in the nature and a 
 parcel of such original liability, as we had occasion to show in Rogers 
 v. Decker, 131 N. Y. 490, but is retained by force of the express 
 command of the statute, and in that manner saved from the de- 
 struction which otherwise would follow the simple creation of the 
 corporation. Ordinarily, these individual liabilities exist upon 
 other than common-law conditions, and make the corporators rather 
 sureties or guarantors of the corporation than original debtors, since 
 in general their liability arises after the usual remedies against the 
 corporation have been exhausted. But where that is not so, the 
 invariable truth is that the creation of the corporation necessarily 
 destroys the common-law liability of the individual members for its 
 debts, and requires at the hands of the creating power an affirmative 
 imposition of new personal liabilities or a specific retention of old 
 ones from the destruction which would otherwise follow. Exactly 
 the opposite is true of joint-stock companies. Their formation de- 
 stroys no part or portion of their common law liability for the debts 
 contracted. Those debts are their debts, for which they must answer. 
 Permission to sue their president or treasurer is only a convenient 
 mode of enforcing that liability, but in no manner creates or saves it. 
 The statute of 1853 did interfere with it. That act required, in the 
 first instance, a suit against the president or treasurer, and so a pre- 
 liminary exhaustion of the joint property. But that act was modal, 
 and determined the procedure. It suspended the common-law right, 
 but recognized its existence. We so held in Witherhead v. Allen, 
 4 Abb. Ct. App. Dec. 628, and at the same time said that the asso- 
 ciations were not corporations, but mere partnership concerns. Even 
 that mode of procedure has been modified by the Code, 1922, 1923, 
 so that the creditor, at his option, may sue the associates without 
 bringing his action against the president or treasurer. These last and 
 quite recent enactments show that the legislative intent is still to pre- 
 serve and not destroy the original difference between the two classes 
 of organizations ; to maintain in full force the common-law liability 
 of associates, and not to substitute for it that of corporators, and pre- 
 serving in continued operation that normal and distinctive difference, 
 to evince a plain purpose not to merge the two organizations in one or 
 destroy the boundaries which separate them. That intent, once clearly 
 ascertained, determines the construction to be adopted, and may be the 
 only reliable test in view of the power of the state to clothe one or- 
 ganization with all the attributes of the other. The drift of legisla- 
 tion has been to lessen and obscure the original and characteristic 
 difference. On the one hand, corporations have been created with 
 positive provisions retaining more or less the individual liability of the 
 members, and on the other the joint-stock companies have been 
 clothed with most of the corporate attributes, but enough of the
 
 4 TESTS: POWERS CONFERRED. 
 
 19 
 
 original difference remains to show that our legislation not only care- 
 fully preserves the distinction of names, but sufficient, also, of the 
 original difference of character and quality to disclose a clear intent 
 not to merge the two. 
 
 We may thus see upon what the legislative intent to preserve them 
 as separate and distinct is founded and what distinguishing character- 
 istics remain. The formation of the one involves the merging and 
 destruction of the common law liability of the members for the debts, 
 and requires the substitution of a new or retention of the old liability 
 by an affirmative enactment which avoids the inherent effect of the 
 corporate creation ; in the other, the common law liability remains 
 unchanged and unimpaired and needing no statutory intervention to 
 preserve or restore it ; the debt of the corporation is its debt and not 
 that of its members, the debt of the joint-stock company is the debt 
 of the associates however enforced ; the creation of the corporation 
 merges and drowns the liability of its corporators, the creation of the 
 stock company leaves unharmed and unchanged the liability of the 
 associates ; the one derives its existence from the contract of individ- 
 uals, the other from the sovereignty of the state. The two are alike 
 but not the same. More or less, they crowd upon and overlap each 
 other, but without losing their identity, and so, while we can not say 
 that the joint-stock company is a corporation, we can say, as we did 
 say in Van Aernam v. Bleistein, 102 N. Y. 360, that a joint-stock 
 company is a partnership with some of the powers of a corporation. 
 Beyond that we do not think it is our duty to go* 
 
 The order should be affirmed, with costs. 
 
 All concur. 
 
 Order affirmed. 
 
 Sec. 4. Tests. (3) The powers conferred. 
 THOMAS v. DAKIN. 
 
 1839. IN THE SUPREME COURT OF NEW YORK. 22 Wendell 
 
 (N. Y.) 9-H2. 
 
 Chief Justice NELSON : This is an action brought by the plaintiff, 
 as president of the Bank of Central New York, an association formed 
 under what is familiarly known as the general banking law, passed 
 April 18, 1838, to recover several demands due the institution. 
 
 The defendant has demurred to the declaration, and urges the un- 
 constitutionality of the law by way of defense ; and it is insisted, in 
 his behalf: (i) That the associations formed under this law are 
 corporations; and (2) That a general law authorizing the creation of 
 these bodies is inconsistent with the ninth section of the seventh arti- 
 
 1 Statement of facts, except what is given in opinions, is omitted ; also ar- 
 guments, and much of the opinions of Nelson, C. J., and Cowen, J.
 
 20 THOMAb V. DAKIN. 4 
 
 cle of the constitution. On the part of the plaintiffs, it is urged in 
 reply: (i) That the associations are not corporations; (2) That if 
 they be, the act authorizing them may be passed by a majority bill; 
 and (3) If within the ninth section, still the law may be passed by 
 two-thirds of the members elected. 
 
 [Test of Corporate Existence.] Are these associations corporations ? 
 In order to determine this question, we must first ascertain the 
 properties essential to constitute a corporate body, and compare them 
 with those conferred upon the associations, for if they exist in com- 
 mon, or substantially correspond, the answer will be in the affirma- 
 tive. A corporate body is known to the law by the powers and 
 faculties bestowed upon it, expressly or impliedly, by the charter; the 
 use of the term corporation in its creation is of itself unimportant, ex- 
 cept as it will imply the possession of these. They may be expressly 
 conferred, and then they denote this legal being as unerringly as if 
 created in general terms. It has been well said by learned expound- 
 ers, that a corporation aggregate is an artificial body of men, com- 
 posed of divers individuals, the ligaments of which body are the 
 franchises and liberties bestowed upon it, which bind and unite all 
 into one, and in which consists the whole frame and essence of the 
 corporation. 
 
 [Powers Incidental to Corporate Existence.] The ' ' franchises and lib- 
 erties," or, in more modern language, and as more strictly applicable 
 to private corporations, the powers and faculties, which are usually 
 specified as creating corporate existence, are: i. The capacity of 
 perpetual succession ; 2. The power to sue and be sued, and to grant 
 and receive in its corporate name ; 3. To purchase and hold real and 
 personal estate ; 4. To have a common seal, and 5. To make by- 
 laws. These indicia were given by judges and elementary writers 
 at a very early day, since which time the institutions have greatly 
 multiplied, their practical operation and use have been thoroughly 
 tested, and their peculiar and essential properties much better under- 
 stood. Any one comprehending the scope and purpose of them, at 
 this day, will not fail to perceive that some of the powers above speci- 
 fied are of trifling importance, while others are wholly unessential. 
 For instance, the power to purchase and hold real estate is no other- 
 wise essential than to afford a place of business; and the right to use 
 a common seal, or to make by-laws, may be dispensed with altogether. 
 For as to the one, it is now well settled that corporations may con- 
 tract by resolution, or through agents, without seal ; and as to the 
 other, the power is unnecessary in all cases where the charter suffi- 
 ciently provides for the government of the body. The distinguishing 
 feature, far above all others, is the capacity conferred, by which a 
 perpetual succession of different persons shall be regarded in the 
 law as one and the same body, and may at all times act in fulfillment 
 of the objects of the association as a single individual. 
 
 In this way, a legal existence, a body corporate, an artificial being, 
 is constituted ; the creation of which enables any number of persons 
 to be concerned in accomplishing a particular object, as one man.
 
 4 TESTS: POWERS CONFERRED. 21 
 
 While the aggregate means and influence of all are wielded in effect- 
 ing it, the operation is conducted with the simplicity and individuality 
 of a natural person. In this consists the essence and great value of 
 these institutions. Hence it is apparent that the only properties that 
 can be regarded strictly as essential, are those which are indispensable 
 to mold the different persons into this artificial being, and thereby 
 enable it to act in the way above stated. When once constituted, 
 this legal being created, the powers and faculties that may be con- 
 ferred are various limited or enlarged, at the discretion of the legis- 
 lature, and will depend upon the nature and object of the institution, 
 which is as competent as a natural person to receive and enjoy them. 
 We may, in short, conclude by saying, with the most approved au- 
 thorities at this day, that the essence of a corporation consists in a ca- 
 pacity: (i) To have a perpetual succession under a special name, 
 and in an artificial form; (2) to take and grant property, contract 
 obligations, sue and be sued by its corporate name as an individual; 
 and (3) to receive and enjoy in common, grants of privileges and 
 immunities. 
 
 We will now endeavor to ascertain with exactness the powers and 
 attributes conferred upon these associations by virtue of the statute. 
 The first fourteen sections ( i to 14) prescribe the duties of the comp- 
 troller in furnishing notes for circulation, taking the required securi- 
 ties, etc. The fifteenth provides that any number of persons may 
 associate to establish offices of discount, deposit and circulation. The 
 sixteenth, that they shall make and file a certificate, specifying: I. 
 The name to be used in the business. 2. The place where the busi- 
 ness shall be carried on. 3. The amount of capital stock and num- 
 ber of shares into which divided. 4. The names of the shareholders. 
 5. The duration of the association. The eighteenth confers upon 
 the persons thus associating the most ample powers for carrying on 
 banking operations, together with the right "to exercise such inciden- 
 tal powers as shall be necessary to carry on such business;" also to 
 choose a president, vice-president, cashier and such other officers and 
 agents as may be necessary. By the twenty-first and twenty-second 
 sections, contracts, notes, bills, etc., shall be signed by the president 
 and cashier; and all suits, actions, etc., are to be brought in the 
 name of, and also against, the president for the time being; and not 
 to abate by his death, resignation or removal, but to be continued in 
 the name of the successor. Twenty-fourth section : The association 
 may purchase and hold real estate, etc., the conveyance to be made 
 to the president, or such other officer as shall be designated, who may 
 sell and convey the same free from any claim against shareholders. 
 Nineteenth section : The shares of capital stock to be deemed per- 
 sonal property, transferable on the books of the association ; and 
 every person becoming a shareholder by such transfer shall succeed 
 to all the rights and liabilities of the prior holder. Twenty-third 
 section: No shareholder to be personally liable; and the association 
 is not to be dissolved by the death or insanity of any shareholder. 
 
 i. Upon a perusal of these provisions, it will appear that the asso-
 
 22 THOMAS V. DAKIN. 4 
 
 ciation acquires the power to raise and hold for common use any given 
 amount of capital stock for banking purposes, which, when subscribed, 
 is made personal property, and the several shares transferable the 
 same and with like effect as in case of corporate stock ; to assume a 
 common name under which to manage all the affairs of the associa- 
 tion ; to choose all officers and agents that may be necessary for the 
 purpose, and remove and appoint them at pleasure. It will, hence, 
 be seen, that although the association may be composed of a number 
 of different persons, holding an interest in the capital stock, its oper- 
 ations are so arranged that they do not appear in conducting its 
 affairs ; all are so bound together, so molded into one, as to consti- 
 tute but a single body, represented by a common name, or names 
 (the knot of the combination), and in which all the business of the 
 institution is conducted by common agents. In this way it purchases 
 and holds real and personal property, contracts obligations, discounts 
 bills, notes and other evidences of debt, receives deposits, buys gold 
 and silver bullion, bills of exchange, etc., loans money, sues and is 
 sued, etc. It is true some portion of the business is conducted in 
 the assumed name, and some in the name of the president for the 
 time being; but this in no manner changes the character of the body. 
 A corporation may have more than one name; it may have one in 
 which to contract, grant, etc., and another in which to sue and be 
 sued; so it may be known by two different names, and may sue and 
 be sued in either; and the name of the president, his official name, or 
 any other, will answer every purpose. 2 Bacon's Abr. 5 ; 2 Salk. 
 451 ; 2 Salk. 237; Ld. Raym. 153, 680. The only material circum- 
 stance is, a name, or names, of some kind, in which all the affairs of 
 the company may be conducted. So much, and no more, is essential 
 to give simplicity and effect to the operation. An artificial being is 
 thus plainly created, capable of receiving all the ample powers and 
 privileges conferred upon the associations, and of managing their di- 
 versified concerns in an individual capacity. All business is to be 
 conducted in a common or proper name. 
 
 2. This artificial being possesses the powers of perpetual succes- 
 sion. Neither sale of shares or death of shareholders affect it; if one 
 should sell his interest, or die, the purchaser or representative, by 
 operation of law, immediately takes his place. 19. Nor can the 
 insanity of a member work a dissolution. Id, Officers and agents 
 for conducting the business of the association are secured. In case 
 of vacancy, by death or otherwise, the place may at once be filled. 
 1 8. For the entire duration, therefore, of the association, and which 
 may be without limit, 16, sub. 5, the whole body of shareholders, 
 though perpetually shifting, constitute the same uniform, artificial 
 being which is to be engaged through the instrumentality of officers 
 and agents in conducting the business of the concern, and no member 
 is personally liable. 23. Then, as to the powers conferred, with- 
 out again specially recurring to them, it will be seen at once that the 
 associations possess all that are deemed essential, according to the 
 most approved authorities, to constitute a corporate body. They
 
 4 TESTS : POWERS CONFERRED. 23 
 
 have a capacity: i. To have perpetual succession under a common 
 name, and in an artificial form. 2. To take and grant property, con- 
 tract obligations, to sue and be sued by its corporate name in the 
 same manner as an individual. 3. To receive grants of privileges and 
 immunities, and to enjoy them in common. All these are expressly 
 granted, and many more, besides the general sweeping clause, "to 
 exercise such incidental powers as shall be necessary to carry on such 
 business" (meaning the business of banking), under which even the 
 seal and right to make by-laws are clearly embraced, if essential in 
 conducting the affairs of the institution. * * * 
 
 By COWEN, J. Independent of authority and general reasoning, 
 I have had very great difficulty, on a simple reading, to avoid see- 
 ing plain, direct and express enactments in the general banking law, 
 conferring all the requisites demanded by counsel, i. I read of a 
 collective existence, i, e., a body of men associated under a name 
 conferred mediately, i. e., through the certificate of association, by the 
 sovereign power, which is the legislature. 2. As such collective ex- 
 istence, I read that the association has a standing in court, perhaps in 
 its own name, or at least in the name of its president. It recovers 
 judgments for debts due to it, and execution is levied on its property, 
 upon a recovery against it. 3-1 read of power to take and convey 
 title to property, acquire and give rights ; all this to be done, as it 
 must be in every corporation, by its agents, but certainly in its collec- 
 tive name and designation; for the statute demands that the name 
 which it assumes shall be used in all its dealings. 4. I shall have 
 occasion to show that under a general provision of the act, there can 
 be no doubt of its power to make by-laws. There are various con- 
 siderations connected with this short view of the question, which may 
 perhaps tend to the illustration, distinctness and strength of that 
 view. 
 
 [Difference Between a Partnership and a Corporation 1 ] The associa- 
 tions formed under the act may, like our ordinary banks, elect their 
 president, cashier and directors, confer on the latter as I have as- 
 sumed and intend to show, the power to make and repeal by-laws, 
 to regulate elections, and through their proper agents in the name 
 of the association, to exercise all the other functions of our or- 
 dinary incorporated banking institutions.' The latter are well known 
 as aggregate moneyed corporations.' 
 
 It can not be denied that a voluntary association or partnership 
 might, temporarily, also elect the like officers and agents, confer upon 
 them nearly the same powers, and perform about the same functions, 
 without any charter or act of incorporation whatever. Collyer on 
 Partnership, 621, Am. ed. 1834. There is, however, much difference 
 between the power, duration and legal effect ; a corporation aggre- 
 gate is in law an individual entirely distinct from its members, each 
 of whom may hold shares or interests in the corporation, legally 
 transferable in virtue of its charter ; whereas a voluntary association 
 is made up of individuals not distinct from, but belonging in their 
 own names and rights to the company. Their shares or interests are 
 
 1 See p. 170, infra.
 
 24 THOMAS V. DAKIN. 4 
 
 common to all ; and, except so far as these may be made up of prop- 
 erty in possession, they can not be transferred so as to create anything 
 more than an equitable right in the assignee. Hence a voluntary 
 company, asserting that it is possessed of stock transferable at the 
 option of the holder, has been said to be punishable for pretending to 
 act as a corporation. Collyer on Partnership, 624. 
 
 The members of a copartnership are joint tenants in the stock and 
 all the effects of the company, and, on the death of each, his interest 
 in the common choses in action, at law, survives to the other mem- 
 bers, while his interest in the common land and choses in possession 
 passes, as an undivided share, to his heirs or personal representatives. 
 Collyer on Partnership, 4, 5, 68. The nature of these interests and 
 the course of succession are, in some respects, modified by the court 
 of chancery. Collyer on Partnership, 70, 71. All the members 
 must, as we have in part before seen, be named in suits by or against 
 the company, the right or liability to which, on the death of one, sur- 
 vives to all the others. Collyer on Partnership, 386, 395, 420, 427. 
 Each is individually liable for the whole debts due from the company, 
 Collyer on Partnership, 212, and may release and discharge all the 
 debts due to them. Collyer on Partnership, 239. One may enter 
 upon, use or otherwise control all the common property, real or per- 
 sonal; indeed, he may, in general, convert it to his own use, subject 
 to an account. Collyer on Partnership, 211. All the remedies inter 
 se, with few exceptions, are by action of account or bill in equity. 
 Collyer on Partnership, 143. The firm can not, in general, sue or 
 be sued by any one of its members, for this would involve the absur- 
 dity of a man being both plaintiff and defendant on the same record. 
 Collyer on Partnership, 143, 644-5. Partnerships are dissoluble, not 
 only by death or insanity, but by the bankruptcy of a member ; a 
 general sale of his partnership effects by execution ; his attainder of 
 felony, if it result in his civil death ; an assignment by himself of all 
 his interest, and the marriage of a partner who is a feme sole. Indeed, 
 the better opinion is, that, however strong the provisions against a 
 dissolution may be in the articles of copartnership, the whole concern 
 may be dissolved at any time, by the act of a single partner, at his 
 own mere pleasure. Even during the continuance of the partnership, 
 he may interrupt its proceedings, by interdicting any single measure, 
 though agreed on by a majority of the firm. At least this is generally 
 so at law, and the power, it is apprehended, can be but partially quali- 
 fied by a court of chancery. Collyer on Partnership, 58, 2. 3 
 Kent's Comm., 534, 3d ed. It would seem clearly to follow, if it 
 has ever been disputed, that any powers, though jointly conferred on 
 others, as to act in the direction of affairs, or use a common seal, may 
 be revoked at the pleasure of either partner. 
 
 Most of these incidents it is impossible for the partners to avoid by 
 any stipulations in their articles of connection ; and in proportion as any 
 body of men is authorized by statute to hold property and sue and be 
 sued without such incidents, they approach the character of a corpo- 
 ration. While they continue partners they are considered as natural
 
 4 TESTS: POWERS CONFERRED. 25 
 
 persons merely, as so many joint tenants or tenants in common, of all 
 their property. In proportion as, by statute, they cease to be so they 
 become an artificial person. These two are the only persons known 
 to the law, according to the language of the great commentator, 
 i Black. Comm. 123. "Persons," says he, "are divided by the law 
 into either natural persons or artificial. Natural persons are such as 
 the God of nature formed us. Artificial are such as are created and 
 devised by human laws for the purposes of society and government, 
 which are called corporations or bodies politic." In another part of 
 his work, i Black. Comm. 467, he shows the advantages of corpora- 
 tions over partnerships or voluntary companies. He says: "Corpo- 
 rations are formed in order to preserve entire and forever those rights 
 and immunities which, if they were granted only to those individuals 
 of which the body is composed, would, upon their death, be utterly 
 lost and extinct." In a mere voluntary assembly he admits the indi- 
 viduals that compose it might act up to the purposes for which they 
 associated so long as they could agree to do so; "but they could 
 neither frame nor receive any laws or rules of their conduct ; none, at 
 least, which would have any binding force, for want of coercive power 
 to create a sufficient obligation ; and when they are dispersed by death 
 or otherwise, how shall they transfer their advantages to others 
 equally unconnected with themselves? 
 
 "So, also, with regard to holding estates or other property, if land 
 be granted for the common purpose to twenty individuals not incor- 
 porated, there is no legal way of continuing the property to any other 
 persons for the same purpose, but by endless conveyances from one to 
 another, as often as the hands are changed. But when they are con- 
 solidated and united into a corporation, they and their successors are 
 then considered as one person in law; as one person, they have one 
 will, which is collected from the sense of the majority of the individ- 
 uals ; this one will may establish rules and orders for the regulation 
 of the whole, which are a sort of municipal laws of this little republic ; 
 or rules and statutes may be prescribed to it at its creation, which are 
 then in the place of natural laws ; the privileges and immunities, the 
 estates and possessions of the corporation, when once vested in them, 
 will be forever vested, without any new conveyance or new succes- 
 sions ; for all the individual members that have existed from the 
 foundation to the present time, or that shall ever hereafter exist, are 
 but one person in law, a person that never dies ; in like manner as 
 the river Thames is still the same river, though the parts which com- 
 pose it are changing every instant." In this quotation, I have taken 
 the words of Blackstone as he applied them, by way of example, to 
 the case of a college in one of the English universities ; and without 
 quoting him literally throughout, have confined myself to such things 
 as the learned author considers peculiar to every aggregate corpora- 
 tion. These are, in short, the receiving of peculiar laws and the 
 making of by-laws for itself; perpetual succession, both as to its 
 privileges and property; the having one will, as collected from the 
 power of the majority to make by-laws ; and the being but one per-
 
 26 THOMAS V. DAKIN. 4 
 
 son in law, a person that dies not, but continues the same individual, 
 though its parts may change. See, also, Ang. & Ames on Corp., 
 23. * * * 
 
 [The Idea of Perpetual Succession.] The great and essential object to 
 be attained by the creation of a corporation, is continuity (sometimes 
 called immortality) and individuality ; "properties," says Ch. J. 
 Marshall, "by which a perpetual succession of many persons are con- 
 sidered as the same, and may act as the single individual. They 
 enable a corporation to manage its own affairs, and to hold property 
 without the perplexing intricacies, the hazardous and endless neces- 
 sity of perpetual conveyances for the purpose of transmitting it from 
 hand to hand." Dartmouth College v. Woodward, 4 Wheat. 636; 
 Angel & Ames on Corp., 2. A peculiar sort of individuality^ and a 
 peculiar mode of succession, for a particular purpose, and not allowed 
 by the general law to natural persons, enter into every definition of a 
 corporation that I have seen, i Kyd on Corp., 2-3. With us there 
 can be no recent creation of such an artificial person except by stat- 
 ute. 2 Kent's Comm., 276, 3d ed. No agreement of individuals 
 can so far alter the nature of things ; and, as we have seen of -persons* 
 there can be only two kinds, natural and artificial, so there can be but 
 two modes in which property is transmitted by succession. The one 
 takes place between natural persons, of which we have an example in 
 descent on the death of the ancestor ; the other is between predeces- 
 sors and successors in a corporation aggregate or sole. The one may 
 be called a natural, and the other an artificial succession; and it is 
 evident that the latter can not exist independent of a corporation, any- 
 more than the former without natural persons, i Kyd on Corp. 2-3. 
 
 In the associations created by the banking law great care has been 
 taken to introduce and maintain corporate succession in every part of 
 the system. I have already endeavored to show that the beneficial 
 interest in all its real and personal property belongs to any associa- 
 tion formed under that law as an individual. If I have succeeded, it 
 follows that such association is a corporation. The principle of suc- 
 cession is equally maintained in respect to the president for the pur- 
 pose of receiving conveyances of real estate and selling it; and so 
 when he acts as the organ of maintaining actions in right of the asso- 
 ciation and defending actions brought. All these rights, powers and 
 duties pass in perpetual succession from president to president during 
 the existence of the company. The president and his successors thus 
 come to enjoy, in the nature of a sole corporation, a perpetual trustee- 
 ship in the real estate, and a perpetual power or control over it, to- 
 gether with the suits of the company. "From their having perpetual 
 succession, and suing and being sued in their political character, single 
 persons of both these descriptions have (without much propriety, as 
 Mr. Kyd thinks) been uniformly, in the books of English law, called 
 corporations." Kyd on Corporations, 19, 20. "A sole corporation, 
 as its name implies, consists only of one person, to whom and his 
 successors belongs that legal perpetuity, the enjoyment of which is 
 denied to all natural persons." Angell & Ames on Corporations, 18,
 
 4 TESTS: POWERS CONFERRED. 2/ 
 
 19; i Black. Comm., 469. It need scarcely be remarked that the 
 president of the banking associations in question comes fully within 
 the general definition. 
 
 In England, sole corporations are mostly employed to hold in suc- 
 cession the rights and property of the ecclesiastical establishment ; and 
 it is said they can not take personal property in succession, but only 
 real. Sole corporations are not common in the United States. Angell 
 & Ames on Corp., 19, 20. But it is not perceived why an officer, or 
 other person authorized to hold property, real or personal, to him and 
 his successors, be not a sole corporation within the plain meaning of 
 the definition. The chamberlain of London, who may take a recog- 
 nizance to him and his successors, in his political capacity, in trust for 
 orphans, was said to be a sole corporation in trust. Byrd v. Wilford, 
 Cro. Eliz. 464. It was there said by Gawdy and Fenner, Js., that the 
 chamberlain was a special corporation for that purpose ; and an obli- 
 gation may as well go in succession as land. So of the comptroller 
 who takes an assignment of stocks, bonds and mortgages, to hold 
 under the general banking law. Surely these would not, on his death, 
 go to his executors. They are holden by him in trust, to pay the 
 debts of the association ; and would pass to his successors. He is 
 equally a corporation sole, for this special purpose, according to the 
 English definition. The supervisor of a town may sue or be sued. 
 2 R. S. 387, 8, 96 and 100, 2d ed. Suppose he were authorized 
 to hold lands and chattels to him and his successors, in trust for his 
 town, would he not be a sole corporation, as the board of supervisors 
 or loan officers are an aggregate corporation in respect to lands which 
 they hold for the county? Denton v. Jackson, 2 Johns. Ch. R. 325. 
 The grand test of a corporation is the mode in which property, suc- 
 ceeds from one to another. When it does not go to the heirs of the 
 holder as a natural person, it passes to the successor or successors, 
 because it is holden in a corporate capacity. The holders are there- 
 fore said to be a person or body politic and corporate, in opposition 
 to their natural capacity. Thus, all property must be holden by 
 natural persons or corporations. If the property of an association 
 under the general banking law be not holden in the natural capacity 
 of the different members as partners, the only alternative remaining 
 is a holding by corporations aggregate or sole. No third description 
 of person is known to our law. None was known to the Roman law. 
 See i Browne's Civil and Adm. Law, 141. None to any system of 
 laws with which we are acquainted. 
 
 There are two cases in i Rolle's Abr., 515, which show still more dis- 
 tinctly that the president of an association and the state comptroller 
 must be considered each as sole corporations. One is where a presi- 
 dent of a college of physicians recovers, in that character, a penalty 
 against a party for practicing without license. Another is where 
 the master of an hospital recovers, in that character, the arrears of 
 the annuity due to the hospital. On the death of either the interest 
 in the judgment recovered passes to his successor, and not to his ex- 
 ecutor; and simply because the debt thus goes in succession, and
 
 28 EDGE WORTH V. vVoOD. 5 
 
 Toller says they are each a special or sole corporation like the cham- 
 berlain of London before mentioned. Toll, on Ex., ch. 4, 3, p. 
 136, ed. of 1803. See also i Wms. Ex. 546, ed. of 1832. Atkins v. 
 Gardener, Cro. Jac. 159. This matter is very fully illustrated in 2 
 Black. Comm., 431, 2. * * * 
 
 By BRONSON, J. : I concur fully in the opinions expressed by my 
 brethren, that associations formed under the general banking law are 
 corporations, and that the assent of two-thirds of all the members 
 elected to each branch of the legislature was necessary to the passing 
 of the act. But, as at present advised, I can not concur in the 
 opinion that the legislature has the constitutional power, although 
 two-thirds may assent, to provide by a general law for the creation of 
 an indefinite number of corporations at the pleasure of any persons 
 who may associate for that purpose. 
 
 It was conceded on the argument, that the demurrer does not reach 
 the objection that the act was not passed by a two-thirds vote ; and I 
 have not, therefore, considered the question whether we can look be- 
 yond the statute book. A plea may render it necessary for us to pass 
 upon that question. 
 
 Judgment for plaintiff. 
 
 Sec. 5. Tests. (4) But in foreign jurisdictions the powers con- 
 ferred, rather than the legislative declaration, will control. 1 
 
 EDGEWORTH v. WOOD, TREASURER OP THE UNITED STATES EXPRESS 
 
 COMPANY. 
 
 1896. IN THE SUPREME COURT OF NEW JERSEY. 58 New Jer- 
 sey Law (29 Vroom) 463469, 3 Am. & Eng. 
 Corp. Cas. (N. S.) 299, 33 Atl. 940. 
 
 On rule to show cause. 
 
 Argued at November term, 1895, before BEASLEY, chief justice, 
 and Justices MAGIE and LUDLOW. 
 
 The opinion of the court was delivered by MAGIE, J. This is an 
 action in tort in which plaintiff seeks to recover damages for injuries 
 suffered by him by reason of his being run over, in a public street in 
 Jersey City, by a wagon of the United States Express Company, neg- 
 ligently driven by a driver in the employ of that company. The jury 
 having rendered a verdict for plaintiff, this rule to show cause why the 
 verdict should not be set aside was allowed. Several reasons were 
 filed in support of the rule, but only three have been urged in the 
 argument. These only will be considered. 
 
 It is first contended that neither plaintiff's declaration nor the evi- 
 dence produced by him discloses any liability on the part of Theodore 
 F. Wood, treasurer of the United States Express Company, to an- 
 swer for plaintiff's injuries, if inflicted as he claimed. 
 
 1 See note (5) at end of Article I, infra, p. 32.
 
 5 TESTS IN FOREIGN JURISDICTIONS. 29 
 
 Plaintiff claims to have made out his case, in this respect, in the 
 following manner : He produced proof that the United States Ex- 
 press Company was an association organized April 22, 1854, under 
 the laws of New York, and having a principal place of business in 
 the city of New York, and that Thomas C. Platt was its president 
 and Theodore F. Wood its treasurer. He put in evidence chapter 
 238 of the laws of New York for the year 1849, and sections 1919, 
 1924 of the New York code of civil procedure, whereby it appeared 
 that any association thus organized was expressly authorized to sue 
 and to be sued in the name either of its president or its treasurer for 
 the time being. Upon this he contends that he is entitled to an ac- 
 tion against Wood, as treasurer, and as Wood is a resident of New 
 Jersey, and was served with process here, that our courts, by comity, 
 will recognize the liability to suit imposed by the laws of New York. 
 
 In opposition to this, it is contended on the part of defendant 
 that if it be conceded that our courts will, by comity, adopt and en- 
 force remedies against such associations, in the mode prescribed by 
 the law of the state under which they came into existence, yet if the 
 law of this state has furnished a mode of procedure by which reme- 
 dies against such associations may be enforced, the rule of comity 
 ceases and the mode of procedure provided by our laws must be pur- 
 sued. The supplement to the Practice act, approved May 23, 1890 
 (Pamph. L., p. 353; Gen. Stat., p. 2592, 342), is conceived by 
 counsel to have furnished a mode of procedure under which this ac- 
 tion could have been maintained against the United States Express 
 Company. 
 
 By that act it is enacted that any "unincorporated company, stock 
 company or association," consisting of two or more persons united 
 for business purposes and having a recognized name, may be sued by 
 that name in any action affecting the common property or the joint 
 rights and liabilities of such company or association. Provision is 
 made for the service of process and for the issue of an execution upon 
 judgment in the same manner as upon judgments against corporations. 
 If the United States Express Company is an unincorporated associa- 
 tion, within the meaning of the act, it would seem that plaintiff could 
 have brought his action under that act. 
 
 Questions concerning the nature of associations formed under the 
 laws of New York, such as the United States Express Company, 
 have been frequently considered in the courts of that state. The act 
 of 1849 speaks of them as joint-stock companies or associations. By 
 its certificate, this company calls itself a joint-stock company. 
 
 In the earliest case to which my attention has been directed, the 
 question requiring solution was as to the relation between a share- 
 holder and such a company. After an exhaustive review of the New 
 York statutes on the subject, Judge Barnard declared that such com- 
 panies had all the qualities of corporations, except that of having a 
 common seal. His conclusion was that in a controversy between a 
 shareholder and the company, he was not to be considered as a part- 
 ner in a partnership, but the courts must deal with his relation follow-
 
 3O EDGEWORTH V. WOOD. 5 
 
 ing the analogy of the law of corporations. Waterbury v. Merchants' 
 Union Express Co., 50 Barb. 157. 
 
 In a later case, an action was brought by a shareholder in the same 
 company against Fargo, its president, to recover for the loss of articles 
 entrusted to it for transportation. The defense was that the owner of 
 an interest in the company could not maintain such an action against 
 it, which it was claimed was like an action by a partner against the 
 partnership. The action was sustained by the court below. West- 
 cott v. Fargo, President, 6 Lans. 319. Upon appeal, the opinion was 
 delivered by Dwight, one of the commissioners of appeal. Upon a 
 review of the statutes, he declared that the president or treasurer of 
 one of these joint-stock companies or associations was to be regarded, 
 for the purposes of an action against the company, substantially as a 
 corporation sole ; that such companies possessed some powers and 
 privileges of corporations not possessed by individuals or partnerships, 
 and that an action upon a liability of the company might be main- 
 tained by one of its members. Westcott v. Fargo, 61 N. Y. 542. 
 
 Later the United States Express Company, the very company whose 
 officer is here sued, objected to the imposition of a tax upon its cor- 
 porate franchises and business computable upon its capital stock, un- 
 der an act taxing corporations, joint-stock companies and associations 
 incorporated or organized under any law of the state. Its contention 
 was that it was neither so incorporated nor organized. The right to 
 impose the tax was sustained, Judge Danforth saying: "The agree- 
 ment which brought many persons into one artificial body was so 
 framed as to accomplish that end, and in proposing to conduct its af- 
 fairs by the power given to it in the mode prescribed by the legisla- 
 ture, they must be deemed, for the purposes of the act in question, 
 to be incorporated that is, formed or united under the law of the 
 state, whether the artificial body be termed a corporation, a joint-stock 
 company or association." People, ex rel. Platt, v. Wemple, 117 
 N. Y. 136. 
 
 Questions have also arisen respecting the right to remove to the 
 federal courts actions between the president or treasurer of such com- 
 panies and other persons. 
 
 In New York, it was held, in a suit by Fargo as president of such 
 a company organized in New York, that the company was to be con- 
 sidered like a corporation, a citizen of New York, and the action was 
 removable to the United States court, if the other party was a citizen 
 of another state. Fargo v. McVicker, 55 Barb. 437. 
 
 In the United States Circuit Court for the District of Michigan, 
 Judge Brown (now justice of the supreme court) held that such a 
 company formed in New York was to be deemed a citizen of New 
 York without regard to the citizenship of its members. Maltz v. 
 American Express Co., i Flip. 611. 
 
 In another case in the federal courts, the action was brought by 
 Fargo as president of such a company against a citizen of a western 
 state, and Judge Gresham held that such a company was a citizen of 
 New York and could maintain an action in those courts, notwithstand-
 
 5 NOTES TO ARTICLE I. 31 
 
 ing the fact that some of its shareholders were residents of the state 
 in which the defendant resided. Fargo v. L., N. A. & C. Ry. Co., 
 6 Fed. Rep. 787. 
 
 In the case last cited and in some of the other cases, the conclusion 
 reached has not been deemed invalidated by the fact that some of the 
 New York statutes speak of such companies and associations as unin- 
 corporated. 
 
 In Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, the supreme 
 court of the United States held that an English joint stock associa- 
 tion, which was endowed with certain corporate powers, must be con- 
 sidered by our courts to be a corporation, notwithstanding the acts of 
 parliament declared that such associations should not be held to be 
 corporations. 
 
 [Test of Corporate Existence.] Whether an aggregation of indi- 
 viduals united in an artificial body is a corporation or not is to be 
 determined rather by the faculties and powers conferred upon the 
 body than by the name or description given to it. 
 
 Upon this review, I have reached the conclusion that the United 
 States Express Company is a corporate entity, empowered to sue and 
 be sued, not, as is usual, in a corporate name, but in the name of 
 designated officers. To such a corporation the act of 1890 does not 
 apply, and this action was therefore properly brought against Wood 
 as treasurer, whose status in the suit is not that of an individual but 
 of a representative of the company. 
 
 This reason can not, therefore, prevail. 
 
 [Points of opinion relating to sufficiency of evidence are omitted.] 
 
 The rule to show cause should be discharged. 
 
 NOTES TO ARTICLE I. 
 
 1. Definitions: For the authorities favoring one or the other of the defini- 
 tions given above, see notes to Articles II, III and IV, infra, pp. 72, 109, 157. 
 Definitions of corporations will be found in the following cases : 1804, Head v. 
 Providence Ins. Co., 2 Cranch (U. S.) 127, on 167; 1809, Bank of United 
 States v. Deveaux, 5 Cranch (U. S.) 61; 1819, Trustees Dartmouth Col. v. 
 Woodward, 4 Wheaton 518, on 636, 667; 1839, Thomas v. Dakin, 22 Wendell 
 (N. Y.) -9, 70, 104, supra, p. 19; 1840, Warner v. Beers, 23 Wendell (N. Y.) 
 103, 123, 124, supra, p. 2; 1841, People, ex rel. Bank of Watertown, v. Asses- 
 sors, etc., 1 Hill (N. Y.) 616, 620; 1844, Louisville C., etc., R. Co. v. Let- 
 son, 2 Howard (U. S.) 497, 552; 1860, The Ohio Ins. Co. v. Nunemacher, 
 15 Ind. 295; 1861, Ohio and Mississippi R. Co. v. Wheeler, 66 U. S. (1 
 Black) 286, 295; 1672, Railroad Commissioners v. P. & O. C. R. Co., 63 
 Maine 269, 277; 1872, Thompson v. Waters, 25 Mich. 214, 223; 1875, Board 
 of Commrs. Tipp. Co. v. L. M. & B. R., 50 Ind. 85, 108; 1878, State v. M. 
 L. S. & W. R. 'Co., 45 Wis. 579, 592; 1882, Bait. & P. R. Co. v. Fifth Bap- 
 tist Church, 108 U. S. 317, 330; 1890, United States v. Trinidad Coal & C. Co., 
 137 U. S. 160; 1898, Andrews Bros. v. Youngstown Coke Co., 86 Fed. R. 585. 
 
 2. The New York Bank Cases: The second resolution adopted by a vote 
 of 22 to 3, in the case of Warner v. Beers, supra, p. 14, that the associations 
 organized under the banking act of 1838, "are not bodies politic or corporate, 
 within the spirit and meaning of the constitution," did not settle the law that
 
 32 NOTES TO ARTICLE I. 
 
 such associations were not corporations for any purpose, but only that they 
 were not so "within the spirit and meaning" of the constitution. See particu- 
 larly 1841, People v. Assessors of Watertown, 1 Hill (N. Y.) 616, 618; 1845, 
 De Bow v. People, 1 Denio (N. Y.) 9, 14; 1845, Gifford v. Livingston, 2 Denio 
 (N. Y.) 380, 382; 1850, Gillet v. Moody, 3 N. Y. 485. The decisions, generally, 
 after Warner v. Beers, treated these institutions for most purposes as corpo- 
 rations. The cases are : 1840, Parmly v. Tenth Ward Bank, 3 Edw. Ch. 395 ; 
 1840, Delafield v. Kinney, 24 Wend. 345; 1841, People v. Assessors of Water- 
 town, 1 Hill 616; Bank of Watertown v. Assessors of Watertown, 25 Wend. 
 686; 1842, Willoughby v. Comstock, 3 Hill 389; 1842, People v. Supervisors 
 of Niagara, 4 Hill 20; 1843, Leavitt v. Tylee, 1 Sandf. Ch. 207; 1844, Super- 
 visors of Niagara v. People, 7 Hill 504; 1844,Boisegerard v. New York Bank- 
 ing Co., 2 Sandf. Ch. 23; 1844, Matter of Bank of Dansville, 6 Hill 370; 1845, 
 Gifford v. Livingston, 2 Denio 380 (Court for Correction of Errors, overrul- 
 ing 1845, De Bow v. People, 1 Denio 9 (Supreme Court) ; 1843, Leavitt v. 
 Yates, 4 Edw. Ch. 134; 1846, Sagory v. Dubois, 3 Sandf. Ch. 466, 485; 1848, 
 Leavitt v. Blatchford, 5 Barb. 9; 1850, Cuyler v. Sanford, 8 Barb. 225; 1850, 
 Gillet v. Moody, 3 N. Y. (Comst.) 479; 1851, Palmer v. Lawrence, 5 N. Y. 
 (1 Seld.) 389; 1852, Talmage v. Pell, 7 N. Y. (3 Seld.) 328; Tracy v. Talmage, 
 18 Barb. 456; 1855, Gillet v. Phillips, 13 N. Y. (3 Kern.) 114; 1858, Leavitt 
 v. Blatchford, 17 N. Y. 521; 1859, Codd v. Rathbone, 19 N. Y. 37. 
 
 3. The Michigan Discussion: Sec. 2, art. 12, of the constitution of Michi- 
 gan, 1835, provided, "The legislature shall pass no act of incorporation, unless 
 with the assent of at least two-thirds of each house." In 1837 (Sess. L. 1837, 
 p. 76), an "Act to organize and regulate banking associations" was passed. 
 The constitutionality of this act came before the United States circuit court 
 for Michigan for adjudication in 1840, in the case of Falconer v. Campbell, 2 
 McLean C. C. (7th Circuit), 195; Federal Cases, 4620; 10 Myers' Fed. Dec., 
 18, infra p. 287 ; the question as to whether the act had received the required 
 majority was argued, but it was held not properly raised by the demurrer. 
 The court held the law constitutional ; that the associations were corporations, 
 and that an indefinite number might be created, or provided for, by one gen- 
 eral act. In 1844, in the case of Green, receiver of bank of Niles v. Graves, 
 1 Douglass (Mich.) 351, the same points were argued before the supreme 
 court of Michigan, and the law was held unconstitutional, because it attempted 
 to create corporations, and an indefinite number of them at one time ; this, it 
 was held, could not be done, because the constitution meant to require a two- 
 thirds vote in the creation of each and every corporation. This holding has 
 been followed since, in regard to the banking act of 1837, but not extended to 
 other general corporation laws. See 2 Doug. (Mich.) 160, 195; 1 Mich. 119, 
 120, 121, 482, 512; 2 Mich. 287; 5 Mich. 259; 13 Mich. 151 ; 16 Mich. 258, and 
 45 Mich. 510. Also 1849, Nesmith v. Sheldon, 48 U. S. (7 How.) 812. 
 
 4. Later holding's: Many of the same points have been discussed in. the New 
 York courts as to the nature of their joint-stock associations, as were in the 
 bank cases. People v. Coleman, 133 N. Y. 279, supra, p. 15, is the best 
 case. Others are: 1867, Waterbury v. Merchants' Union Express Co., 50 
 Barb. (N. Y.) 157; 1869, Fargo v. McVicker, 55 Barb. 437; 1875, Westcott v. 
 Fargo, 61 N. Y. 542; 1886, Van Aernam v. Bleistein, etc., 102 N. Y. 355 16 
 American and Eng. Corp. Gas. 103; 1889, People, ex rel. Platt, v. Wemple 
 117 N. Y. 136, 29 American and Eng. Corp. Cas. 610; 1892, McCabe v. Good- 
 fellow, 133 N. Y. 89, 37 American and Eng. Corp. Cas. 73. 
 
 5. Note as to the fourth test above given: This is qualified in many of the 
 states by the rule that the decisions of the courts of the state creating the insti- 
 tution in question, as to whether it is a corporation or not, will be deemed 
 controlling. See 1871, Taft v. Ward, 106 Mass. 518; 1880, Eailroad Co. v. Pear- 
 son, 128 Mass. 445; 1883, Gleason v. McKay, 134 Mass. 419, infra, p. 167; 1895 
 Gregg v. Sandford, 12 C. C. A. 525, 65 Fed. Rep. 151, 48 Am. and ^ng. Corp 
 Cas. 292. In Liverpool Insurance Co. v. Massachusetts, 10 Wall. (U S ) 566 
 the supreme court applied the rule given as the fourth test above, and held an
 
 6 THE CORPORATION AS A PERSON. 33 
 
 English insurance company to be a corporation, notwithstanding the act of 
 parliament under which it was created expressly provided it should not be 
 so considered. This holding, however, was not necessary to the decision of 
 the case. But in 1889, Chapman v. Barney, 129 U. S. 677, the sajne court 
 held it would follow the decisions or the statutes of the states in which the 
 institution was organized as to its nature. For further upon this point, see 
 note to Article V, infra, p. 175; 1900, Great Southern F. Hotel Co. v. Jones, 
 
 1 / / U . O. < 'X7. 
 
 ARTICLE 1 1 . THE CORPORATION AS A PERSON. 
 
 Sec. 6. For most purposes a corporation is considered as a per- 
 son having, as such, rights, duties and liabilities. 
 
 "For by incorporation it acquires jus persona, and becomes per- 
 sona politica , and is capable of all civil rights habendi et agendi." 
 
 Per Attorney-General, Quo Warranto, v. London, 3-8 as given in 
 Comyn's Digest, Corporation, under Franchises (F) F. 1. Also, 
 8 Howell's State Trials, p. 1039, on 1155. 
 
 (i) And particularly , having rights: () Under the com- 
 mon law. 
 
 TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA v. FOY 
 AND BISHOP. 1 
 
 1805. IN THE COURT OF CONFERENCE OF NORTH CAROLINA, i 
 Murphy (N. C.) Reports 58-92, 3 American Dec. 672. 
 
 LOCKE, J., delivered the opinion of the court. The legislature of 
 North Carolina, in the year 1789, granted to the trustees of the uni- 
 versity "all the property that has heretofore or shall hereafter escheat 
 to the state." And by another act, passed in the year 1794, they 
 also granted, "the confiscated property then unsold." By an act 
 passed in the year 1800, they declared, "that from and after the pass- 
 ing of this act, all acts and clauses of acts, which have heretofore 
 granted power to the trustees of the University, to seize and possess 
 any escheated or confiscated property, real or personal, shall be and 
 the same is hereby repealed and made void. 
 
 "And be it further enacted, That all escheated or confiscated prop- 
 erty which the said trustees, their agents or attorneys, have not legally 
 sold by virtue of the said laws, shall from hence revert to the state, 
 and henceforth be considered as the property of the same, as though 
 such laws had never been passed." 
 
 1 Statement of facts (except as given in opinion), arguments and dissent- 
 ing opinion of HALL, J., omitted. Also parts of the opinion of the court by 
 LOCKE, J. 
 
 3 WIL. CASES.
 
 34 TRUSTEES V. FOY & BISHOP. 6 
 
 The trustees of the university, in pursuance of the powers vested 
 in them by the act of 1789, have brought this suit to recover the pos- 
 session of a tract of land escheated to the state before the passing of 
 the repealing act in the year 1800. The defendants have pleaded 
 this repealing act in bar, by which they allege the power of the trus- 
 tees to support this action is entirely destroyed. It is therefore now 
 to be considered how far the trustees have title under the act of 1789, 
 and in the next place, how far they are divested of that title by the 
 repealing act of 1800. 
 
 [After holding the act of 1789 passed the title to the trustees, and some re- 
 marks as to the general constitutional provisions, proceeds:] 
 
 Some light will be thrown upon this subject by examining the na- 
 ture of corporations, how property can be taken from them, and how 
 they can be dissolved. Corporations are formed for the advancement 
 of religion, learning, commerce or other beneficial purposes. They 
 are either aggregate or sole, and created by grant or by law. 
 
 [Rights.] When they are once erected, they acquire many rights, 
 powers, capacities and some incapacities, i Black. 475, as (i) to 
 have perpetual succession ; and therefore all aggregate corporations 
 have necessarily the power of electing members in the room of those 
 who die, to sue and be sued and to do all other acts as natural per- 
 sons ; (2) to purchase lands and to hold them for the benefit of 
 themselves and successors; (4) to have a common seal; (5) to 
 make by-laws for the better government of the corporation. These 
 corporations can not commit crimes, although their members may in 
 their individual capacity. The duties of those bodies consist in act- 
 ing up to the design for which they were instituted. Let us next in- 
 quire how their corporate property can be taken from them and how 
 they may be dissolved. A member may be disfranchised or lose his 
 place by his own improper conduct, or he may resign. A corpora- 
 tion may be dissolved by act of parliament, which is boundless in its 
 operation ; by the natural death of all its members, in case of an ag- 
 gregate corporation ; by surrender of its franchises into the hands of 
 the king, which is a kind of suicide ; by forfeiture of its charter 
 through negligence or abuse of its franchises, in which case the law 
 judges the body politic to have broken the condition on which it was 
 incorporated, and therefore the incorporation to be void ; and the reg- 
 ular course is to bring an information in the nature of a quo ivarranto, 
 to inquire by what authority the members now exercise their corpo- 
 rate power, having forfeited it by such and such proceedings, i 
 Black. 485; 3 Black. 263. None of these prerequisites have been 
 done in the present case. 
 
 We are then led to inquire into the soundness of an argument 
 greatly relied on by the defendant's counsel, that those who create 
 can destroy. The legislature have not pretended to dissolve the cor- 
 poration, but to deprive them of a part of the funds that were deemed 
 to be vested in them, and to transfer those funds to the state. In 
 England the king's consent to the creation of any corporation is ab- 
 solutely necessary, either given expressly by charter or by act of par-
 
 6 THE CORPORATION AS A PERSON. 35 
 
 liament, where his assent is a necessary ingredient or implied by 
 prescription, i Black. 472, 473. The king may grant to a subject 
 the power of erecting a corporation ; and yet it is the king that erects, 
 the subject is but the instrument, i Black. 474. Where there is an 
 endowment of lands, the law distinguishes and makes two species of 
 foundation ; the first, foundatio incipiens, or the corporation, in 
 which sense the king is the founder of all colleges and hospitals ; the 
 other, fundatio perficiens, or the dotation of it, in which sense the 
 first gift of the revenues is the foundation, and who gives them is the 
 founder, i Black. 481. The constitution directed the general as- 
 sembly to establish this institution and endow it; then it would seem, 
 from the principle upon which all this doctrine is predicated, that the 
 constitution and not the legislature had erected this corporation, the 
 legislature being only the agent or instrument whose acts are valid 
 and binding when they do not contravene any of the provisions of the 
 constitution. * * * 
 
 But one great and important reason which influences us in deciding 
 this question is the loth section of the bill of rights, which declares 
 "that no freeman ought to be taken, imprisoned or disseized of his 
 freehold, liberties, or privileges, or outlawed, or exiled, or in any 
 manner destroyed or deprived of his life, liberty or property, but by 
 the law of the land." It has been yielded on the part of the defend- 
 ants that if the legislature had vested an individual with the property 
 in question, this section of the bill of rights would restrain them from 
 depriving him of such right ; but it is denied that this section has any 
 operation on corporations whose members are mere naked trustees, 
 and have no interest in the donation, and especially on a corporation 
 erected for a public purpose. It is also insisted that the term, "Law 
 of the Land," does not impose any restrictions on the legislature, 
 who are capable of making the law of the land, and was only in- 
 tended to prevent abuses in the other branches of government. That 
 this clause was intended to secure to corporations as well as to individ- 
 uals the rights therein enumerated, seems clear from the word "lib- 
 erties," which peculiarly signifies those privileges and rights which 
 corporations have by virtue of the instruments which incorporate them, 
 and is certainly used in this clause in contradistinction to the word 
 "liberty," which refers to the personal liberty of the citizen. We 
 therefore infer that by this clause the legislature are as much restrained 
 from affecting the property of corporations, as they are that of a private 
 individual, unless the expression, "Law of the Land," should re- 
 ceive the construction contended for on the part of the defendant. It is 
 evident the framers of the constitution intended the provision as a re- 
 straint upon some branch of the government, either the executive, 
 legislative or judicial. To suppose it applicable to the executive 
 would be absurd on account of the limited powers conferred on that 
 officer; and from the subjects enumerated in that clause no danger 
 could be apprehended from the executive department, that being en- 
 trusted with the exercise of no powers by which the principles thereby 
 intended to be secured could be affected. To apply it to the judi-
 
 36 COUNTY OF SAN MATEO V. SOUTHERN PACIFIC R. CO. 7 
 
 ciary would, if possible, be still more idle, if the legislature can make 
 the "Law of the Land." For the judiciary are only to expound and 
 enforce the law and have no discretionary powers enabling them to 
 judge of the propriety or impropriety of laws. They are bound, 
 whether agreeable to their ideas of justice or not, to carry into effect 
 the acts of the legislature as far as they are binding or do not contra- 
 vene the constitution. If then this clause is applicable to the legisla- 
 ture alone, and was intended as a restraint on their acts (and to pre- 
 sume otherwise is to render this article a dead letter), let us next in- 
 quire, what will be the operation which this clause will or ought 
 to have on the present question ? It seems to us to warrant a 
 belief that members of a corporation, as well as individuals, shall not 
 be so deprived of their liberties or property, unless by a trial by jury 
 in a court of justice, according to the known and established rules of 
 decision, derived from the common law, and such acts of the legisla- 
 ture as are consistent with the constitution and although the trustees 
 are a corporation established for public purposes, yet their property is 
 as completely beyond the control of the legislature as the property of 
 individuals or that of any other corporation. Indeed, it seems diffi- 
 cult to conceive of a corporation established for merely private pur- 
 poses. In every institution of that kind, the ground of the establish- 
 ment is some public good or purpose intended to be promoted ; but in 
 many, the members thereof have a private interest, coupled with the 
 public object. In this case the trustees have no private interest be- 
 yond the general good ; yet we conceive that circumstance will not 
 make the property of the trustees subject to the arbitrary will of the 
 legislature. The property vested in the trustees must remain for the 
 uses intended for the university, until the judiciary of the country, in 
 the usual and common form, pronounce them guilty of such acts, as 
 will, in law, amount to a forfeiture of their rights or a dissolution of 
 their body. The demurrer must therefore be allowed, and the plea 
 in bar overruled. 
 
 [Note. It should be remembered this case was decided before the case of 
 Trustees of Dartmouth College v. Woodward, 4 Wheat. (U.S.) 518, infra, p. 708. ] 
 Note. The rights of corporations is the subject of chapter 12, infra, p. 914. 
 
 Sec. 7. Same. () Under the United States constitution. 
 
 THE RAILROAD TAX CASES. 
 COUNTY OF SAN MATEO v. SOUTHERN PACIFIC R. CO. 1 
 
 1882. IN UNITED STATES CIRCUIT COURT, District of California. 
 13 Federal Reporter 722-782, with note 782-789. 
 
 [Action to recover taxes and penalty of the Southern Pacific Rail- 
 road Company, a corporation formed under the laws of California. 
 
 1 Case taken to supreme court of the United States ; settled and disposed of, 
 116 U. S. 138. See, also, Santa Clara County v. Southern. Pacific R. Co., 118 
 U. S. 394, on 396. Statement of facts condensed. Only so much of the opin- 
 ions as bears directly on the rights of corporations under the 14th amendment 
 of the United States constitution is given.
 
 7 THE CORPORATION AS A PERSON. 37 
 
 By the California constitution all property, with certain exceptions, is 
 to be taxed according to its value ; but in ascertaining the value of 
 property owned by individuals the amount unpaid of any mortgage 
 upon it is to be deducted from the assessed value, and the tax levied 
 on the balance, as against the owner. "The franchise, roadway, road- 
 bed, rails and rolling stock of all railroads operated in more than one 
 county," are to be assessed at their actual value and apportioned to 
 the various municipal subdivisions in proportion to mileage, without 
 any deductions for any mortgages on the property. Also, the statutes 
 provide for notice and hearing by the parties affected before the as- 
 sessment is complete, in all cases except railroads operated in more 
 than one county. 
 
 The railroal company contended : (i) That the assessment, because 
 no deductions for mortgages were allowed, as in other cases, had the 
 effect of denying it the equal protection of the laws guaranteed by the 
 I4th amendment of the United States constitution. (2) Also, that 
 the fact that no notice was provided for, deprived it of its property 
 without due process of law, contrary to the same amendment. 
 
 The county contended: (i) That the state's authority to tax is un- 
 limited except by the United States constitution. (2) That the United 
 States constitution did not forbid the classification of property for tax- 
 ation. (3) That the I4th amendment did not apply. (4) That cor- 
 porations were not persons within the meaning of the amendment. 
 (5) That the statute requiring a statement of property by the railroad 
 company was sufficient notice; and (6), that the provisions relative 
 to taxation of railroads are to be treated as conditions upon the con- 
 tinued existence of the corporations.] 
 
 FIELD, J. * * * The fourteenth amendment of the constitu- 
 tion, in declaring that no state shall deny to any person within its 
 jurisdiction the equal protection of the laws, imposes a limitation upon 
 the exercise of all the powers of the state which can touch the indi- 
 vidual or his property, including among them that of taxation. What 
 ever the state may do, it can not deprive any one within its jurisdic- 
 tion of the equal protection of the laws. And by equal protection of 
 the laws is meant equal security under them to every one on similar 
 terms in his life, his liberty, his property, and in the pursuit of 
 happiness. It not only implies the right of each to resort, on the same 
 terms with others, to the courts of the country for the security of his 
 person and property, the prevention and redress of wrongs and the 
 enforcement of contracts, but also his exemption from any greater 
 burdens or charges than such as are equally imposed upon all others 
 under like circumstances. 
 
 Unequal exactions in every form, or under any pretense, are abso- 
 lutely forbidden; and, of course, unequal taxation, for it is in that 
 form that oppressive burdens are usually laid. It is not possible to 
 conceive equal protection under any system of laws where arbitrary 
 and unequal taxation is permissible ; where different persons may be 
 taxed on their property of the same kind, similarly situated, at differ- 
 ent rates ; where, for instance, one may be taxed at r per cent, on the 
 value of his property, another at 2 or 5 per cent., or where one may be 
 thus taxed according to his color, because he is white, or black, or
 
 38 COUNTY OF SAN MATEO V. SOUTHERN PACIFIC R. CO. 7 
 
 brown, or yellow, or according to any other rule than that of a fixed 
 rate proportionate to the value of his property. * * * 
 
 If we may now look at the scheme of taxation prescribed by the 
 constitution of California for the property of railroad companies, we 
 shall perceive a flagrant departure from the rule of equality and uni- 
 formity so essential to equality in the distribution of the burdens of 
 government. Whenever an individual holds property incumbered 
 with a mortgage he is assessed at its value, after deducting from it 
 the amount of the mortgage. If a railroad company holds property 
 subject to a mortgage, it is assessed at its full value, without any 
 deduction for the mortgage ; that is, as though the property were un- 
 incumbered. The inequality and discriminating character of the pro- 
 cedure will be apparent by an illustration given by counsel. Suppose 
 a private person owns a farm which is valued at $100,000, and is in- 
 cumbered with a mortgage amounting to $80,000 ; he is, in that case, 
 assessed at $20,000; if the rate of taxation be 2 per cent., he would 
 pay $400 taxes. If a railroad corporation owns an adjoining tract 
 worth $100,000, which is also incumbered by a mortgage for $80,000, 
 it would be assessed for $100,000, and be required to pay $2,000 
 taxes, or five times as much as the private person. There is here a 
 discrimination too palpable and gross to be questioned, and such is 
 the nature of the discrimination made against the Southern Pacific 
 Railroad Company in the taxation of its property. Nothing can be 
 clearer than that the rule of equality and uniformity is thus entirely 
 disregarded. * * * 
 
 Is the defendant, being a corporation, a person within the meaning 
 of the fourteenth amendment, so as to be entitled, with respect to its 
 property, to the equal protection of the laws? The learned counsel 
 of the plaintiff and the attorney-general of the state take the negative 
 of this question, and assert with much earnestness that the amendment 
 applies, and was intended to apply, only to the newly-made citizens 
 of the African race, and should be limited to their protection. * * * 
 
 In the Dartmouth College case it was urged that the charter of the 
 college was not a contract contemplated by the constitution, because 
 no valuable consideration passed to the king as an equivalent for the 
 grant, and that contracts merely voluntary were not within the prohi- 
 bition. But Chief Justice Marshall, after showing that the charter was 
 a contract upon a valuable consideration, said: 
 
 "It is more than possible that the preservation of rights of this de- 
 scription was not particularly in view of the framers of the constitu- 
 tion when the clause under consideration was introduced into that in- 
 strument. It is probable that interferences of more frequent recur- 
 rence, to which the temptation was stronger and of which the mischief 
 was more extensive, constituted the great motive for imposing this re- 
 striction on the state legislatures. But although a particular and a 
 rare case may not, in itself, be of sufficient magnitude to induce a rule, 
 yet it must be governed by the rule when established, unless some 
 plain and strong reason for excluding it can be given." And again, 
 "the case being within the words of the rule must be within its opera- 
 tion likewise, unless there be something in the literal construction so 
 obviously absurd or mischievous, or repugnant to the general spirit of
 
 7 THE CORPORATION AS A PERSON. 39 
 
 the instrument, as to justify those who expound the constitution in 
 making it an exception." 4 Wheat. 644. 
 
 Following that authority, we can not adopt the narrow view for 
 which counsel contend, and limit the application of the prohibition 
 of the fourteenth amendment to legislation touching members of the 
 enfranchised race. It has a much broader operation. It does not, 
 indeed, place any limit upon the subjects, in reference to which the 
 states may legislate. It does not interfere with their police power. 
 Upon every matter upon which previously to its adoption they could 
 act, they may still act. They can legislate now, as they always could, 
 to promote the health, good order and peace of the community; to 
 develop their resources, increase their industries and advance their 
 prosperity ; but it does require that in all such legislation hostile and 
 partial discrimination against any class or person shall be avoided ; 
 that the state shall impose no greater burdens upon anyone than upon 
 others of the community under like circumstances, nor deprive any- 
 one of rights which others similarly situated are allowed to enjoy. It 
 forbids the state to lay its hand more heavily upon one than upon an- 
 other, under like conditions. It stands in the constitution as a per- 
 petual shield against all unequal and partial legislation by the states, 
 and the injustice which follows from it, whether directed against the 
 most humble or the most powerful ; against the despised laborer from 
 China, or the envied master of millions. * * * 
 
 Private corporations are, it is true, artificial persons, but, with the 
 exception of a sole corporation, with which we are not concerned, 
 they consist of aggregations of individuals united for some legitimate 
 business. In this state they are formed under the general laws; and 
 the civil code provides that they "may be formed for any purpose for 
 which individuals may lawfully associate themselves." Any five or 
 more persons may by voluntary association form themselves into a cor- 
 poration. And, as a matter of fact, nearly all enterprises in this state 
 requiring for their execution an expenditure of large capital are un- 
 dertaken by corporations. They engage in commerce ; they build 
 and sail ships ; they cover our navigable streams with steamers ; they 
 construct houses ; they bring the products of earth and sea to market ; 
 they light our streets and buildings ; they open and work mines ; they 
 carry water into our cities ; they build railroads, and cross mountains 
 and deserts with them ; they erect churches, colleges, lyceunas and 
 theaters ; they set up manufactories, and keep the spindle and shuttle 
 in motion ; they establish banks for savings ; they insure against acci- 
 dents on land and sea ; they give policies on life ; they make money 
 exchanges with all parts of the world ; they publish newspapers and 
 books, and send news by lightning across the continent and under the 
 ocean. Indeed, there is nothing which is lawful to be done to feed 
 and clothe our people, to beautify and adorn their dwellings, to re- 
 lieve the sick, to help the needy and to enrich and ennoble humanity, 
 which is not to a great extent done through the instrumentalities of 
 corporations. There are over 500 corporations in this state ; there
 
 4O COUNTY OF SAN MATEO V. SOUTHERN PACIFIC R. CO. / 
 
 are 30,000 in the United States, and the aggregate value of their prop- 
 erty is several thousand millions. ' 
 
 It would be a most singular result if a constitutional provision, in- 
 tended for the protection of every person against partial and discrimi- 
 nating legislation by the states, should cease to exert such protection 
 the moment the person becomes a member of a corporation. We 
 can not accept such a conclusion. On the contrary, we think that it 
 is well established by numerous adjudications of the supreme court of 
 the United States and of the several states, that 'whenever a pro-vision 
 of the constitution, or of a lau>, guarantees to persons the enjoyment of 
 property, or affords to them means for its protection, or prohibits 
 legislation injuriously affecting it, the benefits of the provision ex- 
 tend to corporations, and that the courts will always look beyond the 
 name of the artificial being to the individuals ivhom it represents. 
 
 The case of the Society for the Propagation of the Gospel in For- 
 eign Parts v. Town of New Haven, 8 Wheat. 464, furnishes an apt 
 illustration of this doctrine. The sixth article of the treaty of peace 
 with Great Britain of 1783, provided that there should be "no future 
 confiscations made, nor any prosecutions commenced, against any per- 
 son or persons for or by reason of the part which he or they may have 
 taken in the present war, and that no person shall on that account 
 suffer any future loss or damage, either in his person, liberty or prop- 
 erty." An English corporation claimed the benefit of this article 
 with reference to certain lands in Vermont granted to it befoi'e the 
 revolution, which the legislature of that state had undertaken to give 
 to the town where they were situated. It was contended that the 
 treaty only applied to natural persons ; that it did not embrace corpo- 
 rations, because they were not persons who could take part in the war, 
 or could be considered British subjects ; but the position was held to 
 be untenable. The court, speaking through Mr. Justice Washington, 
 said that the argument proceeded upon an incorrect view of the sub- 
 ject, and referred to the case of United States v. Deveaux, 5 Cranch 
 86, to show that the court, when necessary, will look beyond the 
 name of a corporation to reach and protect those whom it represents. 
 
 The constitution, in defining the judicial power of the United 
 States, declares that it shall extend to "controversies between citizens 
 of different states;" and in the case referred to by Mr. Justice Wash- 
 ington, the question arose whether a corporation composed of citizens 
 of one state could sue, in the circuit court of the United States, a citi- 
 zen of another state, and it was held that it could. In deciding the 
 question, the court, speaking through Chief -Justice Marshall, said: 
 
 "However true the fact may be that the tribunals of the state will 
 administer justice as impartially as those of the nation to parties of 
 every description, it is not less true that the constitution itself either 
 entertains apprehension on this subject, or views with such indulgence 
 the possible fears and apprehensions of suitors, that it has established 
 national tribunals for the decision of controversies between aliens and 
 
 number of corporations here stated is much less than the number 
 actually existing. There are over 5,000 corporations in California alone.
 
 7 THE CORPORATION AS A PERSON. 41 
 
 citizens, or between citizens of different states. Aliens or citizens of 
 different states are not less susceptible of these apprehensions, nor 
 can they be supposed to be less the objects of constitutional provision 
 because they were allowed to sue by a corporate name. That name, 
 indeed, can not be an alien or a citizen, but the persons whom it rep- 
 resents may be the one or the other, and the controversy is, in fact 
 and in law, between those persons suing in their corporate character, 
 by their corporate names, for a corporate right, and the individual 
 against whom the suit may be instituted. Substantially and essentially 
 the parties in such a case, where the members of the corporation are 
 aliens or citizens of a different state from the opposite party, come 
 within the spirit and terms of the jurisdiction conferred by the con- 
 stitution of the national tribunals. Such has been the universal un- 
 derstanding on the subject. Repeatedly has this court decided causes 
 between a corporation and an individual without feeling a doubt re- 
 specting its jurisdiction." 
 
 The same point was presented in another form in the case of Mar- 
 shall v. Baltimore & O. R. Co., 16 How. 326. There the question 
 was whether a citizen of one state could sue in the circuit court of the 
 United States a corporation of another state, and a similar conclusion 
 was reached. After referring to the clause of the constitution extend- 
 ing the judicial power of the United States to controversies between 
 citizens of different states, the court proceeded to consider the objec- 
 tions urged to treating a corporation as a citizen, so far as it might be 
 necessary to protect the corporators. 
 
 "A corporation," observed Mr. Justice Grier, speaking for the 
 court, "it is said is an artificial person, a mere legal entity, invisible 
 and intangible. This is no doubt metaphysically true in a certain 
 sense. The inference, also, that such an artificial entity 'can not be a 
 citizen' is a logical conclusion from the premises, which can not be 
 denied. But a citizen who has made a contract and has a contro- 
 versy with a corporation may also say, with equal truth, that he did 
 not deal with a mere metaphysical abstraction, but with natural per- 
 sons ; that his writ has not been served on an imaginary entity, but on 
 men and citizens, and that his contract was made with them as the 
 legal representatives of numerous unknown associates, or secret and 
 dormant partners. 
 
 "The necessities and conveniences of trade and business require 
 that such numerous associates and stockholders should act by repre- 
 sentation, and have the faculty of contracting, suing and being sued 
 in a fictitious or collective name. But these important faculties, con- 
 ferred on them by state legislation, for their own convenience, can 
 not be wielded to deprive others of acknowledged rights. It is not 
 reasonable that those who deal with such persons should be deprived 
 of a valuable privilege by a syllogism, or rather sophism, which deals 
 subtly with words and names, without regard to the things or persons 
 they are used to represent." 
 
 The fifth amendment to the constitution declares that 
 
 "No person shall be held to answer for a capital or otherwise infa-
 
 42 COUNTY OF SAN MATEO V. SOUTHERN PACIFIC R. CO. 7 
 
 mous crime, unless on a presentment or indictment of a grand jury, 
 except in cases arising in the land or naval forces, or in the militia, 
 when in actual service in time of war or public danger; nor shall any 
 person be subject for the same offense to be put twice in jeopardy of 
 life or limb ; nor shall be compelled in any criminal case to be a wit- 
 ness against himself, nor be deprived of life, liberty or property with- 
 out due process of law; nor shall private property be taken for public 
 use without just compensation." 
 
 From the nature of the prohibitions in this amendment it would 
 seem, with the exception of the last one, as though they could apply 
 only to natural persons. No others can be witnesses ; no others can 
 be twice put in jeopardy of life or limb, or be compelled to be wit- 
 nesses against themselves ; and, therefore, it might be said with much 
 force, that the word "person" there used in connection with the pro- 
 hibition against the deprivation of life, liberty and property without 
 due process or law, is in like manner limited to a natural person. But 
 such has not been the construction of the courts. A similar provision 
 is found in nearly all of the state constitutions; and everywhere, at all 
 times and in all courts, it has been held, either by tacit assent or ex- 
 press adjudication, to extend, so far as their property is concerned, to 
 corporations. And this has been because the property of a corpora- 
 tion is in fact the property of the corporators. To deprive the cor- 
 poration of its property, or to burden it, is in fact to deprive the 
 corporators of their property or to lessen its value. Their interest, 
 undivided though it be, and constituting only a right during the con- 
 tinuance of the corporation to participate in its dividends, and on its 
 dissolution to receive a proportionate share of its assets, has an ap- 
 preciable value, and is property in a commercial sense, and whatever 
 affects the property of the corporation necessarily affects the com- 
 mercial value of their interests. If, for example, to take the illustra- 
 tion given by counsel, a corporation created for banking purposes 
 acquires land, notes, stocks, bonds and money, no stockholder can 
 claim that he owns any particular item of this property, but he owns 
 an interest in the whole of it, which the courts will protect against un- 
 lawful seizure or appropriation by others, and on the dissolution of 
 the company he will receive a proportionate share of its assets. Now, 
 if a statute of the state takes the entire property, who suffers loss by 
 the legislation? Whose property is taken? Certainly, the corpora- 
 tion is deprived of its property; but at the same time, in every just 
 sense of the constitutional guaranty, corporators are also deprived of 
 their property. 
 
 The prohibition against the deprivation of life and liberty in the 
 same clause of the fifth amendment does not apply to corporations, 
 because, as stated by counsel, the lives and liberties of the indi- 
 vidual corporators are not the life and liberty of the corporation. 
 
 Nor do all the privileges and immunities of citizenship attach to 
 corporations. These bodies have never been considered citizens for 
 any other purpose than the protection of the property rights of the 
 corporators. The status of citizenship, entitling the citizen to certain
 
 7 THE CORPORATION AS A PERSON. 43 
 
 privileges and immunities in the several states, does not belong to cor- 
 porations. The special privileges which citizens acquire by becom- 
 ing incorporated in one state can not, therefore, be exercised in an- 
 other state without the latter's consent, as was held in Paul v. Vir- 
 ginia, 8 Wall. 168, although such consent will generally be presumed 
 in the absence of positive prohibition. 
 
 . Decisions of state courts, in harmony with the views we have ex- 
 pressed, exist in great numbers. But it is unnecessary to cite them. 
 It is sufficient to add that in all text writers, in all codes, and in all 
 revised statutes, it is laid down that the term "person" includes, or 
 may include, corporations; which amounts to what we have already 
 said, that whenever it is necessary for the protection of contract or 
 property rights, the courts will look through the ideal entity and name 
 of the corporation to the persons who compose it, and protect them, 
 though the process be in its name. All the guaranties and safe- 
 guards of the constitution for the protection of the property possessed 
 by individuals may, therefore, be invoked for the protection of the 
 property of corporations. And as no discriminating and partial 
 legislation, imposing unequal burdens upon the property of indi- 
 viduals, would be valid under the fourteenth amendment, so no leg- 
 islation imposing suck unequal burdens upon the property of corpo- 
 rations can be maintained. The taxation, therefore, of the property 
 of the defendant upon an assessment of its value, without a deduction 
 of the mortage thereon, is to that extent invalid. 
 
 [The remainder of the opinion of Justice Field, holding that notice was ab- 
 solutely essential, and that the constitutional provisions relating to taxation 
 were not conditions as to the continued existence of the corporations, is 
 omitted.] 
 
 We are satisfied that the assessment upon which they were levied 
 is invalid and void, and judgment must be accordingly entered on the 
 demurrer for the defendant, and, by stipulation of parties, the judg- 
 ment must be made final. 
 
 SAWYER, C. J. , concurring. The facts of this case are fully 
 stated by Mr. Justice Field, and need not be repeated here. The 
 questions presented are of the gravest character, and of the utmost 
 importance to the people of California. While I concur, generally, 
 in the conclusions and in the line of argument adopted by my associ- 
 ate, I shall also state as briefly as I reasonably can, considering the 
 gravity of the questions discussed, my conclusions upon the points in- 
 volved. 
 
 i. In my judgment, the word "person" in the clause of the four- 
 teenth amendment to the national constitution, "No state shall * 
 deprive any person of life, liberty or property without due process of 
 law, nor deny to any person the equal protection of the law," includes 
 a private corporation. It must, at least, through the corporation, in- 
 clude the natural persons who compose the corporation, and who are 
 the beneficial owners of all the property, the technical and legal title 
 to which is in the corporation in trust for the corporators. The fact 
 that the corporators are united into an ideal legal entity, called a cor-
 
 44 THE STATE V. THE N. E. RAILROAD CO. 8 
 
 poration, does not prevent them from having a right of property in 
 the assets of the corporation which is entitled to the protection of this 
 clause of the constitution. Nor does the intervention of this artificial 
 being between the real beneficial owners and the state, for the simple 
 purpose of convenient management of the business, enable the state, 
 by acting directly upon the legal entity, to deprive the real parties 
 beneficially interested, of the protection of these important provisions. 
 In the language of Mr. Pomeroy, one of the counsel, which I adopt: 
 "Whatever be the legal nature of a corporation as an artificial, 
 metaphysical being, separate and distinct from the individual mem- 
 bers, and whatever distinctions the common law makes in carrying out 
 the technical legal conception between property of the corporation 
 and that of the individual members, still, in applying the fundamental 
 guaranties of the constitution, and in thus protecting the rights of 
 property, these metaphysical and technical notions must give way to 
 the reality. The truth can not be evaded that, for the purpose of 
 protecting rights, the property of all business and trading corporations 
 is the property of the individual corporators. A state act depriving a 
 business corporation of its property without due process of law does, 
 in fact, deprive the individual corporators of their property. In this 
 sense, and within the scope of these grand safeguards of private rights, 
 there is no real distinction between artificial persons, or corporations, 
 and natural persons." 
 
 [Remainder of opinion of Sawyer, J., omitted.] 
 
 Note. The rights of corporations is the subject of chapter 12, infra, p. 914. 
 See also numbers 10, 18 and 21, in note to Crafford v. Board of Supervis- 
 ors, etc., 87 Va. 110, infra, pp. 56-57, 10. 
 
 Sec. 8. Same. (2) And subject to duties: (a) Of a public nature. 
 THE STATE, Ex RBL. BLAKE ET AL., v. THE N. E. RAILROAD CO. 1 
 
 1856. IN THE COURT OF APPEALS OF SOUTH CAROLINA. 9 Rich- 
 ardson (S. C.) Law 247-254, 67 American Dec. 551. 
 
 [Rule against the railroad company to show cause why mandamus 
 should not issue commanding the removal of obstructions placed in 
 New Market and Vardell creeks, alleged to be navigable, and pro- 
 vide proper viaducts or use steamboats for crossing water-courses, so 
 as not to obstruct navigation, as required by the charter of the com- 
 pany.] 
 
 Report by GLOVER, J. [who, after holding the streams were navi- 
 gable, proceeded] : 
 
 The last inquiry suggested by the answer of the respondents is, 
 
 1 Part of report of Glover, J. , and arguments, omitted.
 
 8 THE CORPORATION AS A PERSON. 45 
 
 whether a writ of mandamus is the proper remedy. The removal 
 and abatement of a public nuisance is generally effected by indict- 
 ment, which affords, in most cases, an ample and a satisfactory rem- 
 edy ; but it does not follow that a mandamus will not be issued where 
 an indictment may be sustained. The cases referred to in the argu- 
 ment show that the remedy by mandamus has been adopted to compel 
 a corporation to do its duty to the public and to individuals.' In its 
 form, the writ commands the performance of some act or duty therein 
 specified, the execution of which is consonant to right and justice. 
 (3 Steph. Com. 68 1.) Although railways have become important 
 for public travel and transportation, yet they are private corporations, 
 enjoying large privileges, and should strictly comply with the pro- 
 visions of their charters. The public is interested in their successful 
 operation, and their usefulness should not be impaired by any unneces- 
 sary restraints ; but they must not be permitted to abuse the powers 
 granted, and should be held to a strict performance of the duties en- 
 joined. If the nuisance be abated by a removal of the track of the 
 road or the piles which sustain it, the public would suffer in the tem- 
 porary delay in destroying the connection. Whereas, the remedy by 
 mandamus does not destroy the road or delay its operations, but com- 
 mands the company to fulfill its duty to the public by pursuing the 
 directions prescribed by their charter for crossing rivers and water- 
 courses. 
 
 The remedy by mandamus has been often used in England, in 
 cases not unlike the present. The Eastern Counties Railway Com- 
 pany obtained an act of Parliament for making a railway from Lon- 
 don to Norwich and Yarmouth, and it appearing doubtful if the com- 
 pany intended to extend their road to the points indicated, a manda- 
 mus was issued calling upon them to complete the whole line of road 
 pursuant to the provisions of the act. (Reg. v. Eastern Counties 
 Railway Company, i vol. Railway and Canal Cases.) Lord Den- 
 man, C. J., delivering the judgment of the court, says: "This inter- 
 ference is occasioned by inferior courts or persons refusing to proceed 
 in some course prescribed by law, and not in consequence of any mis- 
 apprehension or error in their course, provided they have entered 
 upon it. And accordingly, if it had appeared that the company were 
 substantially complying with the terms of their undertaking, there would 
 have been at once a satisfactory answer to that application." The 
 writ, in this case, was issued at the instance of stockholders ; but it 
 has also been granted to command a railway company to increase the 
 height of a bridge erected by them over a public carriage road, accord- 
 ing to the provisions of their act of Parliament. (Tapp. on Man. 
 243.) The remedy by mandamus will embarrass the company less in 
 the progress, completion or use of their road than an indictment to 
 abate and remove the obstructions complained of. The result of an 
 indictment would be the punishment of the company by fine, and this 
 might not afford to the public the relief which is sought, to which 
 they are entitled, and which the railroad company are required by the 
 provisions of their charter to afford. It is no objection to this mode
 
 46 THE STATE V. THE N. E. RAILROAD CO. 8 
 
 of relief, that the relators have another remedy, especially when that 
 remedy is not so convenient, complete and beneficial. (Tapp. on 
 Man. 24.) 
 
 "It is, therefore, ordered that a writ of mandamus issue." * * * 
 
 The defendants appealed, and moved this court to set aside the 
 order granting the mandamus, on the ground, inter alia. 
 
 3. That if the respondents have committed a nuisance, mandamus 
 is not the proper remedy. * * * 
 
 The opinion of the court was delivered by 
 
 GLOVER, J. The appellants have abandoned all the grounds in 
 support of their motion, except the third, which submits that if they 
 have committed a nuisance mandamus is not the proper remedy. 
 
 It is not necessary for the decision of this question to trace the writ 
 of mandamus from its first institution to the present time, and to in- 
 quire how far it has been enlarged as a remedial process to advance 
 justice and right. Its earliest application seems to have been sug- 
 gested in aid of that clause of Magna Charta, which declares that 
 "Nulli negabimus aut differemus justiciam vel rectum " (10 Mod. 
 48). There never has been any disposition to abridge the use of the 
 writ of mandamus in cases where it is applicable as a remedy either 
 by the action of the courts or by the legislature. 
 
 The general doctrine so earnestly insisted on by the appellant's 
 counsel, that where there is a specific legal remedy the writ will not 
 be granted, or, if granted, will be quashed, is fully sustained by rea- 
 son, and by the authorities to which the court has been referred. But 
 this general rule has been restricted to cases where the specific legal 
 remedy is equally convenient, complete and beneficial. 
 
 The writ of mandamus has always been regarded as an appropriate 
 remedy to enforce the performance of duties by artificial bodies. In 
 the case of the King v. The Bishop of Chester (i T. R. 396), Bul- 
 ler, J. , says: "It is peculiarly the duty of this court to see that the 
 powers created by the king's charter are properly exercised." How 
 far an indictment is a specific remedy, was considered in the case of 
 The King v. The Commissioners of Dean Inclosure, 2 M. & Sel. 80. 
 The commissioners had neglected to obey an order of the sessions di- 
 recting them to set out a road as a public road, and it was held that 
 indictment would not be a specific remedy, that is, such as the case 
 demands, for it was a proceeding in poenam for the past, and not a 
 remedy for the future. It is admitted that if indictment be equally 
 convenient, beneficial and effectual, and such as the particular case 
 demands, the court will not grant the mandamus. King v. Severn 
 and Wye Railway Company, 2 Barn. & Al. 646. This is not the or- 
 dinary case of an obstruction placed in a highway which maybe abated 
 as a nuisance by indictment ; but the obstruction of a highway by a 
 railway, and in the free use of both, the public interest is involved. 
 It is therefore important that in the application of a remedy, public 
 travel and transportation should not be stopped or checked, either on the 
 highway or railway. "It ought to be the concern of a court of justice 
 to take care that whilst they are granting a remedy to one, they do not at
 
 9 THE CORPORATION AS A PERSON. 47 
 
 the same time expose others to great inconveniences, and likewise that 
 the remedy be such as may prove effectual." (10 Mod. 48.) The 
 relators do not require that the railway shall be destroyed, but that 
 the corporation shall exercise the powers granted in the manner pre- 
 scribed by their charter not that they shall be punished by fine or 
 otherwise, but that they shall do their duty to the public. This is a 
 reasonable request, and can not be enforced by indictment without 
 exposing the railway company to great inconvenience, and in the end 
 it would not prove such a remedy as the case demands. Corporate 
 bodies must be compelled in the performance of their duties to dis- 
 charge their public obligations. 
 
 This court is of opinion that a writ of mandamus is an appropriate 
 remedy to compel the defendants in crossing "rivers or other water- 
 courses," to pursue the mode prescribed by their charter. The other 
 grounds having been abandoned, the court has not considered the 
 questions which they suggest. Since the writ of mandamus was 
 granted an act has been passed by the general assembly, and has been 
 brought to the notice of the court, which declares, "that the existing 
 structure of said railway at the points of intersection of said road with 
 the creeks known as New Market and Vardell's creeks, is hereby de- 
 clared to be lawful, and the said company is hereby authorized to cross 
 said creeks without drawbridges or other provision for the navigation 
 of the same." This enactment necessarily supersedes the writ. It is 
 therefore ordered, that the motion be dismissed, and that all further 
 proceedings on the writ be restrained. 
 
 O'Neall, Wardlaw, Withers, Whitner and Munroe, JJ., con- 
 curred. 
 
 Motion dismissed. 
 
 [See note, p. 55. 
 
 Note. The duties and liabilities of corporations will be the subject of later 
 chapters. See infra, chs. 13-17, pp. 914-1766. 
 
 Sec. 9. Same. (#) And of a private nature. 
 
 RIDDLE v. THE PROPRIETORS, ETC., ON MERRIMAC RIVER. 1 
 
 1810. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 7 
 Mass. Reports 169, 5 American Dec. 35. 
 
 [Action on the case against the proprietors of a canal who were 
 bound by their incorporation to construct their canal deep and wide 
 enough for rafts of a specific size to pass through when the river be- 
 low was navigable for craft of the same size. The proprietors neg- 
 ligently permitted the canal to become out of repair to such an extent 
 that the plaintiff in attempting to transport a raft of the proper size, 
 after paying the toll exacted, was unable to do so, and after his raft 
 grounded he returned home for the purpose of waiting until there 
 
 1 Statement of facts condensed. Arguments and parts of the opinion omitted.
 
 48 RIDDLE V. THE PROPRIETORS. 9 
 
 should be enough water to move the raft; while he was away a storm 
 occurred, which occasioned the loss of a quantity of wood, a part of 
 the raft, and the value of which the jury was directed to include in 
 the damages.] 
 
 PARSONS, C. J. [After a brief recital of the declaration.] The 
 cause was tried on the general issue, and a verdict was found for the 
 plaintiff agreeably to the judge's direction. 
 
 The defendants have moved for a new trial for the misdirection of 
 the judge in a matter of law, and they have also moved in arrest of 
 judgment for the insufficiency of the declaration. 
 
 [After holding that none of the objections to the verdict could prevail, the 
 judge proceeded] : 
 
 We now come to the motion in arrest of judgment, which has been 
 made on two grounds. 
 
 The first is, that it is not the duty of the defendants to keep the 
 canal in repair, sufficient for the passage of rafts and boats of the de- 
 scription mentioned in the declaration. This ground is endeavored to 
 be maintained on the supposition that the powers granted to the cor- 
 poration were a privilege, which might be waived or exercised at its 
 discretion. But we think this supposition is not correct. When the 
 act of incorporation first passed, it was optional with the proprietors 
 whether they would or would not take the benefit of it, but after they 
 had made their election by executing the powers granted, and claim- 
 ing the toll, then the duties imposed by the tenth section, to make the 
 canals, etc., attached, from which they can not be discharged, but by 
 a seizure of the franchise into the hands of the government, or by a 
 repeal of the act with their assent. 
 
 But further to maintain this ground, the defendants have argued 
 that, from the plaintiff's own showing, it is not the duty of the corpo- 
 ration to keep this canal in repair. By the statutes relating to this 
 subject, if the corporation did not open this canal in seven years, for 
 the passage of rafts and boats, then their powers as to this canal 
 ceased. Now the plaintiff alleges, say the defendants, that when the 
 injury complained of happened, which was more than seven years 
 from the passing of the statutes, the proprietors had then, and for a 
 long time before, neglected to open and dig this canal. 
 
 If we were obliged to adopt the construction of the plaintiff's alle- 
 gation, on which the defendants insist, the objection ought to prevail. 
 But attending to other parts of the declaration, we find it averred that 
 this canal belonged to the proprietors, and that they, unmind- 
 ful of their duty, neglected to open and dig the same of a suf- 
 ficient depth, and permitted it to remain in a decayed state, and out 
 of repair, and the passage to become and remain choked and filled 
 up. We are now considering the declaration after a verdict, and the 
 fair construction of this allegation is not that they never opened and 
 dug the canal sufficiently, but that they neglected to open it by dig- 
 ging and removing the collection of matters which choked it and ob-
 
 9 THE CORPORATION AS A PERSON. 49 
 
 structed the passage. We are, therefore, satisfied that the motion in 
 arrest can not prevail on the ground we have been considering. 
 
 The other ground is that no action lies against a corporation for a 
 breach of its duty by any person specially injured by the breach, and 
 that the only remedy is by information or indictment. This point has 
 been argued by the defendant's counsel with much ability, and has 
 had all the attention we could give it in the short time the constitution 
 of this court has allowed us. 
 
 The argument, when compressed, is that corporations, having only 
 a legal and not a natural body, no capiatur lies against them ; that in 
 all actions of trespass and trespass on the case, where the general 
 issue is not guilty, if judgment be against the defendant, a part of the 
 judgment at common law is an entry of a capiatur \ that, therefore, 
 no such actions lie against a corporation at common law ; and the 
 statute, taking away the necessity of the entry of a capiatur, does not 
 authorize an action which did not lie before. 
 
 That a process to take the body of a corporation does not lie is 
 certainly true, but the defendants must show that in all actions of 
 trespass a capiatur against the defendant may, from the nature of the 
 action, be entered. In 21 Edw. 4, 7, 12, 27, 67, it is holden that a 
 corporation can not be beaten, nor beat, nor commit treason or felony, 
 nor be imprisoned for a disseizin with force, nor be outlawed, nor a 
 capias in debt be awarded against them. These principles result from 
 the nature of an aggregate corporation. 
 
 But the defendants have relied on an opinion of Thorp, J. , in 22 
 Ass. pi. 67. He there says that trespass does not lie against a corpo- 
 ration aggregate by its corporate name, for a capias and exigent do 
 not lie against it. That a capias and exigent do not lie against a cor- 
 poration is evident ; but that no action of trespass lies is questionable. 
 For it is agreed that a corporation may be fined on indictment, and 
 the fine levied by distress ; and why may not a corporation be amerced, 
 and the amercement collected in the same manner? This has led us 
 to look into the ancient law on this subject and we find Thorp's opin- 
 ion overruled as to certain trespassess. In 31 Ass. pi. 19 a corpora- 
 tion is holden answerable in assize as a disseizor with force. In 8 
 H. 6, i, 14, 6, an aggregate corporation was holden answerable in 
 trespass for distraining the plaintiff's cattle until he paid a toll, which 
 he was not bound to pay. Several other cases are mentioned in The- 
 loal's Dig. lib. 4, c. 13, as trespass against a corporation for disturb- 
 ing the plaintiff in the profits of his liberties ; or for disturbing him 
 in holding a leet. It is therefore very clear, from the examination of 
 the old books, that some actions of trespass might, at common law, 
 be maintained against aggregate corporations. And, as in these 
 actions no capiatur could be entered, the omission of this entry can 
 be no objection to actions of trespass on the case. The foundation of 
 the defendants' argument seems to fail them. 
 
 Let us now leave the ancient cases and resort to the maxims of the 
 common law, which are founded in good sense and substantial justice. 
 
 4 WIL. CASES.
 
 50 RIDDLE V. THE PROPRIETORS. 9 
 
 // is one of these maxims that a man specially injured by the breach 
 of duty in another shall have his remedy by action. If the breach 
 of duty be by an individual, there is no question; and why should a 
 corporation, receiving its corporate powers and obliged by its corpo- 
 rate duties ''with its own consent, be an exception, when it has, or 
 must be supposed to have, an equivalent for its consent? 
 
 We distinguish between proper aggregate corporations, and the in- 
 habitants of any district, who are by statute invested with particular 
 powers without their consent. These are in the books sometimes 
 called ^#a.sz'-corporations. Of this description are counties and hun- 
 dreds in England, and counties, towns, etc., in this state. Although 
 guasz-corporations are liable to information or indictment for a neg- 
 lect of a public duty imposed on them by law, yet it is settled in the 
 case of Russel et al. v. Inhabitants of the County of Devon, 1 that no 
 private action can be maintained against them for a breach of their 
 corporate duty, unless such action be given by statute, and the sound 
 reason is, that having no corporate fund, and no legal means of ob- 
 taining one, each corporator is liable to satisfy any judgment rendered 
 against the corporation. This burden the common law will not im- 
 pose, but in cases where the statute is an authority, to which every man 
 must be considered as assenting. But in regular corporations, which 
 have, or are supposed to have, a corporate fund, this reason does not 
 apply. 
 
 Among the modern cases there is one which seems in its principles 
 to apply directly to the case before us. It is the case of The Mayor 
 of Lynn, in error, v. Turner. 2 Turner sued the corporation of 
 Lynn Regis for not repairing and cleansing a certain creek, in which 
 the tide ebbed and flowed, as from time immemorial they had been used, 
 by which he lost the use of his navigation. The declaration contained 
 a number of counts, in one of which the special damage alleged was 
 that the plaintiff was obliged to carry his corn round about. At the 
 common pleas judgment on nil dicit was rendered on all the counts. 
 For the plaintiff in error it was argued that the creek as described was 
 an highway, and as in one of the counts no special damage was al- 
 leged, the action did not lie. But Lord Mansfield and the court said 
 that a creek, in which the tide ebbed and flowed, was not necessarily 
 a highway; that the corporation were bound by prescription, and it 
 might be the very condition or terms of their charter. And the judg- 
 ment was affirmed. By this decision it is settled that case will lay 
 against a corporation for neglect of a corporate duty by which the 
 plaintiff suffers. How far a special damage must be alleged we need 
 not now decide. 
 
 For the proprietors, in support of their motion, a reference was 
 made to the several statutes creating our turnpike corporations, in 
 which an action is given to any person specially injured by a neglect 
 in repairing the road. This provision was cumulative, and intro- 
 duced ex majori cautela by the framers of the bills ; and is no objection 
 to our present construction of the law. 
 
 1 2 D & E. 667. 2 Cowp. 86.
 
 10 THE CORPORATION AS A PERSON. 51 
 
 There appears to us, upon the whole, no sufficient ground to stay 
 judgment, and, as the exceptions to the verdict can not prevail, the 
 plaintiff must have judgment. 
 
 Judgment on the verdict. 
 
 Note. The duties and liabilities of corporations will be the subject of later 
 chapters. See infra, chs. 13-17, pp. 914-1766. 
 
 See. 10. Same. This artificial personality is recognized par- 
 ticularly, (i) In statutes. The word "person'" includes 
 private corporations, unless the legislative intention or the rea- 
 son of the law is clearly otherwise. 
 
 CRAFFORD v. SUPERVISORS OF WARWICK COUNTY. 1 
 
 1890. IN THE SUPREME COURT OF APPEALS OF VIRGINIA. 87 Vir- 
 ginia 110-118, 10 L. R. A. 129. 
 
 [In 1888 the general assembly of Virginia enacted: "That it shall 
 be the duty of the judge of the county court upon the application of 
 persons paying one-third of the-taxes upon real estate in said county, " 
 to order the election officers to hold an election "for the purpose of 
 ascertaining the sense of the qualified voters of said county" concern- 
 ing the removal of the court-house, etc. Application was accord- 
 ingly made by various parties (including many corporations), who 
 paid more than one-third of the taxes on real estate in the county, 
 whereupon the court ordered the holding of an election ; this was 
 done, and a majority of the qualified electors voted for removal ; and 
 in pursuance of such vote the supervisors, as provided by the statute, 
 commenced to remove the court-house. The appellants, Crafford 
 and others, obtained an injunction from the corporation court, re- 
 straining the supervisors from proceeding with the removal ; this in- 
 junction was dissolved by the circuit court, and appeal from that court 
 was taken to the supreme court of appeals.] 
 
 FAUNTLEROY, J., delivered the opinion of the court. * * * 
 The question raised by the pleadings in this cause is, whether or 
 not corporations are included or signified in the term "persons," as 
 expressed in the first section of the said act of assembly of March 2, 
 1888, under which the sense of the qualified voters of Warwick county 
 was ordered to be taken, and was so taken, by the election aforesaid. 
 The appellants contend that the word "persons" in the said act does 
 not embrace or include corporations, and that the said word "per- 
 sons" should be construed to mean "voters paying taxes on real estate 
 in the county of Warwick," and that the corporations, owning real 
 estate in the said county and paying taxes on the same amounting to 
 very nearly two-thirds of the whole taxes on real estate in the county, 
 were not competent signers to the written petition or application to 
 
 1 Statement of facts condensed. Part of opinion omitted.
 
 52 CRAFFORD V. SUPERVISORS. IO 
 
 the judge of the county court, upon which he based the order for the 
 election to take or test the sense of the qualified voters of the county 
 of Warwick, as to the removal of the site of the court-house of the 
 said county, under the provisions of the said act. The language of 
 the first section of the act under consideration is plain, explicit, posi- 
 tive and unambiguous, and neither calls for nor admits of construc- 
 tion. If the legislature had intended that the words (which it did 
 use) "upon the application of persons paying one-third of the taxes 
 upon real estate in said county" should mean "qualified voters pay- 
 ing taxes on real estate in the county of Warwick (which it did not 
 use), it would presumably have said so; and few, simple and unam- 
 biguous as the words are, contained in the said first section, the 
 "officers conducting elections in the county of Warwick, on the 
 fourth Thursday in May, 1888, are ordered to open a poll for the pur- 
 pose of ascertaining the sense of the qualified voters of the said 
 county," etc., in the same sentence in which it is said "that it shall 
 be the duty of the judge of the county court, upon the application of 
 persons paying one-third of the taxes upon real estate in said county, 
 to order the election to be held," etc. It is thus unmistakably and 
 undebatably manifest upon the face of the short and plain first sec- 
 tion itself, that in the same sentence the legislature discriminated 
 the phrase "persons paying one-third 'of the taxes upon real estate in 
 said county" from the phrase "the sense of the qualified voters of said 
 county," making the one the condition precedent to warrant the judge 
 to order the election, and the other to define and confine the election, 
 when held, to the "qualified voters of said county." 
 
 The legislature, like every other oracle, must be held to intend to 
 say, what it has explicitly and imperatively said ; and where, by the 
 use of clear and unequivocal language, anything is enacted by the 
 legislature, effect must be given to it, and it can not be construed ' 
 away. The whole amount of the taxes upon real estate in the county 
 of Warwick, for the fiscal years of 1887-1888, was $10,009.76, of 
 which $6,451.80 was paid by corporations owning real estate in the 
 said county ; and the first section of the act devised a mode by which 
 these heavy tax-paying corporations could, to a certain extent, and in 
 the preliminary action prescribed to the election, protect their large 
 interests from the expense and burden of the cost of the election, and 
 of the removal of the court-house from its present location to Newport 
 News. The design of the statute was to protect the tax-payers and a 
 designated class of tax-payers those who paid taxes upon real estate 
 in the county from the imposition of additional taxation upon their 
 real estate. The tax-payer on personality could not petition the county 
 judge to order the election. Why, nobody knows or can conjecture; 
 but so it was enacted. Corporations paid taxes on real estate in the 
 county, like as individuals, and had the same interest to protect and a 
 like burden to bear should the expense be incurred and the tax im- 
 posed to pay it. Why are they not in equal protection of the law? 
 They belong to the designated class, and they are equally within the 
 reason, the justice and the intent of the law. They could not vote,.
 
 io "PERSON" INCLUDES CORPORATIONS. 53 
 
 but they were, designedly and expressly, given a voice in the question 
 as to whether or not the election should be ordered, and thereby have 
 an additional burden of taxation imposed upon them. 
 
 An intent to do what is unjust, and to discriminate, unjustly 
 and without reason, between different cases of a like kind, is not to 
 be ascribed to the legislature. Arthur v. Blight, 2 Cranch 390; 24 
 Pickering 37O. 1 The real estate of both the individual and the corpo- 
 ration are alike subject to the taxation which may be imposed. Can 
 any reason be given why there should be a discrimination against cor- 
 porations owning real estate, and paying nearly two-thirds of all the 
 taxes on real estate in the county, under this statute, to determine the 
 question of whether additional taxation should be made necessary? 
 Would not this be an unjust and unreasonable discrimination between 
 classes of tax-payers in similar cases? Wherever the governing 
 principle is taxation, the term persons in a statute has been held to 
 include corporations ; and, under the assessment and tax laws, corpo- 
 rations are assessed and taxed, although the word persons is used 
 therein, and corporation is not mentioned. 
 
 In the case of Beaston v. Farmers' Bank of Delaware, 12 Peters 
 134-5, ti 16 supreme court of the United States said: "Corporations 
 are to be deemed and considered as 'persons ,' when the circumstances 
 in which they are placed are identical with those of natural persons 
 expressly included in such statutes." 
 
 In Stribbling v. The Bank of the Valley, 5 Rand., on p. 180, Judge 
 Cabell said: "The term 'person,' used in the law, is unquestionably 
 sufficiently comprehensive to embrace corporations ; and it must be 
 held to embrace them unless there is something in the law showing 
 the legislative intention to restrict its application." 
 
 In United States Bank v. Merchants' Bank, i Robinson 589, Judge 
 Allen said, "For civil purposes, corporations are, in law, deemed 
 persons." United States v. Amedy, n Wheaton 393, and quoting, 
 with approval, Beaston v. Farmers' Bank of Delaware, 12 Peters 
 134, and Stribbling v. Valley Bank, 5 Rand. 132, goes on to say the 
 "only doubt has been whether the word (person) would embrace 
 (corporations) within penal statutes," etc. 
 
 In Baltimore & Ohio R. Co. v. Gallahue's Adm'r, 12 Gratt. 663, 
 "When the word persons is used in a statute, corporations, as well as 
 natural persons, are included for civil purposes." 2 Inst. 697, 703, 
 736. 
 
 In the Code of 1873, ch. 16, 17, p. 101, it is provided that the 
 word persons, in a statute, "may extend to and be applied to bodies 
 politic and corporate as well as to individuals, unless it would be in- 
 consistent with the manifest intention of the legislature," and the 
 same provision is in the Code of 1887. The word persons does cer- 
 tainly include corporations unless the intention of the legislature is 
 manifest that corporations were intended to be excluded from it-s op- 
 eration. Corporations are not, in terms, excluded from its operation. 
 The omission of the word corporations does not exclude them, for 
 
 1 Commissioners v. Kimball.
 
 54 CRAFFORD V. SUPERVISORS. IO 
 
 this act uses a word "persons," which may include them, and which 
 must include them, unless it was the manifest intention of the legisla- 
 ture to exclude them from the operation of the act. Nor is there any- 
 thing in the nature of the act to exclude corporations from its opera- 
 tion. Miller's Ex. v. The Commonwealth, 27 Gratt. 115. See, 
 also, Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 
 Rawle 9; Field v. New York Central R. Co., 29 Barb. 176; Wright 
 v. Tame, 28 Barb. 80; Johnson v. Mclntosh, 31 Barb. 267; Wallace 
 v. Mayor of New York, 2 Hilton 440 ; La Forge v. Exchange Fire Ins. 
 Co., 22 N. Y. 334; The People v. Utica Ins. Co., 8 Am. Dec. 251 ; 
 Pembina Manf'g Co. v. Pennsylvania, 125 U. S. Rep. 181 ; Provi- 
 dence Bank v. Billings, 4 Peters 504. 
 
 To hold, as is the contention of the appellants, that the legislature 
 intended, by the use of the word "persons" paying one-third of the 
 taxes, etc., to restrict it to voters paying one-third of the taxes, etc., 
 would not only exclude corporations, but non-residents, and even res- 
 idents who had not resided long enough to become voters women, 
 minors, aliens none of whom could be a voter, yet many of whom, 
 if not, indeed, all, are tax-payers upon real estate in Warwick 
 county. 
 
 If we give the other construction contended for by the appellants, 
 that "persons" meant natural persons, and that natural persons sign- 
 ing the application should represent one-third of the taxes paid upon 
 real estate, it would have put it in the power of two persons paying 
 one-forty-fifth part of the whole real estate tax in the county to have 
 denied the wishes and defeated the will of all the other real estate 
 owners, and the whole population of the county united in the applica- 
 tion to the judge to order the election. It is not to be imputed to the 
 legislature that they had any such an absurdity of intention, and it is 
 not consistent with the object and context of the act. 
 
 If corporations paying taxes upon real estate in Warwick county are 
 not within the intent of the word "persons" in the act, then they must 
 be excluded ; and, if excluded, the individuals paying taxes upon real 
 estate in the county, who signed the petition or application to the 
 judge to order the election, did pay more than one-third of the taxes 
 paid by individuals on real estate in the county of Warwick. The 
 amount of taxes upon real estate in the county of Warwick paid by 
 corporations was $6,451.80, of which sum the Chesapeake and Ohio 
 Railroad Company paid $3,130.47. It is objected by the appel- 
 lants that Williams C. Wickham, who signed the application to the 
 judge to order the election, did so as receiver, and without authority. 
 It is not necessary to decide this question, inasmuch as those corpora- 
 tions who did sign, other than the C. & O. R. R. Co., by W. C. 
 Wickham, receiver, paid $2,271.33, which, added to the taxes on 
 real estate paid by individuals who signed the application, $1,395.46, 
 amounts to $3,666.79, which is more than one-third of the whole 
 amount of the taxes on real estate paid in Warwick county by $333.53. 
 
 We are of opinion that the election was properly ordered by the 
 judge of the county court of Warwick, and that the election was duly
 
 io "PERSON" INCLUDES CORPORATIONS. 55 
 
 and properly conducted, and that the circuit court rightfully dissolved 
 the injunction which had been granted in the cause, September 4, 
 1888, by the judge of the corporation court of the city of Manchester, 
 and the decree appealed from is without error, and the same is af- 
 firmed. 
 
 Decree affirmed. 
 
 Note. The rule given in this case seems to be the one that now has the 
 weight of authority; but in Betts v. Menard, 1 Breese's Appeal (111.), P- 395 
 (1831), the rule was announced that "persons" would not include "corporations" 
 unless it was absolutely necessary to carry out the objects of incorporation. This 
 rule seems to have been followed in State v. Fertilizer Co., 24 Ohio St. 611 
 (1874), in interpreting a criminal statute relating to a nuisance. The later 
 Ohio cases seem to have laid down a rule in accordance with the one given 
 above in the Crafford case. See Springfield v. Walker, 42 Ohio St. 543, and 
 Cincinnati Gas Light and Coke Co. v. Avondale, 43 Ohio St. 257. 
 
 Some of the earlier cases followed a rule similar to that in Betts v. Menard, 
 supra. See Blair v. Worley, 1 Scam. (111.) 178 (1835); School Directors v. 
 Carlisle Bank, 8 Watts (Pa.) 291. And in Fox's Appeal, 112 Pa. St. 337, 14 
 Am. & Eng. Corp. Cas. 356 (1886), the rule is stated that unless something in 
 the context indicates that "person" shall include "corporation," it will not 
 be so held. In the leading English case, Pharmaceutical Society v. London, 
 etc., Assn., 5 App. Cas. 857, it was allowed that in an act of Parliament, re- 
 lating to persons, corporations were presumptively included, but that the pre- 
 sumption was not strong, and the context of the act should determine. 
 
 See, particularly, Elliott Corp., 8; Morawetz Corporations, 1091; Grant 
 on Corp., p. 4, note 5; 8 Am. & Eng. Ency. of Law, 626 (franchise) ; 18 Am. 
 & Eng. Ency. of Law 405 (person) ; Cook Stock and Stockholders, 700 ; 
 note 19 Lawyer's Reports Annotated, p. 222, where the cases are classified. 
 
 ILLUSTRATIONS. 
 
 1. In general, See Ricker v. Am. L., etc., Co., 140 Mass. 346; Turnbull 
 v. Prentiss Lumber Co., 55 Mich. 387 ; Billings v. State, 107 Ind. 54; Stewart 
 v. Waterloo Turn Verein, 71 Iowa 226, 60 Am. Rep. 786 ; Springfield v. Walker, 
 42 Ohio St. 543; Forrest v. Henry, 33 Minn. 434; Fagan v. Boyle Ice Mach. 
 Co., 65 Tex. 331; Chippeway Valley, etc., R. R. Co. v. Chicago, etc., R. Co., 
 75 Wis. 224 ; Union Steamship Co. v. Milburne H. Co., 9 App. Cas. 365 ; Fox's 
 App., 112 Pa. St. 337, 14 A. & E. Corp. Cas. 356. 
 
 2. Attachment laws relating to persons, apply also to private corporations. 
 See Planters' Bank v. Andrews, 8 Port. (Ala.) 404; Libby v. Hodgdon, 9 N. 
 H. 394; Knox v. Protection Ins. Co., 9 Conn. 430, 25 Am. Dec. 33; Bray v. 
 Wallingford, 20 Conn. 416; Baltimore, etc., R. Co. v. Gallahue, 12 Gratt. 
 ( Va.) 655 65 Am. Dec. 254 ; Mineral Point R. Co. v. Keep, 22 111. 9, 74 Am. 
 D. 124; Bushel v. Com. Ins. Co., 15 Serg. & R. (Pa.) 173; South Carolina R. 
 Co. v. McDonald, 5 Ga. 531 ; Union Bank v. United States Bank, 4 Humph. 
 (Tenn.) 369; Martin v. Branch Bank, 14 La. 415. But compare McQueen v. 
 Middleton Mfg. Co., 16 Johns. (N. Y.) 5; and Mayor of Baltimore v. Root, 8 
 Md. 95. In Dollman v. Moore, 70 Miss. 267, 19 L. R. A. 222, it was held that 
 a board of school trustees was not a person within the meaning of attachment 
 laws. 
 
 3. Appeals. Statutes allowing appeals by persons apply to corporations : 
 People v. May, 27 Barb. (N. Y.) 238. 
 
 4. Banking 1 . Statutes prohibiting persons from banking apply to corpora- 
 tions: People v. Utica Ins. Co., 15 Johns. (N. Y.) 358, 8 Am. Dec. 243. 
 
 5. Citizens. (a) Corporations are notcitizens within the meaning of section 
 2, article 4 of theU. S. constitution, saying, "The citizens of each state shall be 
 entitled to all the privileges and immunities of citizens in the several states." 
 See Paul v. Virginia, 8 Wall. (U. S.) 168; Western Union Tel. Co. v. Mayer, 
 28 O. S. 521 ; Norfolk & West. R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. 
 Ct. Rep. 958; Pembina Con. Silver Min., etc., Co. v. Pennsylvania, 125 U. S.
 
 56 ILLUSTRATIONS. IO 
 
 181 ; Railroad v. Barnhill, 91 Tenn. 395, 30 Am. St. 889 ; Horn S. M. Co. v. 
 New York, 143 U. S. 305; People v. Wemple, 131 N. Y. 64; note to State v. 
 Goodwill in 25 Am. St. Rep. 873; Daggs v. Orient, etc., Co., 136 Mo. 382, 58 
 Am. St. 638; Commonwealth v. New York, etc., R. Co., 129 Pa. St. 463, 15 
 Am. St. R.724. Compare St. Louis Iron M. T. R. Co. v. Paul, 64 Ark. 83, 
 62 Am. St. R. 154, and note p. 167. 
 
 (6) But corporations are citizens of the state creating them within the mean- 
 ing of section 2, article 3, of the constitution, that "the judicial power shall 
 extend to all cases between citizens of different states." See 1809, Hope Ins. 
 Co. v. Boardman, 5 Cranch (9 U. S.) 57; 1809, Bank of U. S. v. Deveaux, 5 
 Cranch(9U. S.)61; 1840, Commercial, etc., Bank v. Slocomb, 14 Pet. (U. S.) 
 60, all of which held that the court "would look beyond the mere legal be- 
 ing, and consider the citizenship of the individuals of whom the company is 
 composed." In 1844, Louisville, etc., R. Co. v. Letson, 2 How. (43 U. S.) 
 497, 558, the court, after an elaborate review, overruled the former cases and 
 announced the rule above given. The later cases are: 1853, Marshall v. B. 
 & O. R. Co., 16 How. (57 U. S.) 314; 1861, Ohio & Miss. R. Co. v. Wheeler, 1 
 Black. (66 U. S.) 286; 1865, County of Allegheny v. Cleveland & P. R. Co., 51 
 Pa. St. 228, 88 Am. D. 579; 1870, Railroad Co. v. Harris, 12 Wall. 65; 1871, 
 Chicago & M. V. R. Co. v. Whitton, 13 Wall. (80 U. S.) 270; 1876, Muller v. 
 Dows, 94 TJ. S. 444 ; 1881, C. & W. I. R. Co. v. L., S. & M. S. R. Co., 5 Fed. R. 
 19; 1882, Memphis, etc., R. Co. v. Alabama, 107 U. S. 581; 1885, Pennsyl- 
 vania Co. v. St. L., A. & T. R. Co., 118 U. S. 290; 1890, Nashua & L. R. Co. 
 v. Boston & L. R. Co., 136 TJ. S. 356; 1890, Paul v. B. & O. R. Co., 44 Fed. 
 Rep. 513; 1892, Shaw v. Quincy Mining Co., 145 TJ. S. 444; 1892, Southern 
 Pac. R. Co. v. Denton, 146 TJ. S. 202; 1893, In re Hohorst, 150 TJ. S. 653; 
 1895, Missouri Pac. R. Co. v. Meek, 69 Fed. Rep. 753, 30 L. R. A. 250; 1896, 
 St. Louis & San Francisco R. Co. v. James, 161 TJ. S. 545, infra, p. 1099 ; 1896, 
 Louisville Trust Co. v. L., N. A. & C. R. Co., 75 Fed. Rep. 433. 
 
 (c) As to fourteenth amendment, see infra, No. 10. 
 
 6. Contracts. Statutes relating to contracts of persons apply to corpora- 
 tions also: Mott v. Hicks, 1 Cow. (N. Y.) 513; State v. Nashville Univ., 
 4 Humph. (Tenn.) 157; Commercial Bank v. Nolan, 8 Miss. (7 How.) 508; 
 Cincinnati Gas Co. v. Avondale, 43 Ohio St. 257. 
 
 7. Death by wrongful act. Statutes making persons liable for such, in- 
 clude corporations : Chase v. Steamboat Co., 10 R. I. 79. 
 
 8. Eminent domain statutes apply to corporations, though persons only are 
 named: Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle (Pa.) 9, 26 Am. 
 Dec. 111. 
 
 9. Evidence. A corporation is a "living person" within the meaning of a 
 statute giving a party the right to testify when the adverse party is a living 
 person: La Farge v. Exchange F. Ins. Co., 22 N. Y. 352. 
 
 10. Fourteenth amendment. The provisions of section 1, saying "No 
 state shall deprive any person of life, liberty or property without due process 
 of law ; nor deny to any person within its jurisdiction the equal protection of 
 the laws," protects the rights of the corporations, when in the state, the same 
 as persons: Pembina Mining Co. v. Pennsylvania, 125 TJ. S. 181 ; Santa Clara 
 Co. v. South Pacific R. Co., 118 TJ. S. 394, 24 Am. & Eng. Corp. Cas. 523; Min- 
 neapolis, etc., R. Co. v. Beckwith, 129 TJ. S. 26 ; Charlotte, etc., R. Co. v. Gill, 
 142 U. S. 386; County of San Mateo v. South Pacific R. Co., 13 Fed. Rep. 722, 
 supra, p. 36; Covington, etc., R. Co. v. Sanford, 164 TJ. S. 578; Smythe v. 
 Ames, 169 TJ. S. 522, 171 TJ. S. 361. But contrary to the holding in University 
 v. Foy, supra, p. 34, the 14th chapter of Magna Charta, that "no freeman shall 
 be amerced," etc., was held not to apply to corporations aggregate but only 
 to corporations sole. 2 Inst. 169, 170, 8 Rep. 39. 
 
 11. Foreign corporations are not persons within a constitutional provision 
 "that no person shall be deprived of the natural rights to life, liberty and the 
 enjoyment of the gains of his own industry." Daggs v. Orient Ins Co 136 
 Mo. 382, 58 Am. St. 638. See, also, Blake v. McClung, 172 U. S. 239, infra, 
 p. 2036; Hammond, etc., Co. v. Best, 91 Maine 431, 42 L. R. A. 528. 
 
 12. Incorporation. - Statutes providing that a certain numberof persons may
 
 io "PERSON" INCLUDES CORPORATIONS. 57 
 
 incorporate do not include corporations as such persons. Factors, etc., Ins. 
 Co. v. New Harbor P. Co., 37 La. Ann. 233 ; Humphrey v. Mooney, 5 Colo. 282 ; 
 Central R. Co. y. Pa. R. Co., 31 N. J. Eq. 475. See infra, pp. 553, 889. 
 
 13. Jurisdiction of courts. For this purpose a corporation is a person, in- 
 habitant or citizen of the state creating it. See cases cited in this note No. 5, 
 (&) above. See, also, Brown v. Mayor, etc., 66 N. Y. 385; Chicago, etc., R. 
 v. Bank of North America, 82 111. 493; Eslava v. Ames, etc., 47 Ala. 384. 
 
 14. Limitation of actions. Statutes of limitation apply to corporations in 
 the same way as to persons. People v. Trinity Church, 22 N. Y. 44; North 
 Missouri R. Co. v. Akers, 4 Kan. 453. 
 
 15. Misdemeanors. Statutes making persons liable for, include corpora- 
 tions. White v. State, 69 Ind. 273. 
 
 16. Penalties. Statutes providing penalties for certain acts of persons, per- 
 haps do not include corporations unless the context very clearly shows they 
 are meant to be so included. This is on account of the strict construction of such 
 statutes. See Coats v.. People, 22 N. Y. 245; United States v. Kan. P. R., 4 C. 
 L. J. 174; Androscoggin Water Power Co. v. Bethel S. M. Co., 64 Maine 441; 
 Benson v. Monson, etc. ,9 Mete. (Mass.) 562; Ohio v. Cincinnati Fertilizer Co., 
 24 Ohio St. 611; Guardians of St. Leonard v. Franklin, 3 C. P. Div. 377. 
 
 17. Promissory notes. The Statute of Anne providing for the negotiability 
 of notes made payable to the order of any person applies to notes by or to 
 corporations or to the order of corporations. Indiana v. Woram, 6 Hill. 
 (N. Y.) 33; Mott v. Hicks, 1 Cow. (N. Y.) 513. 
 
 18. Property, protection of. See below, Trespass, No. 23, and No. 10, 
 above. United States v. Amedy, 11 Wheat. (U. S.) 392. 
 
 19. Practice and procedure. People v. May, 27 Barb. (N. Y.) 238. See 
 also Appeals, No. 3, above, and Jurisdiction, No. 13, above. 
 
 20. Registry laws. Statutes providing for the registration of vessels or 
 other things by persons include corporations. Regina v. Arnaud, 9 Q. B. 806, 
 infra, p. 58 ; Durant v. Kennett L. R., 5 C. P. 262. 
 
 21. Real estate. Statutes relating to real estate of persons apply to that of 
 corporations. Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle (Pa.) 9; Blair 
 v. Worley, 1 Scam. (111.) 178; Cortes v. Kent Water Works Co., 7 B. & C. 
 (K. B. Eng.) 314. 
 
 22. Taxation. Statutes relating to the taxation of the property of persons, 
 inhabitants, residents, etc., include that of corporations also. See Rex v. Gard- 
 ner, Cowp. 79, but see 3 Q. B. 233; Royal Exchange Assurance Co. v. 
 Vaughan, 1 Burr. 155; Reg. v. Birmingham, etc., Ry. Co., 3 Q. B. 233; Peo- 
 ple v. Utica Ins. Co., 15 Johns. (N. Y.) 358, 382, 8 Am. Dec. 243; Mayor of 
 Mobile v. Rowland, 26 Ala. 498; Trenton Bank v. Haverstick, 6 Halst. (N. 
 J.) 171; City of St. Louis v. Rogers, 7 Mo. 19; Bushel v. Can. Ins. Co., 15 S. 
 & R. (Pa.) 173; Chicago, etc., R. Co. v. Bank of N. A., 82 111. 493; People v. 
 McLean, 80 N. Y. 254; Otis Co. v. Inhabitants of Ware, 8 Gray (Mass.) 509; 
 Baldwin Inhabitants v. Trustees, 37 Maine 369; Louisville, etc., R. Co. v. 
 Com., 1 Bush (Ky.) 250; Compare Fox's Appeal, 112 Pa. St. 337, 14 A. & E. 
 C. C. 356; Cherokee Ins. Co. v. Justices, 28 Ga. 121; Hartford Ins. Co. v. 
 Hartford, 3 Conn. 15. 
 
 23. Trespasses, protection from. Statutes protecting the property of per- 
 sons apply to corporations also. White v. State, 69 Ind. 273 ; State v. Nashville 
 Univ., 4 Humph. (Tenn.) 157 ; Bartee v. Houston, etc., R. Co., 36 Texas 648. 
 
 24. Usury. Statutes forbidding usury by persons apply to corporations 
 also. Thornton v. Bank of Wash., 3 Pet. (U. S.) 36; Grand Gulf Bank v. 
 Archer, 8 S. & M. (Miss.) 151. 
 
 25. Voting 1 . The English Public Health Act (11 and 12 Viet., sec. 20) 
 authorized corporations aggregate to vote by proxy under their common seal 
 at the election of local boards of health. Grant on Corp., p. *4, n. s. Of 
 course, where corporations may be owners of the stock of other corporations, 
 statutes relating to voting by persons would apply to the corporations as well.
 
 58 THE QUEEN, ETC., V. ARNAUD. II 
 
 Sec. 11. Same. (2) As to the ownership of its property. 
 THE QUEEN ON THE PKOSECTJTION, ETC., v. ARNAUD ET AL.' 
 
 1846. IN THE COURT OF QUEEN'S BENCH. 25 Law Journal Re- 
 ports {New Series, Vol. /d), for the year 1847, part II, 
 Cases at Common Law, pp. 50-55. 
 
 The judgment of the court was delivered by 
 
 LORD DENMAN, C. J. The object of the present mandamus is to 
 compel the custom-house officers to register a vessel, the property of 
 the Pacific Steam Navigation Company. The company is a corpo- 
 ration by charter of her present Majesty, for the purpose of providing 
 vessels, and employing them in the Pacific ocean. It is admitted by 
 the defendants that the company, as a British corporation, might be 
 owners of British-built vessels, and prima facie would be, as such 
 corporation, entitled to register them, under the provisions of the 
 8 and 9 Viet., c. 89, applicable to the registry of vessels by corpora- 
 tions. 2 
 
 But it is said that some of the members of the corporation are not 
 British subjects, but foreigners ; and, consequently, that the vessel 
 does not wholly belong to her Majesty's subjects, as required by the 
 5th section of the act, and is within the prohibition contained in the 
 1 2th section of the act, against foreigners being entitled to be owners, 
 in whole or in part, directly or indirectly, of any vessel requiring to 
 be registered. Now, it appears to us that the British corporation is, 
 as such, the sole owner of the ship, and a British subject within the 
 meaning of the 5th section, as far as such a term can be applicable to 
 a corporation, notwithstanding some foreigners may individually have 
 shares in the company, and that such individual members of the cor- 
 poration are not entitled, in whole or in part, directly or indirectly, to 
 be owners of th'e vessel. The individual members of the corpora- 
 tion, no doubt, are interested in one sense in the property of the cor- 
 poration, as they may derive individual benefit from its increase, or 
 loss from its destruction; but in no legal sense are the individual 
 
 1 Statement of facts, except as given in the opinion and notes, and argu- 
 ments omitted. 
 
 2 This act provided, section 5, * * * "That no vessel shall be registered 
 
 except such as are wholly of the build of the United Kingdom, 
 and which shall wholly belong or continue to belong to her 
 Majesty's subjects ' * *" Sec. 12. * * "That no person who has 
 taken the oath of allegiance to any foreign state, * * nor any person 
 usually residing in any country not under the dominion of her Majesty 
 ' shall be entitled to be the owner in whole or in part, directly or in- 
 directly, of any ship or vessel required to be registered, etc." Sec. 13. * * * 
 "That if it shall become necessary to register any vessel belonging to any 
 corporate body in the United Kingdom, the following declaration shall be 
 taken and subscribed by the secretary, etc., 'I, A. B., Secretary,' etc., 'do 
 hereby declare/ etc., * * * 'that the' same (ship) doth wholly and truly 
 belong to [name of company or corporation].' "
 
 I I THE CORPORATION AS A PERSON. 59 
 
 members the owners. If all the individuals of the corporation were 
 duly qualified British subjects, they could not register the vessel in 
 their individual names as owners ; but must register it as belonging 
 wholly to the corporation as owner. The terms of the 23d section, 
 with respect to the condition of the bond to be given upon obtaining 
 the registry, as to foreigners purchasing or becoming entitled to any 
 part or share of or interest in any ship or vessel, would appear to be 
 applicable to a case of purchase or transfer of property in the vessel 
 itself, as it provides that the certificate shall be delivered up, "within 
 seven days after such purchase or transfer of property in such ship," 
 and does not, as it seems to us, bear materially on the present ques- 
 tion. It was contended that the effect might be to defeat the object 
 and policy of the navigation laws in this respect, inasmuch as the in- 
 dividual members of the British corporation might, either originally 
 or by transfer, be all foreigners. Such does not appear to be contem- 
 plated or provided for by the act in question. If it be casus omissus, 
 and evil consequences arise, they may be remedied by the interfer- 
 ence of the legislature, or, possibly (though we do not wish to be 
 understood as giving any opinion upon this point), by repealing the 
 letters patent, as improvidently giving powers operating to defeat the 
 law and public policy, and, in future patents, by providing against 
 the objection. But, as the case stands, it seems to us that the British 
 corporation is, to all intents, the legal owner of the vessel, and entitled 
 to the registry, and that we can not notice any disqualification of an 
 individual member, which might disable him, if owner, from register- 
 ing the vessel in his own name. There will, therefore, be judgment 
 for the prosecutors, and a peremptory mandamus. 
 Judgment for the Crown. 
 
 Note. See also, Russell v. Temple, 3 Dane's Abr. (Mass.) 108; Bundy v. 
 Iron Co., 38 Ohio St. 300; Button v. Hoffman, 61 Wis. 20, 50 Am. R. 131; 
 Baldwin v. Canfield, 26 Minn. 43; Tomlinson v. Bricklayers' Union, 87 Ind. 
 308; Wheelock v. Moulton, 15 Vt. 519; Atchison, etc., R". Co. v. Cochran, 43 
 Kan. 225, 23 Pac. 151; Central T. Co. v. Kneeland, 138 U. S. 414; Louisville 
 Bank Co. v. Eisenman, 94 Ky. 83, 42 Am. St. 335; Humphreys v. McKissock, 
 140 U.S. 304 ; Parker v. Hotel Co., 96 Tenn. 252, 34 S. W 209 ; Pott v. Schmucker, 
 84 Md. 535, 57 Am. St. 415 ; Gallagher v. Germania Brewing Co , 53 Minn. 214 ; 
 Barrick v. Gifford, 47 O. S. 180, 21 Am. St. R. 798; England v. Dearborn, 141 
 Mass. 590; Rough v. Breitung, 117 Mich. 48, 75 N. W. Rep. 147; Warren v. 
 Davenport Fire Ins. Co., 31 Iowa 464, holding a stockholder has an insurable 
 interest in the corporation.
 
 60 FOSTER & SONS V. THE COMMISSIONERS. 12 
 
 Sec. 12. Same. (3) As to contracts between it and its members. 
 
 FOSTER & SONS, LIMITED, v. THE COMMISSIONERS OF INLAND 
 
 REVENUE. 1 
 
 1893. IN THE COURT OF APPEALS. Law Reports (1894), i Q. B. 
 
 Di v. 5 l6 ~53 2 - 
 
 [Case stated by the commissioners of inland revenue under the 
 stamp act of 1891, 54 and 55 Viet., ch. 39, 13. In 1891, eight 
 persons named Foster, then partners, extensively engaged in mercan- 
 tile, manufacturing, mining and banking business, agreed among 
 themselves to form a corporation under the English Limited Compa- 
 nies Act, to carry on their business ; they took the proper steps to form, 
 and did form, a corporation known as John Foster & Sons, Limited. 
 These same eight persons, acting as parties of the first eight parts, by 
 indenture duly executed, conveyed all the partnership property to the 
 corporation, John Foster & Sons, Limited (composed of the same 
 eight persons) acting as the party of the ninth part. The considera- 
 tion for the conveyance was nothing except the preferred, ordinary 
 and debenture stock in the corporation, which was apportioned to 
 each one of the first eight parties in proportion to his former interest 
 in the partnership property. Under the English Stamp Act (requiring 
 all conveyances to be duly stamped) the commissioners of Inland 
 Revenue levied a duty of ^700 IDS. This act provided, Sec. 70. 
 "The term 'conveyance on sale' includes every instrument * * * 
 whereby any property upon the sale thereof is legally or equitably 
 transfered to or vested in the purchaser or any other person on his be- 
 half. " * * * Sec. 71. "Where the consideration * * * 
 consists of stock * * * such conveyance is to be charged with 
 ad valorem duty in respect of the value of such stock * * *." 
 Sec. 78 imposed a duty on conveyances "not otherwise charged." 
 
 The question in this case was, was there any real conveyance upon 
 which a stamp duty was chargeable ? Wright, J. , of the divisional court, 
 held there was, but Cave, J. , of the same court, held the partners had 
 not sold their property, but there had been a mere rearrangement of 
 ownership among the same persons, the parties, property, shares and 
 consideration had remained the same. Wright withdrew his judg- 
 ment and allowed the commissioners to appeal.] 
 
 LINDLEY, L. J. : I confess that, with great deference to Cave, 
 J., I can not see the difficulty in this case. 
 
 The material sections of the act of 1870 must first be considered. 
 
 [The lord justice then read sections 70 and 71 of the stamp act of 1870, and 
 continued.] 
 
 The importance of section 71, to my mind, is this: It shows 
 that there may be a conveyance on sale, although the considera- 
 tion for it is not cash or money, but may include or consist of stock 
 or marketable securities. The definition of "stock" and "marketable 
 
 1 Statement of facts condensed. Opinions of Cave and Wright, JJ., of the 
 3ivisional court, and arguments omitted.
 
 12 THE CORPORATION AS A PERSON. 6 1 
 
 securities" will be found in section 2. Then section 78 imposes a stamp 
 duty on conveyances not otherwise charged, and the schedule shows what 
 the stamps are that are imposed upon conveyances that are charged. 
 First, we have "conveyance or transfer, whether on sale or other- 
 wise," of certain stocks and dividends. The present case does not 
 come within that head. Then we have "conveyance or transfer on 
 sale, of any property" * * * "where the amount or value of 
 the consideration for the sale does not exceed 5/." That fits in with 
 sections 70 and 71. Then we cometo: "Conveyance or transfer by way 
 of security of any property or of any security ;" and then we have 
 "conveyance or transfer of any kind not hereinbefore described." 
 We must accordingly consider under which of these heads the par- 
 ticular deed in this case comes. It certainly does not come under the 
 first, nor under "conveyance or transfer byway of security of any 
 property," and the alternative is between "conveyance or transfer on 
 sale" and "conveyance or transfer of any kind not hereinbefore de- 
 scribed." 
 
 Now, the document in this case is an indenture made between eight 
 gentlemen of the first eight parts and "John Foster & Sons, Limited 
 (hereinafter called 'the company'), of the ninth part." Pausing there 
 for a moment, although the persons of the first eight parts may be 
 and were members, and the only members, of John Foster & Co., 
 Limited, John Foster & Co., Limited, is not those eight individuals; 
 John Foster & Co., Limited, is a corporation. We have accordingly 
 tivo parties, one party consisting of several individuals, and the 
 other party consisting of a corporation. WhetJier they are or are 
 not the members, or the only members of the corporation, is wholly 
 immaterial. The corporation is a totally different person from them 
 in any capacity you choose to assign to them, except a corporate one. 
 
 [The lord justice then stated the recitals in the operative part of the con- 
 veyances, and continued] : 
 
 Then the parties of the first eight parts put their seals to the instru- 
 ment, and the company puts it seal to it. Now, what is that instru- 
 ment? It is certainly a conveyance of property that is obvious. In 
 order to amount to a conveyance of property there must be a person 
 conveying and a person taking, and you have them both here. The 
 persons conveying are the persons named in the first eight parts, 
 and the persons taking are the corporation named in the ninth part. 
 
 Now, what is the consideration ? The consideration for the trans- 
 fer for this property is, I agree, not money, but it is stocks and secu- 
 rities, which for this purpose are to be regarded as equivalent to 
 money by reason of section 71 of the act to which I have already alluded. 
 Then what have we got? To sum it up shortly, it is a conveyance of 
 property from one person to another for money, or what is, according 
 to the provisions of the statute, equivalent to money. What is that 
 except a conveyance on sale ? What else can you call it ? It is cer- 
 tainly not a gift ; it is not an exchange ; it is not a partition ; it is not 
 a mortgage. I do not know what it is unless it is a conveyance on<
 
 62 FOSTER & SONS V. THE COMMISSIONERS. 12 
 
 sale. I do not know what is necessary to constitute a sale, except a 
 transfer of property from one person to another for money, or for the 
 purposes of the stamp act, for stock or marketable securities. 
 
 But then it is argued that it is only a redistribution of property. I 
 do not consider it a redistribution at all. It is an entire transfer of 
 property from one set of people to another person altogether, and 
 whether there are, as there may well be hereafter, additional persons 
 taking shares in this company, is perfectly immaterial. 
 
 Again it is argued on behalf of the appellants that this instrument 
 is in substance nothing more than a conveyance to a trustee to carry 
 on the business in trust for the grantor. Just try that. Suppos- 
 ing there is a conveyance by half a dozen people, transferring their 
 property to a trustee on trust to carry on the business for them, can 
 you in any sense of the word, legal or business-like, or otherwise, call 
 that trustee a buyer ? There is no buying ; there is no sale to him at 
 all, nor is there any money, or stock, or securities, or anything else 
 parted with by him. Then it was urged that these shares can derive 
 no value unless the company gets this property transferred to them. 
 That is possible enough. That is to say, in other words, that the 
 shares in the company would be valueless unless the company had 
 assets. Of course they would be, but that does not affect the ques- 
 tion whether there is a sale or a conveyance or not. I think myself 
 that Cave, J. , has attached too little importance to the fact that you 
 have here a distinct seller and a distinct buyer, and that in point of 
 law it is immaterial that in the present case the buyer is a corpora- 
 tion, which consists of the eight persons who formed and who are the 
 partners. The appeal must be allowed. 
 
 KAY, L. J. I am of the same opinion. With deference to Cave, 
 J., it seems to me impossible to hold that this transaction was any- 
 thing else than a conveyance on sale. As pointed out on the face of 
 the statute, the consideration may be money or money's worth. 
 Money's worth certainly is sufficiently expressed by a number of shares 
 and debentures of an existing corporation, which, in effect, consti- 
 tuted the consideration for the particular transfer in this case. Now, 
 that there was a conveyance is beyond all question. The persons who 
 are named as vendors in the deed have divested themselves of their 
 property in the subject of that conveyance, and all that property is 
 vested in an entirely independent and separate body; namely, a cor- 
 poration. Suppose that corporation had consisted of altogether dif- 
 ferent persons, no one for a moment would doubt that this was a con- 
 veyance on sale. Suppose there had been one person in it different, 
 there is nothing that I have heard in the argument which induces me 
 to suppose that even in that case it could have been doubted that this 
 was a conveyance on sale. But the argument, as I understand it, is 
 this: that the individual corporators who composed that corporation 
 were, in fact, the very identical persons who were conveying this 
 property to the corporation, and the corporation had no other property 
 except this which it took under its conveyance ; and that, as the only 
 value of the shares and debentures was derived from this very property
 
 12 THE CORPORATION AS A PERSON. 63 
 
 which the individual corporators were conveying to the corporation, 
 the conveying partners either got no consideration for that which they 
 conveyed other than part of the property actually conveyed, or they 
 got no consideration at all. Now, I do not follow that argument in 
 the least. I think it is a fallacy from beginning to end. In the first 
 place, a corporation is a different thing from the individuals who 
 compose it; and, secondly, the shares and debentures of a corpora- 
 tion are not the same thing as the property 'which that corporation 
 owns. 
 
 You may say, in one sense, that the property is a security for the 
 value of those shares. The value of those shares in the market, 
 which, observe, are immediately transferable, may depend upon the 
 solvency of the company, the amount of property it possesses, and its 
 chance of carrying on a profitable business. To say that the shares 
 and debentures are part of that property seems to me to be a com- 
 plete confusion of terms. Suppose the case, which I put d.uring the 
 argument of a sale of real estate, and the whole of the purchase- 
 money not to be paid at once in cash, but to be secured on mortgage 
 on that real estate ; and, if you like, in order to make the analogy 
 perfect, suppose the purchaser had no other property than that prop- 
 erty, would the transaction be the less a sale for that reason ? Still the 
 consideration given would be a certain amount of cash which would 
 be left on the security of the estate ; but I have never yet heard that 
 because the whole of the purchase-money upon a sale of real estate 
 was left on mortgage of the real estate that for that reason the trans- 
 action ceased to be, or was prevented from being, a sale. Yet, really, 
 that is what the argument in this case comes to. I confess I am not 
 able to agree with it. Nothing else was suggested which should pre- 
 vent this transaction from being a sale, and it seems to me clearly to 
 be, under the words of this statute, "a conveyance on sale" for a con- 
 sideration which, if not money, at least is money's worth. I, there- 
 fore, with all deference to Cave, J., think that his decision must be 
 reversed and the appeal allowed. 
 
 A. L. SMITH, L. J. The question in this case is whether the in- 
 strument of November 27, 1891, is a conveyance or transfer on sale 
 of any of the property mentioned under the second head "convey- 
 ance or transfer" in the schedule to the stamp act of 1870. 
 
 Now, in order to find out what is, or is not, a conveyance or trans- 
 fer on sale of any property in that second head of the schedule, I 
 must refer to sections 70 and 71 of the act. And, reading both these sec- 
 tions together, it seems to me that the term "conveyance on sale" in- 
 cludes every instrument whereby any property, upon the sale thereof, 
 is transferred to or vested in the purchaser in consideration of any 
 stock or marketable security. That is the definition. 
 
 First of all, then, is this an instrument whereby any property is 
 transferred to or vested in the purchaser? I beg to say yes. It is an 
 instrument upon the face of which the actual land of the vendors, 
 and the trade-marks which are their property, are transferred to a 
 limited company. I do not think that this is disputed, and it does not
 
 64 FOSTER & SONS V. THE COMMISSIONERS. 12 
 
 appear to me to be disputed so far, in the judgment of my brother 
 Cave : but what he says is that this is not an instrument whereby any 
 property, upon the sale thereof, is transferred. The real pith of his 
 judgment is that the vendors and vendees are the same persons that 
 the agreement as regards the sale was carried out by the members of 
 the old firm before any company limited came into existence, and that 
 inasmuch as they are the same persons now as then, there is no sale at 
 all; and, therefore, there is no instrument whereby any property upon 
 the sale thereof is transferred. I must here respectfully differ with 
 my brother Cave. It seems to me that the company limited are not 
 the same persons as the eight members of the old firm they are dif- 
 ferent altogether. It was admitted by Mr. Finlay in argument, 
 though he entirely took away the ground from under my brother 
 Cave's feet when he said so, that the company limited could main- 
 tain a suit for specific performance against the old partners. If 
 that is so, how can they be the same persons. This really shows that 
 they are not the same persons. It is here that I disagree with my 
 brother Cave. 
 
 The respondents also contend that there was no consideration. We 
 must read the two sections together. Section 70 enacts that: "The 
 term 'conveyance on sale' includes every instrument whereby any 
 property, upon the sale thereof, is transferred to or vested in the pur- 
 chaser." Then section 71 implies that it may be in consideration of any 
 stock or marketable security. The land and the trade-marks are 
 transferred by this instrument from the eight partners who were the 
 old firm to the new company limited. The land and trade-marks 
 are transferred by this instrument in consideration of what? In con- 
 sideration of stock or marketable securities, which undoubtedly are 
 not the same things as the land and trade-marks themselves, though 
 they may be charges upon the land and trade-marks which are con- 
 veyed. It seems to me that it is untrue to say that in this transaction 
 there has been no consideration passing from the vendee to the vendor. 
 Although charges upon the land and the trade-marks, the considera- 
 tion comes within the very terms of section 71 itself "any stock or 
 marketable security." 
 
 For these reasons I prefer the judgment of my brother Wright to 
 that of my brother Cave. 
 
 Appeal allowed. 
 
 Note. See also Gordon v. Preston, 1 Watts (Pa.) 386; Polleys v. Insurance 
 Co., 14 Maine 141 ; Pope v. Brandon, 2 Stew. (Ala.) 401 ; Lexington Life, F. & 
 M. Ins. Co. v. Page, 17 B. Mon. (Ky.) 412; Moore & Handley Hardware Co. 
 v. Towers, 87 Ala. 206, 13 Am. St. 23; Davis v. Creamery Co., 48 Neb. 471, 
 67 N. W. 436; 1900, Andres v. Morgan, 62 O. S. 236, 78 Am. St. R. 712.
 
 'TV/a 
 
 13 THE CORPORATION AS A PERSON. 65 
 
 Sec. 13. Same. (4) Or to contracts between the members them- 
 selves. 
 
 MORRIS SELLERS v. HOWARD GREER. 1 
 1898. IN THE SUPREME COURT OF ILLINOIS. 172 Illinois 549-558. 
 
 Appeal from the appellate court for the first district, heard in that 
 court on appeal from the superior court of Cook county, the Hon. 
 Theodore Brentano, Judge, presiding. 
 
 This was a bill for specific performance, brought by Howard Greer 
 against Morris Sellers, in the superior court of Cook county. The 
 cause proceeded to a hearing on the pleadings and evidence, and the 
 court entered a decree dismissing the bill. To reverse the decree, 
 Greer appealed to the appellate court, where the decree was reversed 
 and the cause remanded for the purpose of allowing Greer to recover 
 such damages as he may have sustained on account of the failure of 
 Sellers to perform the contract. To reverse the judgment of the ap- 
 pellate court, Sellers appealed to this court. 
 
 Upon looking into the record it appears that Morris Sellers and 
 Howard Greer had been associated together in the business of manu- 
 facturing railroad supplies for several years prior to 1891. In June, 
 1891, they formed a corporation under the laws of this state, and 
 adopted the name of Morris Sellers & Co., incorporated. The capi- 
 tal stock of the corporation was fixed at $100,000, each share being 
 of the par value of $100, and 499 shares were subscribed for and 
 owned by Morris Sellers and Howard Greer, respectively, each own- 
 ing that number of shares from the formation of the corporation to 
 the time of filing the bill. The remaining two shares were owned by 
 John M. Sellers and Paul E. Greer, who were sons of said principal 
 stockholders, each owning one share. No money was paid by any of 
 the stockholders for their stock. The 500 shares belonging to Sellers 
 and his son were paid for by turning over the plant and their interest 
 in certain patents to the corporation ; and the 500 shares issued to the 
 Greers were paid for by turning over their interest in certain patents 
 controlled by them. All four of the above named parties were stock- 
 holders and directors. Morris Sellers acted as president and treas- 
 urer and had charge of the office and financial department of the con- 
 cern. Howard Greer was secretary and manager or superintendent, 
 and had charge of the factory and manufacturing department of the 
 business. 
 
 After the organization of the corporation it did a fair business, and 
 its management and success seemed to have been satisfactory to the 
 
 of the opinion relating to specific performance of the contract is 
 omitted. 
 
 5 WIL. CASES.
 
 66 SELLERS V. GREEK. 13 
 
 parties interested until the latter part of 1894, when trouble arose be- 
 tween the two principal stockholders in regard to the management of 
 the business. Greer made an offer to purchase the Sellers interest, 
 but the offer was not accepted. Negotiations continued, however, 
 between the parties until September 4, 1894, when Morris Sellers 
 made a written proposition to buy out Greer. The proposition was 
 written and executed by Morris Sellers and by him delivered to Greer. 
 It was as follows : 
 
 "Outline of proposition between Howard Greer and Morris Sellers : 
 Greer to take all of the Greer patents and all of the special machinery 
 attached to punching machines ; all other appliances belonging to the 
 making of spikes, he surrendering all of his stock in M. S. & Co., 
 and to furnish M. S. & Co. a complete set of templates for splices; 
 M. S. & Co. to loan machine No. 4 for six mo. and pay Howard 
 Greer $i ,800 toward a new machine for cutting spikes ; Howard Greer 
 to fill all of the present orders so far as the material now on hand will 
 complete. This agreement to be put in proper form at as early a date 
 as possible, pending the return of the company's attorney to draw up 
 the necessary releases. MORRIS SELLERS. 
 
 "Tuesday, September 4, 1894." 
 
 The bill alleged and the evidence tended to prove that the Greer 
 mentioned in the proposition was appellee, and the letters "M. S. & 
 Co." meant and referred to the corporation known as Morris Sel- 
 lers & Co. 
 
 Mr. JUSTICE CRAIG delivered the opinion of the court. 
 
 The two following grounds are relied upon by counsel for appel- 
 lant in the argument to reverse the judgment of the appellate court: 
 "We claim, firstly, that the proposition is not a contract binding upon 
 appellee or upon appellant ; that it lacks mutuality ; that the subject- 
 matter was the property of a corporation, and not of either of the par- 
 ties named in the proposition ; that appellee is in nowise bound, and so 
 acted as not to legally bind himself in terms to said proposition ; that 
 it was made under such circumstances that it was not, and was not 
 intended to be, a complete or binding contract or agreement upon 
 either appellant or appellee; hence, its specific enforcement was not 
 only impossible, but if attempted by way of assessment of dam- 
 ages upon appellant, as the appellate court seeks to do, would con- 
 travene equitable principles. Secondly, that if all these points are 
 negatived, appellee has yet barred himself of all relief in equity by 
 his own inequitable conduct." 
 
 It will be observed that appellee did not sign the contract, and 
 hence it is contended that the contract is not mutual. It appears, 
 however, that the contract was delivered by Morris Sellers, appellant, 
 to appellee, on the day it was executed, and appellee accepted the 
 contract and agreed to its terms and conditions. The acceptance of 
 the contract by appellee assenting to its terms, holding it and acting 
 upon it as a valid instrument, may be regarded as equivalent to its 
 formal execution on his part, as held by this court in Johnson v. 
 Dodge, 17 111. 433, and Vogel v. Pekoe, 157 111. 339.
 
 13 THE CORPORATION AS A PERSON. 6/ 
 
 But it is said the subject-matter of the contract was the property of 
 a corporation, and not of either 6f the parties named therein, and as 
 the corporation never executed or ratified the contract it can not be 
 enforced in a court of equity. Of the 1,000 shares of capital stock 
 of the corporation Greer and Sellers owned equally the entire amount 
 except two shares, which were held in the names of the respective 
 sons of the two parties. These sons never paid anything for the stock 
 placed in their names, and were mere nominal shareholders, and the 
 only inference to be drawn from all the evidence is, that the two 
 shares were placed in their names in order that the concern might 
 have a sufficient number of stockholders to make up a board of di- 
 rectors. In the management of the affairs of the concern, whatever 
 was done by Greer was assented to by his son, and whatever action 
 was taken by Sellers was approved by his son. As between appellant 
 and appellee they may be regarded as owners of the property named 
 in the contract, and any contract which they may have made in re- 
 gard to the property may, as between them, be enforced in a court of 
 equity. 
 
 But it is said the proposition was not intended to be a complete and 
 binding contract. There is nothing appearing on the face of the con- 
 tract, nor is there anything in the evidence introduced on the hearing, 
 which will sustain that position. The contract is definite and specific 
 in regard to what was to be done by each of the parties. By the con- 
 tract Greer was to do three things : First, he was to surrender all of 
 his stock in the Morris Sellers & Co. establishment; second, he was 
 to furnish a complete set of templates for splices ; third, he was to fill 
 all of the present orders, so far as the material then on hand would 
 permit. From the terms of the contract there could be no uncertainty 
 or doubt in regard to what Greer was required to do in order to com- 
 ply with the contract. As to Sellers, he was required by the contract 
 to deliver over to Greer all of the Greer patents, and what was meant 
 by Greer patents was well understand by both parties. 
 
 It is true that Morris Sellers and Howard Greer owned all of the 
 stock of the corporation, except two shares, which belonged to their 
 sons. But did this fact confer upon them, or either of them, the 
 power to sell the corporate property? It is conceded that the patents 
 and all the other property named in the contract in question belonged 
 to the corporation Morris Sellers & Co. , and the question presented 
 is whether Morris Sellers and Howard Greer, two of the stockhold- 
 ers, without the consent or authority of the corporation Morris Sellers 
 & Co., had the right to divide the corporate property between them- 
 selves, or to sell it, as was attempted to be done by the contract in 
 question. A corporation is an artificial being created by law. clothed 
 with certain powers. It acts through its board of directors and 
 officers. Its property is not subject to the control or disposition of 
 its members or stockholders. They have no power to sell or encum- 
 ber the corporate property. A reference to a few authorities will 
 fully sustain what has been said. 
 
 In Cook on Stockholders (3d ed., 709), it is said: "The
 
 68 SELLERS V. GREEK. IJ 
 
 stockholders can not enter into contracts with third persons. Con- 
 tracts between the corporation and third persons must be entered into* 
 by the directors and not by the stockholders. The corporation, in 
 such matters, is represented by the former and not by the latter. Such 
 is one of the main objects of corporate existence. To the directors 
 is given the management and formation of corporate contracts. The 
 stockholders can not, in meeting assembled, bind the corporation by 
 their contracts in its behalf. Although one person owns a majority of 
 the stock, or all of it, or all but two shares, he does not, in conse- 
 quence thereof, acquire the right to act for the corporation, or as the 
 corporation, independently of the directors. One person may own 
 all the stock, and yet the existence, relations and business methods of 
 the corporation continue. A single stockholder can not make a con- 
 tract for and in the name of the corporation which shall have any 
 binding force or validity, except by subsequent ratification or adoption 
 in the regular manner." 
 
 In Allemong v. Simmons, 124 Ind. 199, it was attempted to hold 
 a corporation liable on a contract made by one Crawford, who was a 
 director and owner of five-sixths of the stock of the corporation. In 
 disposing of the question the court said: "It is true, Crawford was 
 one of the directors of the company and held a majority of the stock ; 
 but the existence of these facts confers upon him no power to make 
 contract for the corporation. It could only be bound by the action of 
 its board of directors. The board could have conferred upon Craw- 
 ford this power, but there is no evidence that it had done so. Craw- 
 ford, as one of the directors, had no more authority or power than 
 any other director. The board consisted of five members, and three 
 constituted a quorum. Less than three could make no binding con- 
 tract for the corporation. * * * The contract which Simmons 
 and Aleshire executed with Crawford was the mere personal engage- 
 ment of Crawford with the said parties." 
 
 In Humphrey v. McKissock, 140 U. S. 304, the validity of the 
 action of all the stockholders of a corporation in transferring its prop- 
 erty without corporate action arose, and in disposing of the case the 
 court said: "Both the commissioner and the court in confirming 
 his report and entering the decree mentioned, seem to have con- 
 founded the ownership of stock in a corporation with ownership of 
 its property. But nothing is more distinct than the two rights. The 
 ownership of one confers no ownership of the other. The property 
 of a corporation is not subject to the control of individual members, 
 whether acting separately or jointly They can neither encumber or 
 transfer that property, nor authorize others to do so. The corpora- 
 tion the artificial being created holds the property, and alone can 
 mortgage or transfer it; and the corporation acts only through its 
 officers subject to the conditions prescribed by law. 
 
 In Smith v. Hurd, 12 Mete. 385, the relations of stockholders to 
 the rights and property of a banking corporation are stated with his 
 usual clearness and precision by Chief Justice Shaw, speaking for 
 the supreme court of Massachusetts, and the same doctrine applies to
 
 13 THE CORPORATION AS A PERSON. 69 
 
 the relations of stockholders in all business corporations. Said the 
 chief justice; 'The individual members of a corporation, whether 
 they shall all join or each act severally, have no right or power to inter- 
 meddle with the property or concerns of the bank, or call any officer, 
 agent or servant to account or discharge them from any liability. 
 Should all of the stockholders join in a power of attorney to any one, 
 he could not take possession of any real or personal estate, any se- 
 curity or chose of action, could not collect any debt, or discharge a 
 claim, or release damage arising from any default, simply because 
 they are not the legal owners of the property, and damage done to 
 -Stick property is not an injury to them. Their rights and their 
 powers* are limited and well defined.' ' 
 
 In this court, in Hopkins v. Roseclare Lead Co., 72 111. 373, the 
 right of a stockholder of a corporation to transfer certain leases be- 
 longing to the corporation arose, and in disposing of the question the 
 court' said (p. 379): "It is insisted that La Grave had no power to 
 make the sale of the leases, to transfer the control of the suit or to sell 
 the twenty acres of land, as they were all owned by the company. He 
 was but a stockholder, and as such had no power to make the sale. 
 He, although owning the majority of the stock, could not act for the 
 company unless specially authorized. He could, no doubt, control 
 the action of the company by the election of its officers, but still the 
 company could only act through its officers or by expressly delegating 
 power to others, whether a stockholder or other persons." See, also, 
 England v. Dearborn, 141 Mass. 590; Newton Manf. Co. v. White, 
 42 Ga. 148 ; Russell v. McLellan, 14 Pick. 63. 
 
 From what has been said it is apparent that Morris Sellers, al- 
 though he owned one-half of the capital stock of the corporation, had 
 no right to sell the corporate property, and any contract he may have 
 made would not be obligatory on the corporation. The corporation, 
 Morris Sellers & Co., the owner of the letters-patent and other prop- 
 erty described in the contract, was not made a party to the bill, and 
 no decree could have been obtained against it if it had been made a 
 party, for the reason it never executed the contract, nor did it ratify 
 the contract after it was made, but, on the other hand, expressly re- 
 fused to do so on application of Greer to its board of directors. The 
 bill prayed that Sellers might be compelled to convey the letters-pat- 
 ent named in the contract to Greer. He had no title, and hence could 
 not make a conveyance, and any decree that might have been ren- 
 dered would have been nugatory. In a bill for specific performance 
 the contract must be of such a character that the court is able to make 
 an efficient decree and enforce it when made. 3 Pomeroy's Eq. Jur., 
 1405. * * * 
 
 Appellee not being entitled to a decree for a specific performance, 
 the next question presented is, did the court err in refusing to retain 
 the bill for the purpose of allowing appellee to recover damages for 
 the failure of Sellers to perform the contract ? * * * 
 
 In Kennedy v. Hazleton, 128 U. S. 667, it was held that specific 
 performance can not be decreed of an agreement to convey property
 
 7<D WILLIAMSON V. SMOOT. 14 
 
 which has no existence or to which the defendant has no title, and if 
 the want of title was known to the plaintiff at the time of beginning 
 suit, the bill would not be retained for the assessment of damages. 
 The same doctrine is declared in Hurlbut v. Kantzler, 112 111. 482. 
 Here, Greer, the appellee, knew when he accepted the contract from 
 Sellers that the property named in the contract was owned by Morris 
 Sellers & Co., a corporation. He also knew that Sellers had no 
 authority to sell the property, and, knowing these facts, he could not 
 maintain a bill for specific performance, nor would the bill be retained 
 for an assessment of damages for a breach of the contract. 
 
 The judgment of the appellate court will be reversed and the decree 
 of the superior court of Cook county will be affirmed. 
 
 Judgment reversed. 
 
 Sec. 14. Same. (5) Also as to suits by or against third per- 
 sons. 
 
 WILLIAMSON ET AL., SYNDICS, v. SMOOT ET AL. ] 
 
 1819. IN THE SUPREME COURT OF LOUISIANA. 7 Martin (La.) 
 3133, or vol. 7 of Louisiana Term Reports. 
 
 Appeal from the court of the first district. 
 
 MATTHEWS, J., delivered the opinion of the court. The plaintiffs 
 having caused an attachment to be levied on the steamboat Alabama, 
 the St. Stephens Steamboat Company intervened in their corporate 
 capacity, and claimed her as their property. The intervening party 
 are a body politic, created by an act of the legislature of the territory 
 of Alabama, the capital stock of which is divided into shares of a cer- 
 tain amount, and Smoot, the defendant, owns ten of them, subscribed 
 for by him. 
 
 [The questions to be decided are * * * 2. Can the shares or 
 stock of any individual stockholder be legally attached ?] * * * 
 
 II. The existence of the claimants being recognized as a body cor- 
 porate, and it being admitted that the boat attached belongs to them 
 as a part of their common stock, it is clear that Smoot does not pos- 
 sess such certain and distinct individual property in it as to make his 
 interest attachable. The estate and rights of a corporation belong so 
 completely to the body that none of the individuals 'who compose it 
 has any right of ownership in them, nor can dispose of any part of 
 them. Civ. Code, 88, art. n. 
 
 The court is of opinion that the district court erred in disallowing 
 the claim of the company. 
 
 It is, therefore, ordered, adjudged and decreed that the judgment 
 be annulled, avoided and reversed, and that the attachment of the 
 
 1 Part of the opinion relating to the recognition of a foreign corporation by a 
 state is omitted.
 
 15 THE CORPORATION AS A PERSON. 7 1 
 
 plaintiff and appellant be quashed, so far as it relates to the said 
 steamboat, the Alabama, and that she be released therefrom. 
 
 Note. 1. Evidence. Admissions of shareholders are not admissions of 
 the corporation. Fairfield County Turnpike Co. v. Thorp, 13 Conn. 173; Pol- 
 leys v. Ocean Ins. Co., 2 Shep. (Maine) 14J ; Osgood v. Manhattan Bank, 3 
 Cow. (N. Y.) 612; Hartford Bank v. Hart, 3 Day (Conn.) 493; Mayor of Lon- 
 don v. Long, 1 Campb. 22. 
 
 2. Judge, by holding stock, is disqualified to try a case in which the 
 corporation is a party. Bonham's Case, 8 Rep. 226; Day v. Savadge, Hob. 
 85, 87; Washington Ins. Co. v. Price, 1 Hop. Ch. (N. Y.) 1 ; Gregory v. Cleve- 
 land, etc., R. Co., 4 Ohio St. 675; Northampton v. Smith, 11 Met. (Mass.) 
 390; Newcome v. Light, 58 Texas 141 ; Dimes v. Grand Junction Canal, 3 H. 
 L. Gas. 759; State v. Young, 31 Fla. 594, 34 Am. St. 41. But see Stewart v. 
 Mech. & F. Bank, 19 Johns. (N. Y.) 501 ; Searsburgh Turnpike Co. v. Cutter, 
 6 Vt. 315. 
 
 3. Juror, who holds stock can not try a case in which the corporation 
 is a party. Page v. Contoocook V. R. Co., 1 Fost. (21 N. H.) 438; Peninsular 
 R. Co. v. Howard, 20 Mich. 18; Michigan Air Line R. Co. v. Barnes, 40 Mich. 
 383; Georgia A. Co. v. Hart, 60 Ga. 550; Butler v. Glens, etc., R. Co., 121 N. 
 Y. 112; McLaughlin v. Louisville Elec. L. Co., 100 Ky. 173. 
 
 4. Witness. At common law a shareholder was disqualified, because of 
 interest, to be a witness for the corporation. Porter v. Bank, etc., 19 Vt. 410; 
 McAuley v. The York, etc., 6Cal. 80; Mokelumne, etc., Co. v. Woodbury, 14 
 Cal. 265. 
 
 5. Sheriff, though a stockholder, is not disqualified to serve process on 
 the corporation. Merchants' Bank v. Cook, 4 Pick. (Mass.) 405; Adams v. 
 Wiscasset Bank, 1 Greenleaf (Maine) 361, 10 Am. Dec. 88; Barker v. Rem- 
 ick, 43 N. H. 235. 
 
 Sec. 15. Same. (6) Or as to suits between it and its members. 
 
 1430. "If mayor and commonalty disseise one of the commonalty 
 he shall have assise against them, for they are as several persons, viz., 
 body politic and body natural. Per Paston, Br. Corporations, pi. 24, 
 cites 8 H. VI, i, 14," as given in 6 Viner's Abr., Corporations, 2, 
 p. 304. 
 
 WARING v. CATAWBA COMPANY. 1 
 
 1797. IN THE SUPERIOR COURTS OF SOUTH CAROLINA. 2 Bay 
 (South Carolina) 109-111. 
 
 Assumpsit for goods sold, and for work and labor, etc. 
 
 Plea in abatement. 
 
 This case came before the court upon a plea in abatement, which 
 pleaded that plaintiff was himself a member of the company, and, 
 therefore, could not maintain any action against it in his individual 
 capacity. 
 
 Mr. Trezevant, for the plaintiff, argued that there was a wide dif- 
 ference between a copartnership in trade and a corporation. Copart- 
 ners, he admitted, must sue and be sued jointly; that they were jointly 
 and severally liable, etc. But a corporation (as in the present case) 
 
 1 Part of arguments omitted.
 
 72 NOTES TO ARTICLE II. 15 
 
 must be sued in its corporate name ; that the private property of its 
 members were not liable, only the corporate property, so that there 
 was a wide difference between a corporation and a copartnership, 
 both as to the mode of bringing an action and as to the effect of any 
 judgment or decree against them. * * * 
 
 The attorney-general, contra, said this company ought to be con- 
 sidered as an association for gain, or the emolument of its members, 
 and therefore in law should only be considered as a kind of copartner- 
 ship, and not as a public corporation. * * * 
 
 The court, after hearing the arguments, overruled the plea in abate- 
 ment, as containing principles subversive of justice ; but they observed 
 that the two cases of Bourdeaux and Drayton against The Santee Canal 
 Company had settled this point, as they had both been allowed by this 
 court to maintain their actions for their salaries, etc., against the com- 
 pany, as well as the cases respecting the other public societies, men- 
 tioned in the argument. 
 
 The plaintiff was then allowed to go on and prove his debt to a 
 jury. 
 
 Present, Burke, Grimke and Bay; but as Judge Grimke was a 
 member of the company, he declined giving an opinion. 
 
 Note. See Culbertson v. Navigation Co., Fed. Cas. 3464; Rogers v. Society, 
 19 Vt. 187. 
 
 NOTES TO ARTICLE II. 
 
 /\ 
 
 1. Ancient ideas. The idea of an artificial person seems as old as our race. 
 In fact the underlying idea of a person is not that it is an individual human 
 being, but rather that part or character which one sustains in the world. The 
 word comes from the Latin, meaning "a mask for actors," or "the character 
 represented by such mask." See Century Dictionary, Austin's Jurisprudence 
 (Campbell's edition), 438; Holland's Jurisprudence, p. 65 (edition of 1880). 
 This being the primary meaning of the word, it was immaterial whether this 
 person was composed of a single human being, or many, or not even a human 
 being at all, but only a thing or group of things, provided they or it had the 
 same status, or was entitled to the same rights or subject to the same duties 
 as any single human being was. So, too, the whole hierarchy of gods and 
 goddesses that peopled the "heavens and earth" of 'the ancient world was 
 nothing but personificat ions of the forces of nature. Morawetz (Private Cor- 
 porations, 1, p. 2), says: "The conception of a number of individuals as a 
 corporate or collective entity occurs in the earliest stages of human develop- 
 ment, and is essential to many of the most ordinary processes of thought. Thus 
 the existence of tribes, village communities, families, clans and nations im- 
 plies a conception of these several bodies of individuals as entities having 
 corporate rights and attributes." The oldest corporate body or artificial per- 
 son seems to have been the family. Hearn, in "The Aryan Household," pp. 
 64, 5, 6, thus characterizes the ancient family : "It formed an organized per- 
 manent body, distinct from its individual members, owning property, and 
 having other rights and duties of its own. * * * It was a permanent as- 
 sociation. It was not intended to pass away and be reformed like the genera- 
 tions of men. It was constructed and meant to endure forever. It was, in 
 our technical language, a corporation. It had perpetual succession. It in- 
 cluded in its members both the living and the dead. These members had 
 various degrees of rank ; but the whole number, taken collectively, formed 
 one well defined and distinct individuality. Of this corporate entity, the house 
 father for the time being was the head, or, as we might say, the managing di-
 
 THE CORPORATION AS A PERSON. 73 
 
 rector." Mr. Hearn cites the following authorities: Maine's Early History 
 of Institutions, p. 78 (the Hindu family); K. O. Miiller's Dorians, vol. 2, 
 p. 240 (the Greek family ); M. Ortolan, History of Roman Law, p. 577 (the 
 Eoman family) ; M. de Laveleye, De la Propriety, p. 23 (the Slav family); 
 the Editor of Ancient Laws of Ireland, Int., p. 79 (the Irish family) ; Maine's 
 Ancient Law, p. 143 (the German family). 
 
 2. In the Roman civil law. Although corporations do not seem to be 
 mentioned in the Institutes of Gaius (c. 180 A. D.) they are in the Institutes 
 of Justinian and there are many provisions in the digests (A. D. 533) relat- 
 ing to them ; the ideas above expressed were embodied in the Eoman law. 
 "Every being capable of having and being subject to rights was called in Ro- 
 man law a persona. Thus, not only was the individual citizen when looked 
 at as having this capacity, a persona, but also corporations and public bodies. 
 * * * The word personce has also another sense. It was used not only for 
 the being who had the capacity of enjoying rights and fulfilling duties, but 
 also for the different characters or parts in which this capacity showed itself; 
 or to borrow the metaphor suggested by the etymology of the word, for the 
 different masks or faces which the actor wore in playing his part in the 
 drama of civic and social life. Thus, for instance, the same man might have 
 the persona patris, or tutoris, or mariti; that is, might be regarded in his char- 
 acter of father, tutor, or husband. * * * Status (legal standing) is the cor- 
 relative of persona. Status is the legal capacity of a persona ; persona is that 
 which has status." Note of T. C. Sandars in Hammond's Edition of San- 
 dars' Justinian's Institutes. De Jure Personarum, p. 76. See, also, Mack- 
 eldey, Handbook of Roman Law (Dropsie's Translation, 1883, sections 128, 
 129, 155.) 
 
 "Auniversitas, or corporate body, exists when a number of persons are so 
 united that the law takes no notice of their separate existence, but recognizes 
 them only under a common name, which is not the name of any one of them. 
 (Digest 3, 4, 2; 3, 4, 7, 1). All the members are considered in law as a sin- 
 gle unit or being. (Digest 46, 1, 22.) Such units are sometimes called ficti- 
 tious persons, because the corporate body, as such, may sue and be sued, re- 
 ceive or part with property, bind itself or bind others, through some agent or 
 syndic (Digests, 4, 1, 1), who acts in the name of the whole, just as any in- 
 dividual may act for himself. (Digest 3, 4, 7, 1.) The chief characteristic of 
 such a body is that it does not necessarily die. (Digest 5, 1, 76.) * * * 
 There were many such corporations in Rome, chiefly connected with trades, 
 such as the guild of bakers, and shipowners, companies of tax-gatherers, 
 companies for working mines of gold, silver, salt, etc. The internal govern- 
 ment of the corporate bodies was in the hands of the members (sodales). 
 Hunter's Roman Law, 2d ed., pp. 314-5. 
 
 Sheldon Amos, in his " History and Principles of the Civil Law of Rome," 
 p. 118, says: "Such a conception (as that of legal persons) had thoroughly 
 penetrated the fabric of Roman law and society long before the time of Jus- 
 tinian, and the appropriate legal consequences had worked themselves out 
 with considerable exactness. The conception, indeed, was extended for pur- 
 poses of legal convenience, even beyond the original sense of an assemblage 
 of persons, determinate or indeterminate, treated as integral unity. The 
 same hypothesis of a legal personality was made in certain cases where no 
 human beings were directly concerned at all, but where it was desired to as- 
 sume, provisionally, a fixed center, to which a group of rights and duties 
 might for some purposes be referred. Thus, in the case of an inheritance on 
 which the heir had not yet entered, it was convenient for the moment to call 
 it a person, and to estimate the rights and duties that would attach to a person 
 so situated than to be making constant references to all the innumerable 
 human beings who might be actually interested in the succession." Taylor, 
 in his work on Corporations, ch. 1, takes a slightly different view, and holds 
 that at least in the early period of the Roman law the idea of the artificial 
 personality of a corporation, if it existed at all, was in a very rudimentary 
 shape, though he admits it was present in the later periods, as evidenced by 
 such provisions as, "If anything is owed to a corporation, it is not owed to
 
 i 
 
 74 NOTES TO ARTICLE II. 
 
 any single [member] ; nor what a corporation owes do the single [mem- 
 bers] owe." ["Si quid universitati debetur, singulis non debetur; nee quod 
 debet universitas singuli debent." Digest iii, 4, lex 7, 1.] And in the 
 notes (p. 3) he cites Hiring, to the effect that the members of a corpora- 
 tion were the true subjects of corporate rights and liabilities, at least among 
 themselves, and the corporation was only the form assumed toward outsiders. 
 Gheist, etc., iii, Theil., pp. 219, 220, 343-4. So, too, Pollock and Maitland 
 say: "It would be a great mistake to suppose that what we are wont to con- 
 sider the true theory of universitates lay so plainly written on the face of the 
 Roman law books that no one could read them attentively without grasping 
 it. The glossators did not grasp it. Bracton's master, Azo, had not grasped 
 it." History of English Law, vol. 1, p. 477. 
 
 3. In the Canon law. The personification of an institution, such as The 
 Church, was one of the earliest and most persistent ideas of the early Chris- 
 tian world; so, too, the blending of many members into one body was an early 
 Christian conception. "The Church of God." Acts xx, 28; 1 Cor. i,l and 2; 
 Rev. ii, 7. "He is the head of the body, the church." Colos. i, 18; Eph. i,22, 
 23. "For as the body is one and hath many members, and all the members 
 of that one body, being many are one body ; so, also, is Christ * * * Now 
 ye are the body of Christ, and members in particular." 1 Cor. xii, 12, 27. 
 Pollock and Maitland, History of English Law, vol. 1, p. 489, thus summa- 
 rises the history on this point: "Within the ecclesiastical sphere there have 
 been 'juristic persons' from an extremely remote time. Confining our view 
 to England, we may say that they have existed ever since ^Ethelberht sanc- 
 tioned God's property with a twelve-fold hot, and gave lands to St. Andrew. 
 God and the saints, it is needless to say, were not regarded as imaginary per- 
 sons ; still their property had to be administered for them by 'the church,' and 
 the personality of the church is more purely juristic. A personified building 
 gives way to a personified institution or a personified purpose. Then the 
 worldly business of the church is often conducted for it, not by a single man, 
 but by a group of men acting in common ; still these men are not the eccle- 
 sia ; no, not though they be all taken together. Thus, canonists have obtained 
 a foundation of fact and practical law for their theories. They see and 
 proclaim that the universitas is persona ficta, not found in the world of sense, 
 but created by law, that it is invisible, immortal, a body that has no body and 
 no soul. It can not sin, it can not be excommunicated, it can not commit a 
 crime, it can not be punished ; very probably it can not commit a delict. 
 These theories are very generally worked out in the thirteenth and the 
 following centuries ; they bear abundant fruit in our latest Year Books. To 
 'the church,' modern law owes its conception of a juristic person, and the 
 clear line that it draws between 'the corporation aggregate,' and the sum of 
 its members." In fact it has been said that Pope Innocent IV (A. D. 1243- 
 1255) was the father of the modern learning of corporations. Ib., p. 477. 
 
 4. In the early common law. The personification of the church, as having 
 rights, was a common idea in the Saxon laws. "The property of God and 
 the church twelve-fold." Laws of JEthelberht , 1 (c. 600 A. D.). "If any 
 carry off a nun from a minster * * * let him pay 120 shillings, half to 
 the king and half to the bishop and to the church-hlaford," which Stearns 
 (Germs and Developments of Laws of England, n. 1, p. 78), translates 
 "church corporation," though the word is more frequently rendered tribute. 
 See Laws of Alfred, 8 (c. 890 A. D.). Under the Laws of Edward the Confessor 
 (c. 1043-1066), there was a peace of the church as there was of the king (1,6); 
 lands were held of the church; it had fiefs, and it was entitled to tithes (3, 
 4,7). 
 
 These provisions of the laws of Edward were also in the confirmation of 
 them by William the Conqueror. London traced some of its liberties to a 
 charter granted by the Conqueror, sealed with hisseal, "bitten with his tooth 
 in token of sooth." Coke says he had seen a "charter made by Henry I 
 (1100-1135), by which he granted them gildam mercatorum, and a confirma- 
 tion by Henry II (1154V-1189), by which charters they were incorporated." 
 10 Rep. 30. Though corporations seem to have been in existence from the
 
 THE CORPORATION AS A PERSON. 75 
 
 time of the Conqueror, Bracton's ideas (c. 1263) were not clear, and were 
 taken almost wholly from the Roman law. He says: "Things belong to 
 corporate bodies, and not to individuals, which are in cities, such as theaters, 
 stadia, etc., * * * such as lands and serfs, which are said to belong to 
 cities because they so belong to all the citizens as not to belong to any one 
 person by himself." F. 8, 1 Twiss's Translation 59. This is substantially 
 taken from Justinian's Institutes, Bk. 2, T. 1, 6. In f. 1716, he speaks 
 of the "body corporate of the realm." [Universitas regni.] 3 Twiss 93. In 
 f. 1806. (3 Twiss 151), he adds race grounds, walls and gates of cities, to 
 corporate property. From what he says, f. 102 (2 Twiss 133), f. 2286, (3 
 Twiss 535), it seems "all may complain or one (only) under the name of the 
 corporation ( Universitatis) . On f. 374 (5 Twiss, pp. 447-449), he says: "If 
 an abbot, or prior, or other collegiate men claim land, etc., in the name of 
 their church upon the seysine of their predecessors, * * * the declara- 
 tion should not be from abbot to abbot, or from prior to prior, nor should 
 there be mention of the intermediate abbots or priors, because in colleges and 
 in chapters the same corporation always remains, although they all die suc- 
 cessively and others are substituted in their place, as may be said of flocks of 
 sheep, where there is always the same flock, although all the sheep or heads 
 successively depart, nor does any individual of them succeed to another by 
 right of succession, in such manner that the right descends by inheritance 
 from one to another, because the right always pertains to the church, and 
 remains with the church, according to what may be seen in the charters of 
 feoffment of religious orders, * * and accordingly if the abbot or the 
 prior, the monks or the canons successively die, the house remains to eter- 
 nity." This comes very near to the modern idea of the existence of the cor- 
 poration separate and distinct from its members. 
 
 By 1311 a borough is called a "corps." Y. B., 4 Ed. II 103, Gross's Gild 
 Merchant I, 94, note. But "It was really about the reign of Edward III 
 (1327-1377) that the idea of the lay corporation, the lay persona ficta as now 
 understood, was painfully elaborated. The doctrine that there could not be a 
 writ of capias against a "commonalty" was definitely expressed at least as 
 early as 22 Edward III (1349), 22 Ass. 67, and the practice had been in ac- 
 cordance with this doctrine considerably earlier. There is a very curious 
 case at the end of this reign, which shows not only that the lawyers had come 
 to the notion of a "body," afterwards called a "body politic," but also by 
 what road they traveled. They had often been troubled by the question 
 whether something in dispute was appendant or appurtenant to something 
 else, or was a thing by itself and independent, which they called a gross (un 
 gross). It was, for instance, a common subject of argument whether, an 
 advowson was a gross (according to modern phraseology "in gross"), or ap- 
 pendant. By a curious psychological process they realized that what we now 
 call a corporation was "a gross," or something which had an existence per 
 se; and this something they called alternatively " corps." Thus they came to 
 the idea of an individuality composed of the members of a corporation, or, as 
 we might now say, to the idea of a persona flcta. At the same time it was 
 held that the commonalty of a guild which had not been affirmed by a royal 
 charter could not be adjudged to be a body (un corps), capable of purchasing 
 an estate of freehold." See 49 Li. Ass. 8. Introduction by L. O. Pike to Y. 
 B., 16 Ed. Ill, part 1, p. xlvi. Many points turning on or recognizing the 
 artificial personality of a corporation were determined during this reign. In 
 1335 it was held the head of the corporation could be sued by the corpora- 
 tion, as the dean by the chapter of the same church. Y. B., 9 Ed. Ill 456. 
 In 1341 it was held that if a corporation disposes of all its property the cor- 
 poration yet remains. 15 Ass. 10. In 1349, as indicated above, it was said: 
 "The corporation is invisible, incorporeal ; it can not be assaulted, or be 
 beaten or imprisoned ; trespass does not lie against it, for capias nor exigent 
 lies not against a commonalty." 22 Ass. 100, pi. 67. In 1356, "Nor can they 
 commit treason, or be outlawed, or excommunicated, for they have no souls, 
 nor can they appear in person, but by attorney." In 1372, however, it was 
 held "a corporation can commit a trespass." 45 Ed. Ill 2.
 
 76 NOTES TO ARTICLE II. 
 
 In 1375, the taking by the servant of a corporation is a taking by the cor- 
 poration. 48 Ed. Ill 17. In 1376, none but the king can make a corpora- 
 tion. 49 Ed. Ill 4. In 1377, one corporation can be united to another 
 (consolidation?), so as to succeed to the rights of the latter. 50 Ed. Ill 27. 
 Pollock and Maitland (History of English Law, vol. 1, p. 473) place the birth 
 of the corporate idea a little later than indicated above. They say: "If for 
 a moment we take our stand in Edward IV's reign (1461-1483) ** * * we 
 can say that the idea of a corporation is already in the minds of our common 
 lawyers; it may trouble them, this is shown by their frequent discussions 
 about its nature, but still it is there. First we notice that they already have 
 a term for it, namely, 'corporation 1 for which 'corps corporal,' and 'corps 
 politik,' are equivalents." Kent says (2Comm., 270, note e), "the terms 
 corporation and body corporate first appeared in the reign of Henry IV 
 (1399-1413), in any public document." In 1429, it was unsuccessfully 
 contended that when a member and the corporation were sued together, the 
 member was twice sued. Y. B., 8 Hen. VI, f. 1. In 1437, "if a man recovers 
 a debt or damages against a commonalty he shall have execution only against 
 the goods they have in common." Y. B., 16 Hen. VI, Fitz. Abr., Execution 
 pi. 128. In 1441, "a release by all the members of a corporation is not the 
 release of the corporation." Y. B., 19 Hen. VI 64. So too " if all the 
 members of a corporation appear in person to answer a suit against the cor- 
 poration it is not sufficient." Y. B. 19 Hen. VI 80. In 1442, "if all the 
 members, as abbots and monks, die, the corporation is dissolved." Y. B., 20 
 Hen. VI 7, 8. In 1454, "when a city or village is incorporated as bailiff 
 
 and commonalty of , they are by this name a person corporate, an entire 
 
 body." Y. B., 32 Hen. VI 9. In 1461, "a corporation aggregate of sev- 
 eral is invisible, immortal and rests only in intendment and consideration of 
 law, and therefore dean and chapter can not have predecessor nor successor." 
 Y. B. ( 39 Hen. VI 136, 14. In 1470, generally they must act by deed only. 
 Y. B., 9 Ed. IV 59, but in 1479, they can appoint ordinary servants and 
 agents without a seal. Y. B., 18 Ed. IV 8. 
 
 In 1481 corporate bodies are contrasted with unincorporated bodies. Y. B., 
 20 Ed. IV 2. So, too, in this year or the next, a juror was challenged be- 
 cause he was a brother to one of the members of the corporation ; it was 
 answered that the juror was "a stranger to the chapter, for it is a body of such 
 nature that it can have neither brother nor cousin," but conceded that it would 
 have been otherwise if the juror had been brother to the Dean, Y. B., 21 Ed. 
 IV, f . 28, 1 Pollock and Maitland 474. In this year, too, a corporation is called 
 a mere name. Y. B., 21 Ed. IV 13. Perhaps the most interesting case of the 
 time is the one of this year summarized by Pollock and Maitland thus : "Ab- 
 bot, of Huhne, sued mayor, sheriff and commonalty of Norwich, on a bond, 
 and they pleaded that when the bond was made the then abbot had got the 
 then mayor in prison and extorted the bond by duress. The lawyers admit- 
 ted that the corporation itself can not be in prison or suffer duress, and 
 that it would be no defense to urge that when the bond was made some few 
 of the citizens of Norwich were in prison. Counsel said : 'Every body politic 
 is made up of natural men. And as regards what has been said touching its 
 inseverability, I do not admit that, for they allowed that mayor, sheriffs and 
 commonalty make up a single body; here, then, are members, namely the 
 mayor is one member * * * the sheriff another member * * * the 
 third is the commonalty. In this case there is an alleged imprisonment of 
 one of the distinct members named in the title of the corporation, to wit, the 
 mayor, who is the head and (as in the body natural) the principal member 
 L and if one member of the body natural be restrained or beaten, that 
 is a restraint or battery of the whole body.' " Vol. 1, p. 475. Y. B., 21 Ed. 
 IV, f. 7, 12, 27, 67. In 1483, it was held that "if the king makes a general 
 corporation by a certain name, all the incidental powers, as to sue, be sued, 
 purchase and hold land and other property, contract, have a seal, make 
 by-laws, etc., are included." Y. B., 22 Ed. IV, cited in 10 Coke's Rep. 30. 
 
 Littleton, in his Tenures, written about 1481, does not have much to say of 
 corporations, but enough to make it certain that their nature and presence
 
 THE CORPORATION AS A PERSON. 
 
 were pretty well known, and the distinctions between sole and aggregate 
 pretty well recognized. He speaks particularly of "prelates, abbots, priors, 
 deans, or of the parson of a church, or of other bodies politike." Section 
 413. See, also, 133 and 134. And his statements accord with the holdings 
 such as: "Where a bond is made to the Dean of P. and his successors, and it 
 is not said dean and chapter, and his successors, this is good to the executors, 
 and void to the successors. Contra, if it had been to the dean and chapter and 
 his successors; for he has two capacities, viz., "To him and his heirs, and an- 
 other with the corporation." 20 Ed. IV 2 ( 1481). So, "If land be granted to 
 a mayor and commonalty, saying to their successors, they have a fee-simple. 11 
 Hen. VII 12 (1496). In 1501, where a corporation has a head (as a mayor) 
 he may command a thing in person; but a corporation aggregate, which has 
 no head, must give their authority, under theseaZ of the corporation." Y. B., 
 16 Hen. VIII 2. In 1523, all acts of a corporation must be by their name of 
 corporation, and by writing, otherwise it is not the corporate act. As do a tort 
 make a feoff ment, enter into an agreement; yet they may elect a dean, mas- 
 ter or attorney, which are of record. Y. B., 14 Hen. VIII 2, 29. In 1542, 
 corporations aggregate can not do fealty; for a body invisible can not be in 
 person, nor can swear. 33 Hen. VIII, Br., Fealty pi. 15. "A body politick 
 is not contained in the word person." Plowden, f. 177 (1550-1580). In 1585, 
 a corporation consisting of confreres and sisters is dissolved by the death of 
 all the sisters. In 1587, "A corporation is a body politick, consisting of ma- 
 terial bodies, which, joined together, must have a name to do things that con- 
 cern their corporation, or otherwise it is no corporation. Ch. B., in Mariot 
 v. Mascall, And. 206 pi. 238, 29 Eliz. In the argument in this case it was said : 
 "All the natural persons are not the corporation, but are persons of which 
 the corporation consist, but not wholly ; for the name is part also, without 
 which the corporation can not be." And. 210. In 1596, it was contended 
 that an annuity charged against a corporation was gone when the corporation 
 was dissolved, for it is the person charged. 38 Eliz. Viner, Corp. (4, 3) 8. 
 Rochester (Bishop's) Case. 
 
 Coke's idea of a corporation was that of an artificial personality. "The 
 corporation itself is only in abstracto, and rests only in intendment and con- 
 sideration of law." Button's Hospital, 10 Rep. 1, on p. 32. (1613). "Per- 
 sons capable of purchase are of two sorts, persons natural, created of God, and 
 persons incorporate, or politique, created by the policy of man (and, there- 
 fore, they are called bodies politique)." 1 Institutes 2 a. (1628). "It is 
 also called a corporation, or body incorporate, because the persons are made 
 into a body, and are of a capacity to take and grant." Ib. 250 a. Lord Chief 
 Justice Hale classed corporations among persons. The 22d section of 
 Analysis of the Law (c. 1676) is entitled "Concerning persons or bodies politic, 
 i. e., corporations. I have done with the jura personarum naturalium ' 
 and I now come to persons politic, or corporations, that is, bodies created by 
 operation of law." 
 
 5. In the modern law. There can be no doubt as to the influence of the 
 definitions of Blackstone upon our legal ideas, and there can be scarcely less 
 doubt as to the influence of Hale's classification upon that of Blackstone. The 
 latter says: "Persons are divided by the law into either natural or artificial. 
 * * * Artificial are such as are created and devised by human laws for the 
 purposes of society and government, which are called corporations or bodies 
 politic." 1 Comm. *123 (A. D. 1765). On p. *467 he says: "It has been 
 found necessary, when it is for the advantage of the public to have any par- 
 ticular rights on foot and continued, to constitute artificial persons, who may 
 maintain a perpetual succession and enjoy a kind of legal immortality. These 
 artificial persons are called bodies politic, bodies corporate (corpora corporate), 
 or corporations, of which there is a great variety subsisting, for the advance- 
 ment of religion, of learning and of commerce." Hammond shows that parts 
 of this 18th chapter, Book I (containing eighteen small pages), have been 
 quoted, cited or criticised nearly 150 times in reports of cases in the United 
 States. 
 
 Marshall's definition in the Dartmouth College Case, 4 Wheat. (U. S.), p.
 
 78 NOTES TO ARTICLE II. 
 
 518 (A. D. 1819), seems to have come from Coke and the Year Beoks. He 
 says: "A corporation is an artificial being, invisible, intangible and existing 
 only in contemplation of law. Being the mere creature of the law, it possesses 
 only those properties which the charter of its creation confers upon it, either 
 expressly, or as incidental to its very existence. These are such as are sup- 
 posed best to effect the object for which it was created. Among the most 
 important are immortality, and if the expression may be allowed, individual- 
 ity; properties by which a perpetual succession of many persons are con- 
 sidered as the same and may act as a single individual." Although in this 
 case Judge Story seemed to favor the view that a corporation was essentially 
 a collection of individuals (see infra, p. 727), yet he summed up his definition 
 thus: "It is, in short, an artificial person, existing in contemplation of law, 
 and endowed with certain powers and franchises, which, though they must 
 be exercised through the medium of its nat iral members, are yet considered 
 as subsisting in the corporation as distinctly as if it were a real personage." 
 4 Wheat. (U. S.) 667. Justice Washington_quotes Blackstone, and looks 
 upon a corporation as a franchise, 4 Wheat. (U. S.) 657; (see infra, p. 723). 
 
 The Louisiana civil code of 1824 defined a corporation as "an intellectual 
 body, created by law, composed of individuals united under a common name 
 1 and for certain purposes, considered a natural person." Tit. 10, ch. 
 1, art. 418, 427. This is approved and substantially adopted by Angel! and 
 Ames Corporations, p. 1 (1831). Walker, American Law, 90 (1837), says: 
 "Persons are either natural or artificial," the latter consisting "of natural 
 persons clothed by law with an artificial character and capacity." So, too, 
 in 1839 (22 Wend. 70, Thomas v. Dakin, supra, p. 19), and 1841 (1 Hill 
 (N. Y.) 620), corporations are defined to be persons. Grant on Corporations, 
 p. *4 (1850), says: "The ideal being called a corporation we may thus de- 
 fine to be a continuous identity, endowed at its creation with capacity for end- 
 less duration ; residing in the grantees of it and their successors, its acts being 
 determined by the will of a majority of the existing body of its grantees or their 
 successors at any given time * * * having a name, and under such name 
 a capacity for taking, holding and enjoying all kinds of property, a qualified 
 right of disposing of its possessions, and also a capacity for taking, holding and 
 enjoying but inalienably^, liberties, franchises, exemptions and privileges, 
 * * * of suing and being sued." In 19 N. Y. 39 (1859), a corporation is 
 treated as a person. Sir Nathaniel Lindley, in his Treatise on the Law of 
 Partnerships, p. 66 (1860), says: "A corporation is a fictitious person, cre- 
 ated by special authority, and endowed by that authority with a capacity to 
 acquire rights and incur obligations, as a means to the end for the attainment 
 of which the corporation is created. A corporation, it is true, consists of a 
 number of individuals, but the rights and obligations of these individuals are 
 not the rights and obligations of the body corporate exercisable by or en- 
 forcible against the individual members thereof, either jointly or separately, 
 but only collectively as one fictitious whole." 
 
 The California code of 1872 calls it "a creature of the law having certain 
 powers and duties of a natural person." Section 283. This is repeated in the 
 codes of South Dakota (1883), 373 ; and Oklahoma, 944. The Georgia code 
 of 1882 says: "A corporation is an artificial person created bylaw for specific 
 purposes." Section 1670. Lowell, Transfer of Stock, 1, 2 (1884), says : "A 
 corporation is an imaginary person, who, by a fiction of law, possesses certain 
 rights, and is made subject to certain duties. The corporation is 
 
 something distinct from its members. Its life is independent of theirs. Its 
 will may, at times, be different from that of any member, or of any given 
 proportion of its members, and it may be bound by conduct'which binds no 
 one of its members as an individual. Of course, there are, in reality, no rights 
 or duties but those of natural persons ; but the rights and duties of natural 
 persons who deal with a corporation arise from a fiction, and their nature 
 and extent are determined by that fiction. A person, therefore, who con- 
 founds a corporation with its stockholders, who says that they are the cor- 
 poration, or that it consists of its members, not only misstates -the legal view 
 of the matter, but is in danger of falling into endless confusion and error. A
 
 1 6 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 79 
 
 corporation ia distinct from its members in the same sense that a state is dis- 
 tinct from its citizens." 
 
 Austin Abbott, in the Century Dictionary (1889) defines a corporation as 
 "An artificial person, created by law, or under authority of law, from a group 
 or succession of natural persons, and having a continuous existence irrespec- 
 tive of that of its members, and powers and liabilities different from those of 
 its members." Cook, Stock and Stockholders (3ded., 1894), 1, says: "A 
 corporation is an artificial person like the state. It is a distinct existence 
 an existence separate from that of its stockholders and directors." This ia 
 repeated in the 4th ed., 1898. Reese, The True Doctrine of Ultra Vires, 1897, 
 says, 2: "It will be assumed in the examination of the doctrine to be 
 hereafter discussed, that a corporation both under the common law and as 
 now organized and created under our state laws, is- a legal entity, separate and 
 distinct from the members who compose it; that in the corporation, the creature 
 of the law, is vested all the property and powers of the company ; that it can 
 only be affected by such acts and agreements as are done or executed in its 
 behalf by the corporate agencies, acting within the legitimate scope of its char- 
 tered powers; and that no acts or contracts by the officers or agents of the 
 company beyond the scope of the powers as prescribed and designated in the 
 charter or articles of association, can be ascribed to the corporation, though 
 done and concurred in by each and all of the stockholders." Elliott Cor- 
 porations, 1899. 2, gives and approves the definitions of Abbott, supra, and 
 Kyd, infra, p. 109. 
 
 The nature of the corporate personality has been the subject of much 
 speculation. At present, in the United States, the theory is generally held 
 that the personality is artificial, or fictitious, has no existence in fact. On the 
 other hand, in Germany, the theory is the reverse of this that the person- 
 ality of a corporation is organic a real person, with a will and capacity to act, 
 and that this is different from, but just as real, as the individual personality 
 of each of its members. Recently Dr. Freund, of Chicago University, has 
 put forth a view that seems to be between these that the personality is a 
 representative one, limited to a special purpose, but within that purpose ex- 
 hibiting a real capacity of acting and willing that has substantially all the 
 legal elements of responsibility that pertain to an individual. Like the state, 
 it is a real legal existence, that expresses the will of its members through 
 representatives selected in a definite way, and is as near a reality as the 
 state is. 
 
 ARTICLE III. THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 
 
 Sec. 16. The corporation is considered as a collection of individ- 
 uals, 
 
 ( I ) In the management of corporate affairs: * 
 
 "Where an act is to be done by a corporation, all of the members 
 ought to be assembled together to consent, but this can not be separately 
 and apart by them at several times, for then it is a factum singulorum. 
 Case of the Dean and Chapter of Femes, 5 Jac. B. R. (1608)." 6 
 Viner's Abr. Corporations (G. 3), 6. "In a trial * * * where 
 there are twelve canons besides the dean, which in all make thirteen 
 of the corporation, it was held: ist. That prima facie, in all acts 
 done by the corporation, the major number must bind the lesser, or 
 else differences could never be determined. 2d. That acts done by 
 the corporation ought to be done by the consent of the major number, 
 
 1 See note at the end of this article. 
 
 2 The management of corporations is treated in en. 10, infra, p. erfrf, et seq.
 
 8O CHATER V. SAN FRANCISCO SUGAR REFINING CO. I/ 
 
 or else they are not valid, and therefore, where the corporation con- 
 sists of thirteen, there ought to be seven to make a chapter; but the 
 act of the major number of these seven is binding to the corporation. 
 But if the ancient usage hath been that acts have been done from 
 time to time by the major part of those that are present, although 
 they are but three or four, it shall be then intended that that was part 
 of their constitution at the beginning, and so what is done by them is 
 binding to the rest." 6 Viner's Abr. Corporations (G. 3), 7, citing 
 Haschard v. Somany, Freem. Rep. 504 (1693). "If an act to be 
 done be referred to the constituent members of a corporation, nothing 
 can be done but by those who are the constituent part of the corpora- 
 tion ; but where a thing is referred to be done by the commonalty, 
 there the majority of those who are present (all being summoned)^ 
 will determine and bind the rest, but in the other case the majority of 
 those who are present will not do." 6 Viner's Abr. Corporations 
 (G. 3), 8, citing The Queen v. Lock, 6 Ann. B. R. (1708). 
 
 
 Sec. 17. (2) When, by agreement or otherwise, reason, policy, or 
 justice requires, the artificial personality of the corporation will 
 be ignored, and the rights and duties of those composing it 
 alone considered. 
 
 CHATER v. THE SAN FRANCISCO SUGAR REFINING CO., ET AL.' 
 1861. IN THE SUPREME COURT OF CALIFORNIA. 19 Cal. 219-248. 
 
 [This was a bill filed by the plaintiff for the specific performance of 
 an agreement between plaintiff and Gordon and Bond, for the forma- 
 tion of a company to be called the "San Francisco Sugar Refining 
 Company," to consist of 1,000 shares, of $100 per share, providing 
 that one-third of the stock was to be issued to J. B. Bond or his 
 assigns, upon him or them paying $12,500, Bond to convey back to 
 the company 83^ shares, into the common stock of the company. A 
 like provision is made in reference to Gordon. And also " one-third 
 [of the shares] are to be issvted to Nathaniel Chater or his assigns, 
 upon him or them executing two notes one of $6,250 to J. B Bond, 
 collaterally secured by 125 shares of stock, having two years to run, 
 bearing 2 per cent, per month interest; and another note of $6,250 to 
 George Gordon, collaterally secured by 125 shares of stock, having 
 same time to run, and bearing the same interest, and said Chater is 
 also to transfer back to the company 83^ shares of stock into the 
 common stock of the company." 
 
 "It is agreed that the two hundred and fifty shares of stock thus 
 given back to the company shall be sold only by a majority vote of 
 the company, and J. B. Bond guarantees to the extent of the note of 
 
 1 Statement of facts condensed, arguments and part of opinion omitted.
 
 I/ THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 8 1 
 
 said Chater held by him ($6,250), that from one hundred and twenty- 
 five of the shares he will raise the sum of $12,50x3, as needed, and 
 George Gordon guarantees to the extent of the note of said Chater 
 held by him, that he will, on one hundred and twenty-five shares, also 
 raise the sum of $12,500. 
 
 "And it is further agreed, that the shares not sold belonging to the 
 common stock of the company, as above recited, shall, if it be not 
 found necessary to sell them, be divided equally among the three par- 
 ties hereto, but not until the company's works have been in operation 
 for at least twelve months. 
 
 "It is agreed that George Gordon shall organize the company in 
 San Francisco by taking out articles of incorporation according to law, 
 and that the first trustees shall be Charles W. Bond, Nathaniel Chater 
 and George Gordon. 
 
 "That upon the organization of the company and on the enactment 
 of its by-laws, the trustees shall issue stock as herein set forth, to the 
 parties, upon their furnishing the respective amounts they herein agree 
 to furnish, or in proportion as they furnish said amount. 
 
 "Each certificate of stock to be signed by two trustees and counter- 
 signed by the secretary. 
 
 "The stock of N. Chater to be issued to him, as herein provided, 
 on the execution of the agreement to manage the works, a memoran- 
 dum of which agreement is made simultaneous with this. 
 
 "The said Gordon and Chater agree that, to the extent of the in- 
 terest which they may control, they will vote for the said Bond to act 
 as agent of the company in San Francisco, attending to the commer- 
 cial affairs of said company there, for which service he shall receive 
 a salary of $1,800 per annum." 
 
 Afterwards, another agreement was made, of the same date, as fol- 
 low: 
 
 "Whereas, N. Chater has induced the said Bond and Gordon to 
 enter into the organization of a company in San Francisco for the pur- 
 pose of sugar refining and its collateral branches ; and the said Bond 
 and Gordon do so on the representation of said Chater and on his 
 promise to manage the same for five years, and to retain his interest 
 therein during that time, and upon his further representation that he 
 can skillfully manage a sugar refinery ; with a view of engaging the 
 services of said Chater, the said Bond and Gordon, by an agreement 
 of even date herewith, have agreed to set apart to said Chater two 
 hundred and fifty shares of the capital stock of the company, -at the 
 rate of fifty cents on the dollar of the par value of the shares, and to 
 take therefor the notes of said Chater (two, and $6,250 each), hav- 
 ing two years to run, collaterally secured by the two hundred and fifty 
 shares, and also to give the said Chater one-third of the reserved or 
 paid back shares which may not be sold, as provided for in agreement 
 of this date made between the present contracting parties. 
 
 "Now, the said Chater agrees with and to the said Gordon and 
 Bond (which agreement they make for the company they propose to 
 6 WIL. CASES.
 
 82 CHATER V. SAN FRANCISCO SUGAR REFINING CO. I/ 
 
 form, and with the understanding that they shall be at liberty to trans- 
 fer the said agreement to the company when it shall be formed) that 
 he, the said Chater, will proceed to San Francisco and there superin- 
 tend the erection of the sugar refinery and construct the same as he 
 may be directed by the company, with regard to location, cost and 
 extent, and get the same into working order, and that after the same 
 is in order, he shall superintend the business of sugar refining for the 
 said company for the period of five years from the date of first of 
 May, 1856 (eighteen hundred and fifty-six). 
 
 "That he shall engage in no other business during the period of 
 his engagement with this company, but devote his entire time to the 
 business of the company during the time he is manager. 
 
 "And the more effectually to secure the performance by him, the 
 said Chater, of this agreement, he hereby agrees that during the 
 period of his engagement above named, of five years, he will not dis- 
 pose of such of his shares of stock in the company (or sell or transfer 
 them) as he may have been enabled to pay for out of the dividends 
 made upon the stock issued to him, and the said Chater agrees that 
 the stock shall be issued to him with such restrictions as shall prevent 
 him selling it during the above named period. 
 
 "He, the said Chater, also agrees with the said Bond and Gordon 
 that the dividends declared from time to time upon the stock issued 
 to him shall go to the payment of the notes hereinbefore referred to. 
 
 "The said Bond and Gordon undertake that the proposed company 
 shall, in consideration of the premises, agree to pay the said Chater 
 the yearly salary of $3,000, in monthly sums of $250 per month, to 
 commence at the time the works go into operation, and shall also pay 
 him the monthly sum of $150 during the time his services may be re- 
 quired in erecting the works prior to commencing operations, and up 
 to the time of commencing operations. 
 
 "That said Chater also agrees, that if at any time the company 
 become dissatisfied with his management, they may remove him with- 
 out prejudice to this agreement, in which event his yearly salary of 
 $3,000 shall cease and determine, but he, the said Chater, shall not 
 be at liberty to engage in California in the business of sugar refining 
 either for himself or for others. 
 
 "Interest on the notes given by said Chater to commence on the 
 first day of September of this present year. 
 
 "It is agreed that said Bond and the said George Gordon shall pro- 
 cure for the said Chater, within sixty days of being notified by him 
 of his readiness to pay the notes herein specified, the said notes and 
 collaterals, though the notes shall not have matured, and that in the 
 event of the said Gordon and Bond respectively failing to procure the 
 said notes, the interest upon same shall, from such date, be reduced 
 to one per cent, per month. 
 
 "It is further agreed, until dividends shall have been declared by the 
 company of sufficient amount so that those due on the stock of said 
 Chater, hypothecated to secure said notes, shall be sufficient to pay 
 the interest due and accruing monthly on those notes, that the company
 
 I/ THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 83 
 
 shall advance to said Chater the interest so upon due until the ma- 
 turity of the notes as a loan to him." * * * 
 
 Chater, afterwards, on the i7th of October, 1856, was seized with 
 paralysis, and was rendered incapable of attending to the business. 
 
 The notes mentioned in the agreement as those to be made by the 
 plaintiff were never given, nor, so far as appears, demanded. 
 
 The defense seems to rest principally upon the point that these 
 notes were not made as contemplated by the agreement, that the 
 plaintiff, therefore, did not comply with the contract on his part, and 
 consequently has no right to insist on performance by defendants, 
 that one of the principal, if not the leading, inducements to the con- 
 tract was the rendition of the services of the plaintiff, and that the 
 failure to render these, though caused by his sickness, was a failure 
 of the consideration of the agreement ; and that the agreement was 
 that of the individual members or stockholders, Gordon and Bond, 
 and not of the corporation.] * * * 
 
 BALDWIN, J., delivered the opinion of the court, FIELD, C. J., and 
 COPE, J., concurring. 
 
 The whole case in this view of it may be thus summed up : Three 
 men enter into an agreement to form a corporation for commercial 
 purposes. By this agreement, and the corporate act, each corporator 
 is entitled to an equal proportion of the stock ; two contribute to the 
 capital in money the third has no money ; he proposes and is allowed 
 to give his note in lieu of money, pledging his stock as security ; the 
 other two agree that on this stock they will raise him the money. It 
 is agreed that the stock due him shall be issued on a given event ; the 
 event happens. The note is not made nor the stock issued to him, 
 but the company, controlled by the other two corporators, goes on recog- 
 nizing the third as a corporator ; no demand is made for his note or 
 the stock issued to him. The corporation makes profit enough to pay 
 the debts, and the share coming to the third partner pays his contribu- 
 tion. No stock is issued to him, and he now claims it. If the two 
 who were to raise the amount to be contributed by the third, having 
 by the agreement the right to demand his note and stock, do not de- 
 mand them or issue the stock to him, but without this form of 
 security advance the money which was to be raised, they are to be 
 considered as waiving this formal right, and are not at liberty to plead 
 the want of a mere literal compliance as a forfeiture for such it 
 would be of the interest of the third partner in the common enter- 
 prise. In equity the substance of the whole transaction is fulfilled ; 
 the object of the security answered, and the original right of the 
 plaintiff here to his stock is not lost by a mere failure on his part to 
 giv'e a particular form of security, upon which those beneficially in- 
 terested in demanding it did not insist. What, in such a state of 
 things, was not insisted upon was waived ; and equity, not regarding 
 mere modes or forms, but looking at the very substance of the trans- 
 action, is satisfied when the substantial purpose is effected, though 
 not effected in the precise way contemplated by the parties ; and this 
 is the more especially true if this failure to follow the prescribed mode
 
 84 CHATER V. SAN FRANCISCO SUGAR REFINING CO. I/ 
 
 be owing to the laches, or be by the waiver or acquiesence of the 
 party entitled in strict right to insist upon it. 
 
 The notes of Chater were merely to represent his debt, and the 
 money to pay this debt Bond and Gordon were to raise on the secu- 
 rity of his stock, they being interested in using it; and whether the 
 stock was issued in the form of a certificate or not, it was bound by 
 the agreement; and if they chose, they could as safely advance the 
 money without the note, and the substance of the whole arrangement 
 be attained. It is not necessary for us, therefore, to consider the other 
 points urged, to say the least, with plausibility, in avoidance of the 
 ground taken by the appellants to sustain the proposition just dis- 
 cussed. 
 
 This view distinguishes this case from mere executory agreement, 
 through a performance of the terms of which a party becomes entitled 
 to property, of which class Green v. Covillaud (10 Cal. 317), and the 
 other cases cited by appellants, are examples. Here Chater was en- 
 titled, as of original right, to his stock, and the conditions annexed to 
 the issuance of the certificates to him, even if not waived, at most 
 were mere qualifications in favor of his associates of that right, and 
 in the nature of security to them, the substance of which security they 
 enjoyed, and a failure of the precise process prescribed, neither by the 
 general principles of law applicable to such contracts, nor by the ex- 
 press terms of the agreement, worked a forfeiture of his interest in the 
 stock, nor in the business of the corporation. 
 
 We think there is nothing in the point that the rendering of plaint- 
 iff's services for the five years was a condition precedent to the vesting 
 of the plaintiff's title to the stock. Nothing in the agreement so de- 
 clares. The provision for the employment of plaintiff as superintend- 
 ent 'seems to be an independent term of the agreement. * * * 
 
 BALDWIN, J., delivered the opinion of the court upon the petition 
 for rehearing, FIELD, C. J., and COPE, J., concurring. * * * 
 
 It is next insisted that we erred in holding that this agreement bound 
 the corporation. That point was barely suggested on the oral argu- 
 ment, and in the learned and able briefs of the counsel no great 
 stress seemed to be laid on it. We gave it no very elaborate consid- 
 eration, for we really supposed erroneously, perhaps that the coun- 
 sel placed but little reliance upon it. The argument now on this point 
 is very full and very ingenious, but as applied to the facts of this rec- 
 ord is not sound. 
 
 Every opinion, as Chief Justice Marshall well observes, must be 
 considered with reference to the particular facts upon which it is 
 made ; for it is impossible so to use language as that general expres- 
 sions apply in every instance with the same meaning to every condi- 
 tion of facts. We asserted no such doctrine as that, by force of a 
 secret agreement between the original corporators in a commercial 
 corporation, whether made before or after the act of incorporation, 
 the stock issued by the corporation to innocent parties without notice 
 of the agreement could be charged or affected by it. There was no 
 case before us for the application of such a principle. But the right
 
 I/ THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 85 
 
 to incorporate for such a purpose as that here is a statutory right, 
 which is free to everybody. The rights in the corporation can be 
 adjusted by contract, and the terms fixed by contract. The cor- 
 poration is little more, under our laws, than a joint stock company 
 under the English laws, indeed, in its true nature more nearly resem- 
 bling a limited partnership under special articles than a corporation 
 at common law. This corporation was organized under an agree- 
 ment, whieh was in itself legal and binding. The original corpora- 
 > tors were really the men (except one if, indeed, he were not the 
 assignee of one) who made the agreement, and were bound to execute 
 it. They had the power to execute it ; for they had on the organiza- 
 tion the power, subject to restrictions which we do not apply here, to 
 control their own business in their own way. A man may as well 
 make an agreement with another for certain stock in a corporation to 
 be organized hereafter, as an agreement for stock in a presently ex- 
 isting corporation. If A, B and C agree to form a corporation for a 
 railroad with a capital of so much, to be represented by so many 
 shares of stock, why may not they contract that each is to have so 
 many shares on such and such terms? What rule of law forbids? Is 
 there anything immoral in the contract, or opposed to public policy? 
 Can not a man as well subscribe one time as another for stock, if all 
 interested consent? Indeed, as under this particular agreement they 
 organized, so far as the then members are concerned, the agreement 
 becomes as effectual as if a part of the corporate act. 
 
 As there is in this respect no restriction upon the terms on which 
 they associate or do business, or to the time of making them, why not 
 find those terms in an antecedent agreement as well as a present adop- 
 tion, if the preceding agreement is connected by clear proof with the 
 act of incorporation and its affairs? Suppose A, B and C agree to 
 form a corporation for running stages, and put in, each, $10,000, but 
 there are to be no certificates of stock issued and no debts incurred. 
 This agreement precedes, of course, the incorporation ; and suppose 
 the money is paid before the corporate act is consummated. The cor- 
 poration is formed and proceeds to do business. Will it be contended 
 that these men are not entitled to their respective shares of the profits, 
 etc., from the mere fact that all this occurred before the technical 
 ideal thing the corporation was called into existence ? The truth is, 
 the corporation, under our system, following such an agreement, would 
 be the mere agency of the associates created for the sake of conve- 
 nience in carrying out the agreement, as between those who made the 
 bargain the different characters or forms in which or by which the 
 bargain was made, and the order in which the several parts of it were 
 executed, makes no substantial difference in the obligation. But if 
 it did, and this ideal thing, the corporation, be something essential, dis- 
 tinct and exclusive, making the men inside of it and controlling it 
 wholly different from the same men just before they went into it; yet 
 these shares are interests and property in esse or posse. This interest, 
 or those shares, entitle the holder to certain privileges of value, and 
 may entitle him to profits. VVhether, therefore, the corporation is
 
 86 CHATER V. SAN FRANCISCO SUGAR REFINING CO. I/ 
 
 bound of itself, and as a separate entity, to recognize a right in a 
 claimant to this interest, a private person holding these shares or 
 interests would be bound to such claimant for them. 
 
 But apart from all this, when the corporation became such, it or- 
 ganized with Chater, Bond and Gordon as trustees, and these were 
 really the sole corporators also ; and they organized with full knowl- 
 edge of this agreement, which not only contemplated the formation 
 of the company or corporation, but prescribed the terms and rights of 
 the members in the corporation and corporate business. Chater was 
 not only superintendent under this agreement, but trustee, too; and 
 the corporate business was commenced and for a longtime prosecuted 
 with reference to this agreement, which recited these terms and affirmed 
 these rights. If anything could be, this was an adoption by the cor- 
 poration of these terms. It is not necessary to inquire whether an in- 
 nocent purchaser of the stock, buying subsequently without notice, 
 would be affected by any such acts for no such question is before us 
 now. If the corporation be bound by this agreement, and the court, 
 proceeding to enforce it by ordering the issuance of stock, should af- 
 fect injuriously any innocent holder of stock, it will be time enough 
 to consider his rights, legal or equitable, when the facts and proper 
 parties are before the court. 
 
 If, on taking the account, it should appear that Chater is not en- 
 titled to anything, but that the corporation is so indebted as to make 
 it inequitable for him to receive his shares, the court below, on the 
 final hearing, can make the proper decree, unaffected by anything in 
 the decree under review. 
 
 With these modifications, the decree is affirmed and the cause re- 
 manded. 
 
 Note. (1) Specific performance of stock agreements may be had when 
 damages would be inadequate. See: 1746, Buxton v. Lister, 3 Atkyns, Ch. 
 383; 1804, Lady Arundell v. Phipps, 10 Vesey 148; The Mechanics', etc., 
 Bank v. Seton, 1 Peters (U. S. Sup. C.) 299; 1828, Cowles v. Whitman, 10 
 Conn. 121; 1839, Clark v. Flint, 22 Pick. (Mass.) 231 ; 1863, Treasurer v. Com- 
 mercial Mining Co., 23 Cal. 390; 1879, Cushman v. Thayer Mfg. I. Co., 76 
 N. Y. 365, 32 Am. Rep. 315; 1886, Eckstein v. Downing, 64 N. H. 248, 10 Am. 
 St. Rep. 404; 1888, Goodwin Gas S. & M. Co.'s Appeal, 117 Pa. St. 514; 1891, 
 Bumgardner v. Leavitt, 35 W. Va. 194, 12 Law. Rep. Ann. 776; 1894, New 
 England Trust Co. v. Abbott, 162 Mass. 148, 27 Law. Rep. Ann. 271. 
 
 (2) Waiver of statutory liability, by creditors, may be made by express 
 agreement: 1839, Kerridge v. Hesee, 9 Carr. & Payne 200; 1863, Robinson v. 
 Bid well, 22 Cal. 379; 1872, Basshor v. Forbes, 36 Md. 154; 1883, Brown v. 
 Eastern Slate Co., 134 Mass. 590. 
 
 (3) Generally an informal agreement among members of a corporation, 
 without corporate action in the prescribed mode, does not bind the corporation : 
 1891, Independent Order of Foresters v. Zak, 136 111. 185, 29 Am. St. Rep. 
 318; 1896, Dennis v. Joslin Mfg. Co., 19 R. I. 666, 61 Am. St. Rep. 805. 
 
 (4) Provisions in articles of association contrary to law or public policy 
 are void: 1889, People v. Gas Trust Co., 130 111. 268, 17 Am. St. Rep. 319; yet 
 they may be considered as surplusage, and not vitiate the organization : 1896, 
 Shick v. Citizens' Enterprise Co., 15 Ind. App. 329, 57 Am. St. Rep. 230; un- 
 less there is no sanction in law at all for the purposes proposed : 1894, State 
 v. Inter-National Investment Co., 88 Wis. 512, 43 Am. St. 920.
 
 I 8 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 8/ 
 
 Sec. 18. Same. Particularly, (#) In matters relating to the 
 constitution of the corporation itself, or changes therein. 
 
 ASHTON v. BURBANK ET AL. 
 
 1873. IN THE UNITED STATES CIRCUIT COURT, Eighth Circuit, Dis- 
 trict of Minnesota. 2 Dillon (U. S. Cir. Ct.) 
 435-441, Fed. Cas. No. 582. 
 
 [This is an action on a promissory note, dated August 19, 1867, for 
 $3,000, made by the defendants to the Provident Life Insurance and 
 Investment Company. The defendants were subscribers of that com- 
 pany, and the note in suit was given for an assessment upon their 
 stock. The original charter of said company authorized it to transact 
 a "life and accident insurance" business. After the defendants' sub- 
 scription to the stock, the charter was amended, and the name of the 
 company changed to the Eagle Insurance Company, and it was also 
 authorized, by the amended charter, to transact the business of "fire, 
 marine and inland insurance." The amended charter was accepted, 
 but, in point of fact, the company took no risks during the short period 
 it afterwards did business, except such as were authorized by its orig- 
 inal charter. Subsequently, the company, being then in possession 
 of the note in suit, forfeited, under authority given in its charter, the 
 stock of the defendants therein. The note in suit, when long past 
 due, was transferred by the company to the plaintiff. * * * 
 
 The defendants neither procured nor assented to said last men- 
 tioned act [amending the charter], nor did they know of it until after 
 its passage, and thereupon they protesed against it, and refused to 
 pay the note in suit on this ground. Subsequently the said Eagle 
 Insurance Company ceased to do business, and this note, among 
 other assets, was sold to the plaintiff in the year 1871, in payment of 
 a debt due from the Eagle Insurance Company to him. After the 
 said amendment of the charter of March 3, 1869, the Eagle Insurance 
 Company did not, in fact, transact any fire, marine or inland insur- 
 ance business, or do any other business than such as was authorized 
 by the original charter.] 
 
 DILLON, C. J. We hold the following propositions: * * * 
 
 The change in the charter, by which a life and accident company 
 was authorized to transact fire, marine and inland insurance, is an 
 organic change of such a radical character as to discharge previous 
 subscribers to the stock of the company from any obligation to pay 
 their subscription, unless the change is expressly or impliedly assented 
 to by them. Here there was no such assent, and no acquiescence in 
 the structural change made in the charter of the company. The' com- 
 pany could not, against such a subscriber, maintain a suit to collect 
 his subscription, and take the money and use it as capital for the 
 transaction of business under the charter as altered. We think, in 
 
 1 Statement of facts condensed. Part of opinion omitted.
 
 88 DODGE V. WOOLSEY. 19 
 
 such a case, the subscriber is not bound to enjoin action under the 
 amended charter, but may, if he elects, defend against an action to 
 recover on his subscription to the stock. 
 
 If the company accepted the amended charter, as it did, by adopt- 
 ing the new name, it is not essential to such a defense to show that at 
 the time of the trial the corporation had actually exercised the en- 
 larged powers conferred upon it. The defendants are not bound, 
 on their subscription, to pay to the company money which, if paid, 
 may be used as capital to carry on the business authorized by the 
 amended charter. 
 
 Judgment for the defendants. 
 
 NELSON, J., concurs. 
 
 Note. The power of the majority to modify the constitution of a corpora- 
 tion is discussed in ch. 16, see p. 1447, infra. See, particularly: 1820, Livings- 
 ton v. Lynch, 4 Johns. Ch. 573; 1824, Natusch v. Irving, 2 Cooper's Ch. 358, 
 appendix to Gow on Partnership, p. 398 ; 1862, Durfee v. Old Colony &' F. R. 
 R. Co., 5 Allen (Mass.) 230; 1867, Zabriskie v. H. & N. Y. R. Co., 18 N. J.Eq. 
 (3 C. E. Green), 178, 90 Am. Dec. 617; 1887, Dow v. Northern R. Co., 67 N. 
 H. 1, 36 Atl. 510. 
 
 Sec. 19. Same. () In determining the rights of members 
 among themselves in equity. 
 
 DODGE, APPELLANT, v. WOOLSEY. 1 
 
 1855. IN THE SUPREME COURT OF THE UNITED STATES. 18 How- 
 ard (59 U. S) 331-380. 
 
 [Appeal from the circuit court of the United States for the district 
 of Ohio. 
 
 Suit in chancery by Woolsey, a citizen of Connecticut, and holder 
 of thirty shares in the Commercial Bank of Cleveland (an Ohio cor- 
 poration, and branch of the State Bank of Ohio) against the tax col- 
 lector (Dodge), the bank directors and the bank itself (all citizens of 
 Ohio) to enjoin the collection of the tax assessed by the state of Ohio 
 against the bank. The bank's charter of 1845 provided that semi- 
 annually it should pay six per cent, of its net profits for the preceding 
 six months to the state of Ohio "in lieu of all taxes to which said com- 
 pany or the stockholders, on account of stock owned therein, would 
 otherwise be subject." In 1851 the new state constitution was adopted, 
 and this provided that laws should be passed taxing "the notes and 
 bills discounted or purchased, money loaned and all other property, 
 effects or dues whatever, without deduction, of all banks now existing 
 or hereafter created, and of all bankers, so that all property employed 
 in banking shall always bear a burden of taxation equal to that im- 
 posed on the property of individuals." In 1852 the legislature of 
 Ohio, in accordance with this constitutional provision, made it the duty 
 
 1 Statement of facts condensed. Arguments and parts of opinions omitted.
 
 19 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 89 
 
 of the president and cashier of every bank (under a severe penalty) to 
 make report of the various items indicated to the county auditors, who 
 were to place the same upon the tax duplicate, to be taxed as other 
 property. In 1852, the president and cashier of the Commercial Bank 
 of Cleveland, did this, under protest, the tax assessed and collected 
 by distress being over $10,000, and more than $7,500 more than it 
 would have been under the charter plan. Like proceedings were had 
 in 1853, when the tax assessed was nearly $12,000 more than the 
 charter plan would have made. Woolsey alleged that "if the taxes 
 are permitted to be assessed and collected * * * ft w jn virtually 
 destroy and annul the contract between the state and the bank, in re- 
 spect to the tax which the state imposed upon it by the charter * * * 
 in lieu of all other taxes, the stock will be thereby lessened in value, 
 dividends diminished, and the bank be compelled to suspend business; 
 that, as a stockholder, he had requested the directors of the bank to 
 take measures to prevent the collection of the tax." 
 
 The material allegations, except the unconstitutionality of the law, 
 and the application to the directors to prevent the collection of the 
 tax, were admitted. Upon the latter point it was agreed that Woolsey 
 had by his attorney addressed a letter to the bank requesting it to take 
 proper proceeding to prevent the collection of the tax, the answer to 
 which was: "Resolved, that we fully concur in the views named, 
 and believe it to be in no way binding upon the bank ; but in consid- 
 eration of the many obstacles in the way of testing the law in the 
 courts of the state, we can not consent to take the action which we 
 are called upon to take, but must leave the said (Woolsey) to pursue 
 such measures as he may deem best in the premises." Upon the 
 foregoing, the circuit court granted the injunction with costs against 
 Dodge, who appealed, his counsel relying upon the following points: 
 
 "i. The complainant does not show himself to be entitled to relief 
 in a court of chancery, because the charter of the bank provides that 
 its affairs shall be managed by a board of directors, and that they 
 are not amenable to the stockholders for an error of judgment merely. 
 And that in order to make them so, it should have been averred that 
 they were in collusion with the tax collector in their refusal to take 
 legal steps to test the validity of the tax."] 
 
 [2 and 3, relating to the jurisdiction of the court, and the constitutionality 
 of the tax, omitted.] 
 
 Mr. Justice WAYNE (after stating the facts) delivered the opinion 
 of the court. * * * 
 
 We will consider the points in their order. The first comprehends 
 two propositions, namely ; that courts of equity have no jurisdiction 
 over corporations, as such, at the suit of a stockholder for violations 
 of charters, and none for the errors of judgment of those who manage 
 their business ordinarily. 
 
 There has been a conflict of judicial authority in both. Still, it has 
 been found necessary, for prevention of injuries for which common- 
 law courts were inadequate, to entertain in equity such a jurisdiction
 
 90 DODGE V. WOOLSEY. 1 9 
 
 in the progressive development of the powers and effects of private 
 corporations upon all the business and interests of society. 
 
 It is now no longer doubted, either in England or the United 
 States, that courts of equity, in both, have a jurisdiction over cor- 
 porations ; at the instance of one or more of their members, to apply 
 preventive remedies by injunction, to restrain those 'who administer 
 them from doing acts which would amount to a violation of charters, 
 or to prevent any misapplication of their capitals or profits which 
 might result in lessening the dividends of stockholders or the value 
 of their shares, as either may be protected by the franchises of a 
 corporation, if the acts intended to be done create what is in the law 
 denominated a breach of trust. And the jurisdiction extends to inquire 
 into, and to enjoin, as the case may require that to be done, any pro- 
 ceedings by individuals, in whatever character they may prefess to act, 
 if the subject of complaint is an imputed violation of a corporate fran- 
 chise, or the denial of a right growing out of it, for which there is not 
 an adequate remedy at law. 2 Russ. & Mylne Ch. Rep., Cunliffe 
 v. Manchester and Bolton Canal Company, 480, n. ; Ware v. Grand 
 Junction Water Company, 2 Russ. & Mylne 470 ; Bagshaw v. East- 
 ern Counties Railway Company, 7 Hare Ch. Rep. 114; Angell & 
 Ames, 4th ed., 424, and the other cases there cited. 
 
 It Was ruled in the case of Cunliffe v. The Manchester and Bolton 
 Canal Company, 2 Russ. & Mylne Ch. R. 481, that where the legal 
 remedy against a corporation is inadequate, a court of equity will in- 
 terfere, and there were cases in which a bill in equity will lie against 
 a corporation by one of its members. "/^ is a breach of trust toward 
 a shareholder in a joint-stock incorporated company, established for 
 certain definite purposes prescribed by its charter, if the funds or 
 credit of the company are, without his consent, diverted from such 
 purpose, though the misapplication be sanctioned by the votes of a 
 majority ; and, therefore, he may file a bill in equity against the com- 
 pany in his own behalf, to restrain the company by injunction from 
 any such diversion or misapplication." In the case of Ware v. Grand 
 Junction Water Company, 2 Russ. & Mylne, a bill filed by a member 
 of the company against it, Lord Brougham said: "It is said this is 
 an attempt on the part of the company to do acts which they are not 
 impowered to do by the acts of parliament, meaning the charter of the 
 company; 'so far I restrain them by injunction.' Indeed, an in- 
 vestment in the stock of a corporation must, by every one, be consid- 
 ered a wild speculation, if it exposed the owners of the stock to all 
 sorts of risk in support of plausible projects not set forth and author- 
 ized by the act of incorporation, and which may possibly lead to ex- 
 traordinary losses. The same jurisdiction was invoked and implied 
 in the case of Bagshaw v. The Eastern Counties R. Co. ; so, also, in 
 Coleman v. The Eastern Counties R. Co., 10 Beavan's Ch. Rep. i. 
 It appeared in that case that the directors of the company, for the pur- 
 pose of increasing their traffic, proposed to guarantee certain profits, 
 and to secure the capital of an intended steam-packet company, which 
 was to act in connection \vith the railway. It was held, such a trans-
 
 19 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 9 I 
 
 action was not within the scope of their powers, and they were re- 
 strained by injunction. And in the second place, that in such a case 
 one of the shareholders in the railway company was entitled to sue in 
 behalf of himself and all the other shareholders, except the directors, 
 who were defendants, although some of the shareholders had taken 
 shares in the steam-packet company. It was contended in this case 
 that the corporation might pledge, without limit, the funds of the com- 
 pany for the encouragement of other transactions, however various 
 and extensive, provided the object of that liability was to increase the 
 traffic upon the railway and thereby increase the traffic to the share- 
 holders. But the master of the rolls, Lord Langdale, said, "there 
 was no authority for anything of that kind." 
 
 But further, it is not only illegal for a corf/oration to apply its 
 capital to objects not contemplated by its charter, but also to apply 
 its profits. And therefore a shareholder may maintain a bill in equity 
 against the directors and compel the company to refund any of the 
 profits thus improperly applied. It is an improper application for a 
 railway company to invest the profits of the company in the purchase 
 of shares in another company. The dividend (says Lord Langdale, 
 in Solamons v. Laing, 14 Jurist for December, 1850), which belongs 
 to the shareholders, and is divisible among them, may be applied 
 severally as their own property; but the company itself or the direct- 
 ors, or any number of shareholders, at a meeting or otherwise, have 
 no right to dispose of his shares of the general dividends, which belong 
 to the particular shareholder, in any manner contrary to the will, or 
 without the consent or authority of, that particular shareholder. 
 
 We do not mean to say that the jurisdiction in equity over corpora- 
 tions at the suit of a shareholder has not been contested. The cases 
 cited in this argument show it to have been otherwise, but when the 
 case of Hodges v. The New England Screw Company et al. was 
 cited against it (we may say the best argued and judicially considered 
 case which we know upon the point, both upon the original hearing 
 and rehearing of that cause), the counsel could not have been aware 
 of the fact that, upon the rehearing of it, the learned court, which had 
 decided that courts of equity have no jurisdiction over corporations as 
 such at the suit of a stockholder for violations of charter, reviewed and 
 recalled that conclusion. The language of the court is: "We have 
 thought it our duty to review in this general form this new and unset- 
 tled jurisdiction, and to say, in view of the novelty and importance 
 of the subject and the additional light which has been thrown upon it 
 since the trial, we consider the jurisdiction of this court over corpora- 
 tions for breaches of charter at the suit of shareholders, and how far 
 it shall be extended, and subject to what limits, is still an open ques- 
 tion in this court. i Rhode Island Reports 312 rehearing of the 
 case September term, 1853." 
 
 The result of the cases is well stated in Angell & Ames, paragraphs 
 39 T i 393- lt -fn cases where the legal remedy against a corporation 
 is inadequate, a court of equity will interfere, is well settled, and 
 there are cases in which a bill in equity will lie agaist a corporation
 
 92 DODGE V. WOOLSEY. 19 
 
 by one of its members." ''Though the result of the authorities 
 clearly is, that in a corporation, when acting within the scope of 
 and in obedience to the provisions of its constitution, the will of 
 the majority, duly impressed at a legally constituted meeting, must 
 govern; yet beyond the limits of the act of incorporation, the will 
 of the majority can not make an act valid ; and the powers of a 
 court of equity may be put in motion at the instance of a single share- 
 holder, if he can show that the corporation are employing their stat- 
 utory powers for the accomplishment of purposes not within the scope 
 of their institution. Yet it is to be observed that there is an important 
 distinction between this class of cases and those in which there is no 
 breach of trust, but only error and misapprehension, or simple negli- 
 gence on the part of the directors." 1 
 
 We have then the rule and its limitation. It is contended that this 
 - case is within the limitation ; or that the directors of the Commercial Bank 
 of Cleveland, in their action in respect to the tax assessed upon it, under 
 the act of April 18, 1852, and in their refusal to take proper measures for 
 testing its validity, have committed an "error of judgment merely." 
 It is obvious, from the rule, that the circumstances of each case 
 must determine the jurisdiction of a court of equity to give the relief 
 sought. That the pleadings must be relied upon to collect what they 
 are, to ascertain in what character, and to what end a shareholder in- 
 vokes the interposition of a court of equity, on account of the mis- 
 management of a board of directors. Whether such acts are out of 
 or beyond the limits of the act of incorporation, either of commission 
 contrary thereto, or of negligence in not doing what it may be their 
 chartered duty to do. 
 
 J So it has been repeatedly decided that a private corporation may be sued 
 at law by one of its own members. The text upon this subject is so well 
 expressed, with authorities to support it, that we will extract the paragraph 
 390 from Angell and Ames entire. "A private corporation may be sued by one 
 of its own members. This point came directly before the court, in the state 
 of South Carolina in an action of assumpsit against the Catawba Company. 
 The plea in abatement was, that the plaintiff himself was a member of that 
 company, and therefore could maintain no action against it in his individual 
 capacity. The court, after hearing argument, overruled the plea as containing 
 principles subversive of justice ; and they moreover said, that the point had 
 been settled by two former cases, wherein certain officers were allowed to 
 maintain actions for their salaries due by the company. In this respect, the 
 cases of incorporated companies are entirely dissimilar from those of ordinary 
 co-partnerships, or unincorporated joint-stock companies. In the former, the 
 individual members of the company are entirely distinct from the artificial 
 body endowed with corporate powers. A member of a corporation who is a 
 creditor has the same right as any other creditor to secure the payment of 
 his demands, by attachment or by levy upon the property of the corporation, 
 although he may be personally liable by statute to satisfy other judgments 
 against the corporation. An action was maintained against a corporation on 
 a bond securing a certain sum to the plaintiff, a member of the corporation, 
 the member being deemed by the court a stranger. Pierce v. Partridge, 3 
 Met. (Mass.) 44; so of notes and bonds, accounts and rights to dividends. 
 Hill v. Manchester and Salford Water- Works, 5 Adol. & Ellis 866; Dunston 
 v. Imperial Glass Company, 3 B. & Adol. 125; Geer v. School District, 6 Vt. 
 76; Methodist Episcopal Society, 18 Vt. 405; Rogers v. Danby Universalist 
 Society, 19 Vt. 187."
 
 19 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 93 
 
 This brings us to the inquiry, as to what the directors have done in 
 this case, and what they refused to do upon the application of their 
 co-corporator, John M. Woolsey. After a full statement of his case, 
 comprehending all of his rights and theirs also, alleging in his bill 
 that his object was to test the validity of a tax upon the ground that 
 it was unconstitutional, because it impaired the obligation of aeon- 
 tract made by the state of Ohio with the Commercial Bank of Cleve- 
 land, and the stockholders thereof; he represents in his own behalf, 
 as a stockholder, that he had applied to the directors, requesting them 
 to take measures, by suit or otherwise, to prevent the collection of 
 the tax by the treasurer, and that they refused to do so, accompanying, 
 however, their refusal with the declaration that they fully concurred 
 with Woolsey in his views as to the illegality of the tax; that they 
 believed it no way binding upon the bank, but that, in consideration 
 of the many obstacles in the way of resisting the collection of the tax 
 in the courts of the state, they could not consent to take legal meas- 
 ures for testing it. Besides this refusal, the papers in the case dis- 
 close the fact that the directors had previously made two protests 
 against the constitutionality of the tax, because it was repugnant to 
 the constitution of the United States, and to that of Ohio also, both 
 concluding with a resolution that they would not, as then advised, 
 pay the tax, unless compelled by law to do so, and that they were 
 determined to rely upon the constitutional and legal rights of the bank 
 under its charter. 
 
 Now, in our view, the refusal upon the part of the directors, by 
 their own showing, partakes more of disregard of duty than of an 
 error of judgment. It was a non-performance of a confessed official 
 obligation, amounting to what the law considers a breach of trust, 
 though it may not involve intentional moral delinquency. It was a 
 mistake, it is true, of what their duty required from them, according to 
 their own sense of it, but, being a duty by their own confession, their 
 refusal was an act outside of the obligation which the charter imposed 
 upon them to protect what they conscientiously believed to be the 
 franchises of the bank. A sense of duty and conduct contrary to it is 
 not "an error of judgment merely," and can not be so called in any 
 case. It amounted to an illegal application of the profits due to the 
 stockholders of the bank, into which a court of equity will inquire to 
 prevent its being made. 
 
 Thinking, as we do, that the action of the board of directors was 
 not "an error of judgment merely" but a breach of duty, it is our 
 opinion that they were properly made parties to the bill, and that the 
 juinsdiction of a court of equity reaches such a case to give such a 
 remedy as its circumstances may require. This conclusion makes it 
 unnecessary for us to notice further the point made by the counsel that 
 the suit should have been brought in the name of the corporation, in 
 support of which they cited the case of the Bank of the United States 
 v. Osborn. The obvious difference between this case and that is, 
 that the Bank of the United States brought a bill in the circuit court 
 of the United States for the district of Ohio, to resist a tax assessed
 
 94 DODGE V. WOOLSEY. 19 
 
 under an act of that state, and executed by its auditor, and here the 
 directors of the Commercial Bank of Cleveland, by refusing to do 
 what they had declared it to be their duty to do, have forced one of 
 its corporators, in self-defense, to sue. If the directors had done so 
 in a state court of Ohio, and put their case upon the unconstitution- 
 ally of the tax act, because it impaired the obligation of a contract, 
 and had the decision been against such claim, the judgment of the 
 state court could have been re-examined, in that particular, in the su- 
 preme court of the United States, under, the same authority or juris- 
 diction by which it reversed the judgment, of the supreme court of 
 Ohio, in the case of the Piqua Branch of the State Bank of Ohio v. 
 Jacob Knoop, treasurer of Miami County, 16 How. 369. * * * 
 
 MR. Justice CAMPBELL (with whom concurred Justices DANIEL 
 and CATRON), dissenting. * * * 
 
 The court has assumed this jurisdiction, and I am therefore called 
 to inquire whether a court of chancery can take cognizance of the 
 bill? The act of incorporation of the bank charges the board of di- 
 rectors with the care of the corporate affairs, subject to an annual re- 
 sponsibility to the stockholders. The principle of a court of chancery 
 is, to decline any interference with the discretion of such directors, or 
 to regulate their conduct or management in respect to the duties com- 
 mitted to them. 
 
 The business of that court is to redress grievances illegally inflicted 
 or threatened, not to supply the prudence, knowledge or forecast re- 
 quisite to successful corporate management. The facts of this case 
 involve, in my opinion, merely a question of discretion in the per- 
 formance of an official duty. In 1852, the taxes were withdrawn from 
 the treasurer of Cuyahoga county, by an assignee of the bank, and 
 were never passed into the state treasury. The supreme court of Ohio, 
 subsequently to this, pronounced the taxes to be legally assessed upon 
 these banks, and that there was no contract between the state and the 
 banks, and there was no exemption from the tax by anything apparent 
 in the act of 1845. Some of these judgments were pending in this 
 court upon writs of error then undecided, no judgment having been 
 given contrary to that of the authorities, legislative, executive and ju- 
 dicial, as well as by the people of Ohio. It was under these condi- 
 tions that this stockholder, who purchased stock after the controversy 
 had arisen in Ohio, some five days before the taxes were payable, ad- 
 dressed the directors of the Commercial Bank to take preventive 
 measures that is, I suppose, to file a bill for an injunction instantly 
 and, upon their suggestion of difficulties, proceeds to take charge 
 of the corporate rights of the bank by this suit, in the circuit court of 
 the United States. The directors were elected annually; they were, 
 collectively, owners of one-tenth of the stock of the bank, and no evi- 
 dence is shown that any other stockholder supposed that "preventive 
 measures," under the circumstances, could be sustained. There is 
 no charge of fraud, collusion, neglect of duty or of indifference by the 
 directors, save this omission to take some undefined "preventive 
 measures," which the plaintiff affected to suppose might be proper.
 
 19 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 95 
 
 I understand the rule of chancery in reference to such a case to be 
 that no suit can be maintained by an individual stockholder for a 
 wrong done, or threatened, to such a corporation, unless it appears 
 that the plaintiff has no means of procuring a suit to be instituted in 
 the name of the corporation ; and that the rule is universal, applicable 
 as well to the cases where the acts which afford the ground for com- 
 plaint were either such as a majority might sanction, or whether it be- 
 longed to the category of those acts by which no stockholder could be 
 bound, except by his own consent. This principle has the highest sanc- 
 tion in the decisions of that court. (Foss v. Harbottle, 2 Hare 461 af- 
 firmed i Phil. 790; 2 Phil. 740; 7 Hare 130.) The principle is an ob- 
 vious consequence from the relations between the officers and members of 
 a chartered corporation and the corporation itself. These are explained 
 in Smith v. Hurd, 12 Met. 371. The court says: "There is no legal 
 privity, relation or immediate connection between the holders of shares 
 in a bank in their individual capacity on the one side and the directors 
 of the bank on the other. The directors are not the bailees, the fac- 
 tors, agents or trustees of such individual stockholders. The bank is 
 a corporation and body politic, having a separate existence as a dis- 
 tinct person in law, in whom the whole stock and property of the 
 bank are vested, and to whom all agents, debtors, officers and servants 
 are responsible for all contracts, express or implied, made in reference 
 to such capital, and for all torts and injuries diminishing or impairing 
 it." The corporation, therefore, must vindicate its own wrongs and 
 assert its own rights, in the modes pointed out by law. 
 
 I do not say that a court of chancery will never permit an individual 
 stockholder to come before it to assert a right of the corporation in 
 which he is a shareholder, where there is an obstacle of such a nature 
 that the name of the corporation can not be employed before legitimate 
 tribunals in their regular modes of proceeding, but the burden is 
 thrown upon the plaintiff to establish the existence of an urgent neces- 
 sity for such a suit. 
 
 The consideration of analogous cases will strengthen this conclusion ; 
 cases where courts of chanceiy are more free to intervene, from the 
 fiduciary relations between the parties and the extent of its general 
 jurisdiction over them. Such are cases of danger to the interests of a 
 creditor of an estate from the collusion of an executor with the debtor 
 of the estate, or the insolvency of the executor ; or where an executor 
 wrongfully fails to make a settlement with a surviving partner, and a 
 residuary legatee seeks one entire settlement of the estate against the 
 executor and partner; or where a decedent in his life has fraudulently 
 conveyed assets, and his executor is estopped to impute fraud, and 
 there are creditors ; or where the managers of a joint stock company 
 have been guilty of fraud, illegality, waste, and their stockholders 
 desire relief. In all these cases the court of chancery will suffer a 
 party remotely interested to institute the suit which his trustee, or 
 other representative, should have brought, and will grant the relief on 
 that suit which would have been appropriate to the case of him who
 
 96 DODGE V. WOOLSEY. 19 
 
 should have commenced it. Sir John Romilly, in a late case belong- 
 ing to one of these categories, says : 
 
 "To support such a bill as this it is not sufficient to prove that it 
 may be an unpleasant duty to the executors and trustees to take the 
 necessary steps for protecting the property intrusted to them. It is 
 not sufficient to show that it will be for their interests not to take such 
 steps. It is necessary to show that they prefer their own interests to 
 their duty, and that they intend to neglect the performance of the obli- 
 gation incidental to the office imposed upon them, and which they as- 
 sumed to perform ; or, as said in Travis v. Mylne, that a substantial 
 impediment to the prosecution by the executors of the rights of the 
 parties interested in the estate against the surviving partner exists." 
 Stainton v. Carron Co., 23 L. & Eq. 315; Travis v. Mylne, 9 Hare 
 141; Hersey v. Veazie, n Shep. i; Colquitt v. Howard, n Geo. 
 556. 
 
 These cases afford no support to this suit. The Cleveland Bank 
 has betrayed no purpose to abandon its corporate duty. The interests 
 and obligations of the directors coincide to support its pretensions. 
 There is no supineness in their past conduct, nor indifference to the 
 existing peril. The evidence, at the most, convicts them only of a 
 present disinclination to commence suits, which were likely to be un- 
 productive, at the request of a single shareholder. The answer shows 
 that the taxes for 1852 had not been recovered by the state, but had 
 been retaken by an assignee of the bank. Nor does the correspond- 
 ence show that the directors had decided to abandon the contest. The 
 case here does not at all fulfill the conditions on which the interposi- 
 tion of a shareholder is allowable. Elmslie v. McAulay, 3 Bro. 
 C. C. 224, i Phil. 790; Law v. Law, 2 Coll. 41; Walker v. Trott, 
 4 Ed. Ch. Rep. 38. 
 
 But the evidence does not allow me to conclude that any impedi- 
 ment whatever existed to a suit in the name of the corporation, from 
 any disposition of the directors to resist the claims of the state. Their 
 protest appears at every successive stage of the action of the fiscal 
 officers. This suit is evidently maintained with their consent; there 
 has been no appearance either by the directors or the corporation, 
 but they abide the case of the stockholder. The decree is for the 
 benefit of the corporation. The question then is, can a corporation 
 belonging to a state, and whose officers are citizens, upon some hope 
 or assurance that the opinions of the courts of the United States are 
 more favorable to their pretensions, by any combination, contrivance 
 or agreement with a non-resident shareholder, devolve upon him the 
 right to seek for the redress of corporate grievances, which are the 
 subjects of equitable cognizance in the courts of the United States, by 
 a suit in his own name ? In my opinion, there should be but one 
 answer to the question. * * * 
 
 Decree of circuit court affirmed. 
 
 Note. The rights of members of a corporation is the subject of chapter 17, 
 infra. See page 1706, et seq., where this topic is further discussed. A few refer- 
 ences are here given : 1843, Foss v. Harbottle, 2 Hare (English Vice Chancel-
 
 2O THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 97 
 
 lor's Court) 461 ; 1844, Hersey v. Veazie, 24 Maine 9, 41 Am. Dec. 364; 1847, 
 Smith v. Kurd, 12 Met. (Mass.) 371 ; 1867, Seaton v. Grant, L. R. 2 Chan. 
 App. 459; 1881, Hawes v. Oakland, 104 U. S. 450, infra, p. 1716; 1890, Esch- 
 weiler v. Stowell, 78 VVis. 316, 23 Am. St. Rep. 411 ; 1896, Decatur M. L. Co. 
 v. Palm, 113 Ala. 531, 59 Am. St. 140. 
 Pleading, see Quincy v. Steel Co., 120 U. S. 241. 
 
 Sec. 20. Same. (c) When the corporate organization is used as 
 a cloak to aid in the commission of frauds. 
 
 METCALF v. ARNOLD. 1 
 
 1895. IN THE SUPREME COURT OF ALABAMA, no Ala. 180-185; 
 55 Am. St. Rep. 24. 
 
 Appeal from the chancery court of Montgomery. 
 
 Heard before the Hon. Jere N. Williams. 
 
 The bill in this case was filed by the appellees, who were judgment- 
 creditors, for the benefit of themselves and all other creditors of the 
 Metcalf Drug Company who might desire to come in and make them- 
 selves parties. 
 
 The bill avers that complainants recovered a judgment against H. 
 B. Metcalf and F. G. Weatherly, who were doing business under the 
 firm name of H. B. Metcalf, and that executions on each of said judg- 
 ments were issued and returned no property found. It was further 
 averred in the bill that after the debts which were the basis of the judg- 
 ment in favor of each of the complainants were contracted, and while 
 said H. B. Metcalf and F. G. Weatherly were indebted to complain- 
 ants and other creditors, the said H. B. Metcalf and F. G. Weatherly 
 were conducting a drug business in the city of Montgomery, Alabama, 
 and had a large stock of goods and assets in said business, none of 
 which were exempt to them, or either of them ; that after the creation 
 of the indebtedness to the complainants, but prior to the rendition of 
 the judgment in their favor, "the said H. B. Metcalf and F. G. 
 Weatherly, with the intention to hinder, delay and defraud complain- 
 ants and others of their creditors, attempted to form a corporation, 
 with a capital stock of $8,000," and put into the said corporation 
 as its only capital stock, the stock of goods, wares and merchandise 
 and notes and accounts, which were the assets of the firm of H. B. 
 Metcalf; that "said H. B. Metcalf and F. G. Weatherly, carrying 
 out their hitherto formed intention of hindering, delaying and defraud- 
 ing complainants and their other creditors, had the stock of said cor- 
 poration, consisting of eighty shares, of the par value of $100 each, 
 issued as follows: thirty-six shares of par value of $3,600, to A. P. 
 Metcalf, the wife of H. B. Metcalf; eighteen shares of par value of 
 $1,800, to H. B. Metcalf; seventeen shares of the par value of $1,700, 
 to M. M. Weatherly, the wife of F. G. Weatherly; and nine shares 
 of the par value $900, to F. G. Weatherly." 
 
 1 Arguments omitted. 
 7 WIL. CASES.
 
 98 METCALF V. ARNOLD. 2O 
 
 It was further averred that the corporation so attempted to be formed 
 was known and called the "Metcalf Drug Company," but that the 
 said A. P. Metcalf and M. M. Weatherly had no interest whatever in 
 the effects put into the formation of the capital stock of said corpora- 
 tion ; that all of said property put into the said corporation belonged 
 to H. B. Metcalf and F. G. Weatherly, doing business in the firm 
 name of H. B. Metcalf; and that the property so put into the corpo- 
 ration constituted all, or substantially all, of the property belonging to 
 said firm and to each member thereof, upon which property the com- 
 plainants had an equitable lien for the payment of their debts. 
 
 It was further averred "that on, to wit, April 18, 1894, by a collu- 
 sion between H. B. Metcalf and F. G. Weatherly and a small creditor 
 of theirs, a judgment was allowed to be taken against the said defend- 
 ants, H. B. Metcalf and F. G. Weatherly, in a justice court, for an 
 amount less than one hundred dollars, upon which judgment execution 
 was issued and levied upon seventeen shares of stock in the name of 
 H. B. Metcalf and eight shares in the name of F. G. Weatherly, and 
 the said H. B. Metcalf and F. G. Weatherly, with the still further 
 fraudulent intent of placing all their property beyond the reach of 
 their creditors, allowed all of said shares to be sold at public outcry, 
 and they pretended that said shares were bought in by their respective 
 wives, but your orators allege that in truth and in fact the amount so 
 bid at such sale for said stock was paid by the said H. B. Metcalf and 
 F. G. Weatherly. 
 
 The bill further averred "that according to the stock-books of the 
 Metcalf Drug Company, the said H. B. Metcalf now owns one share of 
 stock and the said F. G. Weatherly owns one share of stock, but upon 
 said stock-books, notice is given that the one share of H. B. Metcalf 
 is transferred as collateral security to his wife for a pretended debt, 
 and the one share of F. G. Weatherly is transferred to his wife as 
 collateral security for a pretended debt." 
 
 The prayer of the bill was for the issuance of an injunction restrain- 
 ing the defendants and each of them from disposing of, transferring 
 or incumbering any of the property referred to in the bill, and for the 
 appointment of a receiver of the goods, wares, merchandise and the 
 notes, accounts and books of the Metcalf Drug Co., and "that on a 
 final hearing of this cause, your honor will decree that the formation 
 of said corporation was fraudulent and void as to your orators, and 
 that the issue of stock and pretended interest therein of A. P. Met- 
 calf and M. M. Weatherly is illegal and void as to your orators, and that 
 your orators have a lien upon said property to the extent of debts due 
 them, and that your honor will order a reference to ascertain the 
 amount of debts due your orators and any other creditors who may 
 come in and make themselves parties hereto ; and will order the re- 
 ceiver to sell and dispose of said stock of goods, and to collect the 
 notes and accounts, and pay your orators out of the proceed thereof." 
 
 The respondents demurred to the bill, and assigned many grounds, 
 the substance of which were the following: (i) The said bill seeks to 
 forfeit the charter of the Metcalf Drug Company, and fails to show
 
 20 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. 99 
 
 that it was not duly organized according to law. (2) The bill seeks 
 to forfeit the charter of the Metcalf Drug Company, and fails to set 
 forth any grounds for the forfeiture of said charter. (3) The bill 
 seeks to condemn the assets of the Metcalf Drug Company to the pay- 
 ment of debts for which it is not liable. (4) The bill shows on its 
 face that the debts which are sought to be collected in this suit are due 
 from H. B. Metcalf and F. G. Weatherly, as partners, under the firm 
 name of H. B. Metcalf, and are not due from the Metcalf Drug Com- 
 pany, and yet the bill seeks, to condemn the property of the Metcalf 
 Drug Company, and not the property of said debtors. (5) The bill 
 seeks to fasten a specific lien on the goods, wares, merchandise, notes 
 and accounts delivered in payment of the corporate stock in the Met- 
 calf Drug Company, but fails to state that all, or any part, or what 
 part of said assets were in the possession of the defendants, or anyone 
 of them, at the time of the filing of the bill in this cause. 
 
 On the submission of the cause on the demurrer, the chancellor 
 overruled the said demurrer. The defendants appeal from this decree, 
 and assign the same as error. 
 
 BRICKELL, C. J. The demurrer was properly overruled. The bill 
 is not, as is supposed by several of the causes of demurrer, a bill as- 
 sailing collaterally the incorporation of the Metcalf Drug Company 
 and seeking a forfeiture of its charter. It is a bill by judgment cred- 
 itors, seeking the aid of a court of equity to remove obstacles and 
 hindrances to the enforcement of their judgments, which the judgment 
 debtors have fraudulently interposed. Whatever maybe the character 
 of the obstacle or hindrance ; whatever may be the scheme or device 
 to which the debtor resorts, it lies within the province of a court of 
 equity to remove it. The formation of a corporation, investing it with 
 the legal title to all^ the property and rights of property of the judg- 
 ment-debtors, and parcelling out the stock of the corporation to the 
 debtors and their wives, may be a new device for hindering, delaying 
 and defrauding creditors. The novelty of the device is not of conse- 
 quence ; the fraud of its conception and consummation vitiates it, as 
 fraud vitiates all transactions tainted with it. The bill does pray that 
 the formation of the corporation be deemed fraudulent and void as to 
 the complainants. Such a decree would be proper in granting to the 
 complainants the full measure of relief to which they are entitled if 
 the allegations of the bill be true. But it would not work a forfeiture 
 of the charter, or a dissolution of the corporation ; it would simply be 
 ancillary to the divestiture of the title to the property, liable to the 
 debts of the complainants, with which it had been invested by the 
 judgment-debtors. 
 
 Let the decree of the chancellor be affirmed. 
 
 Note. See also: 1865, Booth v. Bunce, 33 N. Y. 139, 88 Am. Dec. 372; 
 1878, Des Moines Gas Co. v. West, 50 Iowa 16; 1882, Hibernia Insurance Co. v. 
 St. Louis-, etc., Trans. Co., 13 Fed. Rep. 516; 1886, Slatterly v. St. Louis, etc., 
 T. Co., 91 Mo. 217, 60 Am. Rep. 245; 1890, Montgomery Web Co. v. Dienelt, 
 133 Pa. St. 585; 1891, Breman, etc., Bank v. Branch, etc., Co., 104 Mo. 425, 
 16 S. W. 209; 1892, Vance v. McNabb, 92 Tenn. 47; 1892, Miner v. Belle Isle 
 Ice Co., 93 Mich. 97, 53 N. W. 2-18; 1896, Austin v.Tecumseh Natl. Bank, 49
 
 IOO PEOPLE V. NORTH RIVER SUGAR REFINING CO. 21 
 
 Neb. 412, 68 N. W. 628, 5 A. & E. Corp. Gas. N. S. 382, 35 L. R. A. 444; 
 1897, Ewing v. Composite, etc., Co., 169 Mass. 72; 1897. Gates v. Tippecanoe 
 Stone Co., 57 0. S. 60, 48 N. E. Rep. 285, 7 A. & E. Corp. Cas. N. S. 431. 
 
 Sec. 21. Same. (X) When corporate sins result from the con- 
 certed, but apparently individual, actions of the corporation 
 members. 
 
 THE PEOPLE, ETC., RESPONDENT, v. THE NORTH RIVER SUGAR 
 REFINING COMPANY, APPELLANT. 1 
 
 1890. IN THE COURT OF APPEALS OF NEW YORK. 121 N. Y. 
 582-626, 18 Am. St. Rep. 843, 32 Am. & E. Corp. Cas. 149, 
 24 North Eastern Rep. 834; also in the lower court, 54 Hun 
 354, 7 N. Y. Supp. 406, 22 A. & E. Corp. Cases 511,5 Ry. & 
 Corp. L. J. 56, 6 Ry. & Corp. L. J. 442. 
 
 Appeal from judgment of the general term of the supreme court in 
 the first judicial department, entered upon an order made November 
 7, 1889, which affirmed a judgment in favor of plaintiff entered upon 
 a verdict directed by the trial court, and affirmed an order denying a 
 motion for a new trial. 
 
 This action was brought by the attorney-general to have the defend- 
 ant "dissolved, its charter vacated and its corporate existence an- 
 nulled." This complaint alleged, and it was found that defendant is 
 a corporation organized under the general manufacturing act ; that it, 
 together with other corporations and firms, in violation of law and in 
 abuse of its powers, became a party to and carried^ out an agreement 
 which among other things provided in substance as follows: 
 
 Deed: The undersigned, namely, Haveineyers & Elder [and fourteen 
 other sugar refining partnerships 'and corporations named, including the 
 North River Sugar Refining Co.], for the purpose of forming the board, here- 
 inafter provided for, and the other purposes hereinafter set forth, enter into 
 the following agreement: Name, the board shall be designated the Sugar 
 Refineries Company. Objects: (1) To promote economy of administration, 
 reduce the cost of refining, and keep the price of sugar as low as is consistent 
 with reasonable profit. (2) To give each refining company benefit of all 
 appliances and processes known or used by the others, useful to improve qual- 
 ity, and diminish cost of sugar. (3) To protect against unlawful combinations 
 of labor. (4) To prevent the lowering of the standard of refined sugars, and 
 (5) Generally to promote the interests of the parties hereto in all lawful and 
 suitable ways. Board: All parties hereto not corporations, to become such 
 before deed goes into effect ; all shares of stock of each corporation to be trans- 
 ferred to a board, consisting of eleven persons, any member to be removable 
 by two-thirds of the entire board for incapacity or refusal to serve, vacancies 
 in term to be filled by vote of board, at end of terms by election of certificate 
 holders, at an annual meeting in New York City. Board to make by-laws 
 for themselves, act by proxy if they choose, majority to be a quorum, and 
 majority of quorum to control, except in appropriating money, a majority of 
 all, required ; members of board to be members of boards of directors of the 
 
 1 Statement of facts condensed. Arguments and parts of the opinion omitted.
 
 $21 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. IOI 
 
 several companies ; shares in such companies to be transferred to them in 
 order to qualify them, if necessary ; members of board to be divided into three 
 classes, first to serve seven years (each being named), second, five years 
 (each named), and third, three years (naming them). Officers: Board tc 
 appoint a president, vice-president and treasurer from the members of the 
 board, and a secretary (not necessarily a member of the board), and such 
 other officers as necessary, fixing their duties. Plans : The several parties 
 hereto to maintain their separate organizations, and carry on and conduct their 
 own business. Capital stock of each corporation to be transferred to the 
 board, and certificates not exceeding $50,000,000 (500,000 shares of $100 each) 
 to be issued by the board to each refinery in proportion to the value of its 
 plant as fixed by appraisers to be selected, and each stockholder in each 
 refinery to have such proportion of the certificates issued to each refinery as 
 his stock bore to the stock of that refinery, except 15 per cent, of the shares 
 allotted to each refinery to be left with the board to be disposed of for the 
 purchase of other refineries or increasing the refining capacity of the parties 
 hereto. 
 
 The certificate provided that the holder was entitled to shares in the 
 
 sugar refineries company, subject to the provisions of the deed, transfera- 
 ble on the books of the board upon surrender, subject to right to increase the 
 total stock, or change this deed, and the assignee, by accepting the certificate 
 to be held to agree to the terms of the deed, or changes made therein. The 
 title to the stock of the corporations to be in the members of the board as 
 trustees, strictly as joint tenants and having all the rights and powers inci- 
 dent to stockholders in the several corporations, subject to the provisions of 
 this deed. Profits of each corporation to be paid to the board, and dividends 
 distributed by the board to certificate holders. Changes in the deed to be 
 made by a majority of certificate holders. Other refineries to be added upon 
 terms provided by the board. Custody of the deed to be in the president of 
 the board, with sole and independent control, and not to be shown to any cor- 
 poration, firm or person whatsoever except by express direction of the board. 
 
 The stockholders of the North River Sugar Refining Company in April, 
 1887, at a meeting when all the trustees were present, appointed a committee 
 to make arrangements to consolidate the sugar refineries of New York, and 
 directed the president and secretary to sign such contract as the committee 
 should make for that purpose. The secretary, on behalf of the company, in 
 September signed the foregoing deed to go into effect in October. In Novem- 
 ber, at a stockholders' meeting, the powers of the committee and the presi- 
 dent and secretary were revoked, but it was recited that one John Searles, 
 Jr., had offered to purchase all of the stock for $325,000, and it was unani- 
 mously resolved that a committee be appointed to deliver it to him, the pro- 
 ceeds to be divided in proportion to the ownership of shares by the stock- 
 holders. Accordingly, the members individually, transferred their shares, 
 indorsed in blank, to Searles, who was a member and the secretary and treas- 
 urer of the board created by the deed above set forth ; the stock was by 
 Searles transferred to the board, and it issued certificates to the shareholders 
 to the amount of $700,000, less 15 percent., as provided by the deed; new 
 directors were chosen by the board, Searles became president, and shortly 
 afterward the works of the North River Sugar Refineries Company were 
 closed, and never run thereafter, though it was allotted its share of dividends 
 for its certificate holders. 
 
 FINCH, J. The judgment sought against the defendant is one of 
 corporate death. The state, which created, asks us to destroy; and 
 the penalty invoked represents the extreme rigor of the law. Its in- 
 fliction must rest upon grave cause, and be warranted by material mis- 
 conduct. The life of a corporation is indeed less than that of the hum- 
 blest citizen, and yet it envelopes great accumulations of property, 
 moves and carries in large volume the business and enterprise of the
 
 102 PEOPLE V. NORTH RIVER SUGAR REFINING CO. 21 
 
 people, and may not be destroyed without clear and abundant reason. 
 That would be true, even if the legislature should debate the destruc- 
 tion of the corporate life by a repeal of the corporate charter; but is 
 beyond dispute where the state summons the offender before its judi- 
 cial tribunals, and submits its complaint to their judgment and review. 
 By that process it assumes the burden of establishing the charges which 
 it has made, and must show us warrant in the facts for the relief which 
 it seeks. * * * 
 
 Two questions, therefore, open before us, first, has the defendant 
 corporation exceeded or abused its powers; and second, does that ex- 
 cess or abuse threaten or harm the public welfare. 
 
 The first question requires us to ascertain what the defendant cor- 
 poration has done in violation of its duty, or omitted to do in perfor- 
 mance of its duty. We find disclosed by the proof that it has become 
 an integral part and constituent element of a combination which 
 possesses over it an absolute control, which has absorbed most of its 
 corporate functions, and dictates the extent and manner and terms of 
 its entire business activity. Into that combination, which drew into 
 its control sixteen other corporations engaged in the refining of sugar, 
 the defendant has gone, in some manner and by some process, for, as 
 an unquestionable truth, we find it there. All its stock has been trans- 
 ferred to the central association of eleven individuals denominated a 
 "Board;" in exchange it has taken and distributed to its own stock- 
 holders certificates of the board carrying a proportionate interest in 
 what it describes as its capital stock ; the new directors of the defen- 
 dant corporation have been chosen by the board, made eligible by its 
 gift of single shares, and liable to removal under the terms of their 
 appointment at any moment of independent action. It has lost the 
 power to make a dividend, and is compelled to pay over its net earn- 
 ings to the master whose servant it has become. Under the orders of 
 that master it has ceased to refine sugar, and, by so much, has lessened 
 the supply upon the market. It can not stir unless the master approves, 
 and yet is entitled to receive from the earnings of the other refineries, 
 massed as profits in the treasury of the board, its proportionate share 
 for division among its own stockholders holding the substituted certifi- 
 cates. In return for this advantage it has become liable to be mort- 
 gaged, not for its own corporate benefit alone, but to supply with funds 
 the controlling board when reaching out for other and coveted refineries. 
 No one can look these facts fairly in the face without being compelled 
 to say that the defendant is in the combination and in to stay. In- 
 deed, so much is with great frankness admitted on the part of the ap- 
 pellant. Its counsel concedes that the stock was transferred "to the 
 board mentioned in the agreement and on the terms and for the pur- 
 poses mentioned in the agreement ; and that this action effectually 
 lodged the control of the defendant company, so far as such contol 
 can be secured by the voting power in that board." 
 
 But that truth does not alone solve the problem presented. We 
 are yet to ascertain whether the corporation became the subordinate 
 and servant of the board by its own voluntary action, or the will and
 
 21 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. IO3 
 
 power of others than itself ; by force of a contract to which it was in 
 reality a party, or as the simple consequence of a change of owners; 
 by its fault or its misfortune ; by a sale or by a trust. For, if it has 
 done nothing, if what has happened, and all that has happened, is as- 
 certained to be that the stockholders of the defendant, one or many, 
 sold absolutely to the eleven men who constituted the board their 
 entire stock, and the latter, by force of their proprietorship and as 
 owners, have merely chosen directors, in their own interest, and are 
 only managing their property in their own way as any absolute own- 
 ers may; if that is the truth, and the entire and exact truth, it is dif- 
 ficult to see wherein the corporation has sinned, or what it has done 
 beyond merely omitting for a time to carry on its business. That is 
 the theory upon which the appellant stands, and which it submits to 
 our examination. 
 
 On the other hand it is contended that there never was a sale, but a 
 trust constituted by mutual agreement ; that they who agreed were 
 the whole body of stockholders in each corporation necessarily repre- 
 senting and binding the corporation itself ; that they transferred their 
 shares to the board upon the trusts declared in the deed ; that the cer- 
 tificates issued by the board were the formal declaration of the trust ; 
 that the corporate stockholders parted with the legal title of their stock 
 to the chosen trustees with the power to vote upon it, but retained, 
 nevertheless, its beneficial ownership through the operation of the cer- 
 tificates ; and so the corporations entered into a partnership with each 
 other, vesting the partnership power in a board of control. 
 
 I have brought these two theories face to face, where they may con- 
 front each other, because, when a choice is made between them, we 
 have gone a long distance towards the end of the controversy. 
 
 [After reviewing the provisions of the deed and indicating that a sale im- 
 plies existing vendors and vendees, a negotiation between them, signing of 
 the formal contract by both, a vesting of the entire dominion in the vendee, 
 with the accompanying rights of ownership, in all of which points the deed 
 was peculiarly deficient; and on the other hand that the board was expressly 
 made trustees, with managing powers of stockholders only by the express 
 terms of the deed, and not as an incident of real ownership ; that the right to 
 mortgage was derived from the deed alone, and not as owner; that payment 
 was to be made not by money but by certificates of the board created by the 
 deed, who were not to create any liability either as a whole, or by its mem- 
 bers, all of which indicated a trust and nothing more, the opinion proceeds:] 
 
 The combination, therefore, framed by the deed was a trust; and, 
 if created by the corporations, or in any respect the consequence or 
 product of their action, some inevitable results would be certain to 
 follow. But here we encounter the stronghold of the appellant's argu- 
 ment which is, that if the corporations are in some manner in the com- 
 bination, they are there solely as the result of a contract other than 
 their own ; are there without corporate action on their part ; and so 
 are sufferers and not sinners. The reasoning leading to that result is 
 so severely technical as to have suggested a justification almost remind- 
 ing one of an apology. We are called upon to sever the corporation, 
 the abstract legal entity, from the living and acting corporators ; as it
 
 104 PEOPLE V. NORTH RIVER SUGAR REFINING CO. 21 
 
 were, to separate in our thought the soul from the body, and admit- 
 ting the sins of the latter to adjudge that the former remains pure. 
 Let us first recall the facts in the order of their occurrence. 
 
 [After stating the facts in relation to the surrender to the board, substan- 
 tially as above set forth, p. 101, the opinion proceeds:] 
 
 And yet it is argued that the corporation, the legal entity, has done 
 nothing; that Searles was guilty, but the corporate robe that enveloped 
 him was innocent, and so he must be left to wear it undisturbed ; that 
 while all that was human and could act had sinned, yet the impalpa- 
 ble entity had not acted at all and must go free. I believe that the 
 history of what occurred, as I have already described it, furnishes a 
 sufficient answer, assuming that stockholders and trustees acting to- 
 gether can do a corporate act at all. There ivas corporate action in 
 making the combination agreement which bound the defendant. The 
 revocation of an executed authority left the contract standing. The 
 corporation thus helped to make the trust and became an element of 
 it. If there was anything imperfect in its action, the new stockholder 
 and his associates waived the imperfection by acting upon the agree- 
 ment of the corporation, and so confirming it in all particulars. 
 
 But the assumption underlying the view I have expressed is itself 
 contested, and a proposition asserted which denies the possibility of 
 any corporate action, except by the trustees or directors acting for- 
 mally as such; a proposition which, if sound, dominates the whole 
 field of controversy, and, establishing that there has been no corpo- 
 rate action at all, effectually shuts out every question of illegality or 
 public injury. I can not admit that proposition. I think there may be 
 actual corporate conduct which is not formal corporate action; and where 
 that conduct is directed or produced by the whole body, both of officers 
 and stockholders, by every living instrumentality which can possess and 
 wield the corporate franchise , that conduct is of a corporate character, 
 and if illegal and injurious may deserve and receive the penalty of dis- 
 solution . 
 
 There always is, and there always must be, corporate conduct with- 
 out formal corporate action where the thing challenged is an omission 
 to act at all. A corporation organized in the public interest, with a 
 view to the public welfare, and in the expectation of benefit to the 
 community, which is the motive of the state's grant, may accept the 
 franchise and hold it in sullen silence, doing nothing, resolving noth- 
 ing, furnishing no formal corporate action upon which the state can 
 put its finger and say, this the corporation has done by the agency 
 through which it is authorized to act. That is corporate conduct 
 which the state may question and punish without searching for a for- 
 mal corporate act. The directors of a corporation, its authorized and 
 active agency, may seethe stockholders perverting its normal purposes 
 by handing it over, bound and helpless, to an irresponsible and for- 
 eign authority, and omit all action which they ought to take, offer no 
 resistance, make no protest, but silently acquiesce as directors in the 
 wrong which, as stockholders, they have themselves helped to com-
 
 21 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. IO5 
 
 mit. That again is corporate conduct, though there be an utter ab- 
 sence of directors' resolutions. 
 
 Is it asked what they could have done to prevent the organization 
 of the trust, how they were negligent and unfaithful as corporate of- 
 ficers by their omission to act ; what good a mere protest or objection 
 would have accomplished ; what effective form their resistance could 
 have assumed ? The answer is that they could have refused to recog- 
 nize the illegal trust transfer of the stock ; they could have declined to 
 register the new ownership upon their stock books; they could have 
 said, and acted upon their words, that the original stockholders re- 
 mained not only the beneficial, but the legal owners of the stock; 
 and, if the board of trustees appealed to the law, the resisting directors 
 could challenge the legality of the transfer as molded by the combina- 
 tion agreement, and might have defeated the trust and shattered it at 
 the outset of its career. So much they could have done as corporate 
 officers ; so much it was their duty to have done as representatives of 
 the corporation, and when beyond that corporate neglect they recog- 
 nized the validity of the stock transfers in trust, put the new and un- 
 lawful ownership upon their books, and accepted its votes in the 
 choice of new directors, who were to throttle the independence of the 
 corporation and chain it to the will of the trust, I think we must shut 
 our eyes in willful blindness if we fail to see both corporate neglect 
 and corporate action. 
 
 It is true, as we are reminded, that the statute confers upon trustees 
 and directors general authority to manage the stock, property and con- 
 cerns of manufacturing corporations ; and equally true that, as a gen- 
 eral rule and as between the companies and those with whom they 
 deal, the corporate action must be manifested through and by the di- 
 rectors ; but other statutes indicate with equal plainness that there are 
 corporate acts which the trustees can not perform, and which affect 
 and bind the corporation only upon the condition that they proceed 
 from the stockholders, or from them and the trustees acting together. 
 In increasing or diminishing the capital stock, the corporate act is 
 wholly that of the corporators, and in consolidating two or more com- 
 panies into one, there must be the joint action of both trustees and 
 stockholders. The trust of the refineries, in substance and effect, ap- 
 proached very near to these two corporate acts, so far as the resultant 
 consequences affected the corporators acting. The trust stipulations 
 practically doubled their corporate stock through the agency of the 
 certificates issued, and the combination in its result is largely the equiv- 
 alent of a substantial consolidation. If these things had been done 
 lawfully, they would have been accomplished by the united action of 
 trustees and corporators, and beyond any question would have been 
 corporate acts. Having been done unlawfully, but by the same united 
 agency aiming at similar results, they must still constitute corporate 
 conduct, unless the bare fact of their illegality takes away their corpo- 
 rate character. To say that would disarm the state in every case of 
 misuse or abuse of chartered powers. 
 
 The abstract idea of a corporation, the legal entity , the impalpable
 
 IO6 PEOPLE V. NORTH RIVER SUGAR REFINING CO. 21 
 
 and intangible creation of human thought is itself a fiction , and has been 
 appropriately described as a figure of speech. It serves very well to 
 designate in our minds the collective action and agency of many indi- 
 viduals as permitted by the law; and the substantial inquiry always is 
 what in a given case has been that collective action and agency. As 
 between the corporation and those with whom it deals the manner of its 
 exercise usually is material, but as between it and the state, the sub- 
 stantial inquiry is only what that collective action and agency has done, 
 zvhat it has, in fact, accomplished, what is seen to be its effective work, 
 what has been its conduct. It ought not to be otherwise. The state 
 gave the franchise, the charter, not to the impalpable, intangible and 
 almost nebuloits fiction of our thought, but to the corporators, the indi- 
 viduals, the acting and living men to be ttsed by them, to redound to 
 their benefit, to strengthen their hands and add energy to their capital. 
 If it is taken away, it is taken from them as individuals and corpora- 
 tors, and the legal fiction disappears. The benefit is theirs, the pun- 
 ishment is theirs, and both must attend and depend upon their conduct; 
 and when they all act collectively, as an aggregate body, without the 
 least exception, and so acting , reach results and accomplish purposes 
 clearly corporate in their character, and affecting the vitality , the inde- 
 pendence, the utility of the corporation itself, we can not hesitate to con- 
 clude that there has been corporate conduct which the state may review, 
 and not be defeated by the assumed innocence of a convenient fiction. 
 As was said in People, ex rel., v. K. & M. T. R. Co. (23 Wend. 
 J 93)5 "though the proceeding by information be against the corpo- 
 rate body, it is the acts or omissions of the individual corporators that 
 are the subject of the judgment of the court." 
 
 It remains to determine whether the conduct of the defendant in 
 participating in the creation of the trust, and becoming an element of 
 it was illegal and tended to the public injury and we may consider the 
 two questions together and without formal separation. 
 
 It is quite clear that the effect of the defendant's action was to divest 
 itself of the essential and vital elements of its franchise by placing 
 them in trust ; to accept from the state the gift of corporate life only 
 to disregard the conditions upon which it was given ; to receive its 
 powers and privileges merely to put them in pawn ; and to give away 
 to an irresponsible board its entire independence and self-control. 
 When it had passed into the hands of the trust, only a shell of a cor- 
 poration was left standing, as a seeming obedience to the law, but 
 with its internal structure destroyed or removed. Its stockholders, 
 retaining their beneficial interest, have separated from it in their voting 
 power, and so parted with the control which the charter gave them 
 and the state required them to exercise. It has a board of directors 
 nominally and formally in office, but qualified by shares which they 
 do not own, and owing their official life to the board which can end 
 their power at any moment of disobedience. It can make no dividends 
 whatever may be its net earnings, and must encumber its property at 
 the command of its master, and for purposes wholly foreign to its own 
 corporate interests and duties. At the command of that master it has
 
 21 THE CORPORATION AS A'COLLECTION OF INDIVIDUALS. IO/ 
 
 ceased to refine sugar, and without any doubt for the purpose of so 
 far lessening the market supply as to prevent what is termed "over- 
 production." In all these respects it has wasted and perverted the 
 privileges conferred by the charter, abused its powers, and proved 
 unfaithful to its duties. But graver still is the illegal action substituted 
 for the conduct which the state had a right to expect and require. It 
 has helped to create an anomalous trust which is, in substance and 
 effect, a partnership of twenty separate corporations. 
 
 The state permits in many ways an aggregation of capital, but mind- 
 ful of the possible dangers to the people overbalancing the benefits, 
 keeps upon it a restraining hand, and maintains over it a prudent 
 supervision, where such aggregation depends upon its permission and 
 grows out of its corporate grants. It is a violation of law for corpo- 
 rations to enter into a partnership. N. Y. & S. C. Co. v. F. Bank, 
 7 Wend. 412; Clearwater v. Meredith, i Wall. 29; Whittenton 
 Mills v. Upton, 10 Gray 596. The case last cited furnishes the rea- 
 sons with precision and at length. It shows the utter inconsistency 
 of a double allegiance by those who act for the corporation to two dif- 
 ferent principals, and demonstrates that the vital characteristics of the 
 corporation are of necessity drowned in the paramount authority of 
 the partnership. That the combination of the refineries partakes of 
 the nature of a partnership is not denied. Indeed, in one of the papers 
 added to the appellant's brief, it is not only admitted, but asserted 
 and defended. That paper shows quite clearly that by force of the 
 arrangement there was a community of interest in the fund created by 
 the corporate earnings before division, and that each member of the 
 trust shared in the profit and loss of all. It is said, however, that a 
 consolidation of manufacturing corporations is permitted by the law, 
 and that the trust, or combination, or partnership, however it may be 
 described, amounts only to a practical consolidation, which public 
 policy does not forbid, because the statute permits it. Laws of 1867, 
 ch. 960; Laws of 1884, ch. 367. The refineries did not avail them- 
 selves of that statute. They chose to disregard it, and to reach its 
 practical results without subjection to the prudential restraints with 
 which the state accompanied its permission. 
 
 If there had been a consolidation under the statute, one single cor- 
 poration would have taken the place of the others dissolved. They 
 would have disappeared utterly, and not, as under the trust, remained 
 in apparent existence to threaten and menace other organizations 
 and occupy the ground which otherwise would be left free. Under 
 the statute the resultant combination would itself be a corporation de- 
 riving its existence from the state, owing duties and obligations to the 
 state, and subject to the control and supervision of the state, and not, 
 as here, an unincorporated board, a colossal and gigantic partnership, 
 having no corporate functions and owing no corporate allegiance. 
 Under the statute the consolidated company taking the place of the 
 separate corporations could have as capital stock only an amount equal 
 to the fair aggregate value of the rights and franchises of the compa- 
 nies absorbed ; and not as here a capital stock double that value at the
 
 108 PEOPLE V. NORTH RIVER SUGAR REFINING CO. 21 
 
 outset and capable of an elastic and irresponsible increase. The dif- 
 ference is very great and serves further to indicate the inherent ille- 
 gality of the trust combination. 
 
 And here, I think, we gain a definite view of the injurious tenden- 
 cies developed by its organization and operation, and of the public 
 interests which are menaced by its action. As corporate grants are 
 always assumed to have been made for the public benefit, any conduct 
 which destroys their normal functions, and maims and cripples their 
 separate activity, and takes away their free and independent action, 
 must so far disappoint the purpose of their creation as to affect un- 
 favorably the public interest; and that to a much greater extent when 
 beyond their own several aggregations of capital they compact them 
 all into one combination which stands outside of the ward of the state, 
 which dominates the range of an entire industry, and puts upon the 
 market a capital stock proudly defiant of actual values, and capable 
 of an unlimited expansion. It is not a sufficient answer to say that 
 similar results may be lawfully accomplished ; that an individual hav- 
 ing the necessary wealth might have bought all these refineries, manned 
 them with his own chosen agents, and managed them as a group at 
 his sovereign will ; for it is one thing for the state to respect the rights 
 of ownership and protect them out of regard to the business freedom 
 of the citizen, and quite another thing to add to that possibility a fur- 
 ther extension of those consequences by creating artificial persons to 
 aid in producing such aggregations. 
 
 The individuals are few who hold in possession such enormous 
 wealth, and fewer still who peril it all in a manufacturing enterprise ; 
 but if corporations can combine, and mass their forces in a solid trust 
 or partnership, with little added risk to the capital already embarked, 
 without limit to the magnitude of the aggregation, a tempting and 
 easy road is opened to enormous combinations, vastly exceeding in 
 number and in strength and in their power over industry any possibili- 
 ties of individual ownership ; and the state by the creation of the 
 artificial persons constituting the elements of the combination, and 
 failing to limit and restrain their powers, becomes itself the responsi- 
 ble creator, the voluntary cause of an aggregation of capital which it 
 simply endures in the individual as the product of his free agency. 
 What it may bear is one thing, what it should cause and create is quite 
 another. 
 
 And so we have reached our conclusion, and it appears to us to 
 have been established, that the defendant corporation has violated its 
 charter and failed in the performance of its corporate duties, and that 
 in respects so material and important as to justify a judgment of disso- 
 lution. Having reached that result, it becomes needless to advance 
 into the wider discussion over monopolies and competition and re- 
 straint of trade and the problems of political economy. Our duty is 
 to leave them until some proper emergency compels their considera- 
 tion. Without either approval or disapproval of the views expressed 
 upon that branch of the case by the courts below, we are enabled to 
 decide that in this state there can be no partnerships of separate and
 
 21 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. IOQ 
 
 independent corporations, whether directly, or indirectly through the 
 medium of a trust ; no substantial consolidations which avoid and dis- 
 regard the statutory permissions and restraints, but that manufactur- 
 ing corporations must be and remain several as they were created, or 
 one under the statute. 
 
 The judgment appealed from should be affirmed with costs. 
 
 All concur. 
 
 Judgment affirmed. 
 
 Note. (1) The right of the state to forfeit the charter of a corporation for a 
 violation of it injuriously affecting the public, is treated in ch. 16, infra, p. 
 1294, et seq. 
 
 (2) Also the power of a corporation to become a member of a paitnerslr : 
 is treated in ch. 13, infra, p. 957. 
 
 (3) As to the "fiction of the legal entity of the corporation" see particularly, 
 1892, State v. Standard Oil Co., 49 Ohio St. R. 137, 34 Am. St. R. 541, and 
 the quotations from Morawetz and Taylor, in the note to this article, infra, 
 p. 110. Also 1895, Ford v. Chicago Milk Shippers' Association, 155 111. 166; 
 1895, Belden v. Burke, 147 N. Y. 542; 1888, Wood v. Trust Co., 128 U. S. 416. 
 
 (4) As to validity of trusts or combinations in restraint of trade. See 1889, 
 Richardson v. Buhl, 77 Mich. 632, 27 Am. & E. C. C. 256; 1889, People v. 
 Chicago Gas Trust, 130 111. 268, 17 Am. St. R. 319, 29 Am. & E. C. C. 257; 
 1889, Gibbs v. Consolidated Gas Co., 130 U. S. 396, 25 Am. & E. C. C. 369 ; 1890, 
 Emery v. Ohio Candle Co., 47 Ohio St. 320, 32 Am. & E. C. C. 165 ; 1890, State 
 v. Nebraska Distilling Co., 29 Neb. 700, 29 Am. & E. C. C. 656; 1891, Huston 
 v. Rentlinger, 91 Ky. 333, 34 Am. St. R. 225 ; 1893, People v. Sheldon, 139 N. Y. 
 251, 36 Am. St. R/690; 1894, Nester v. Continental Brewing Co., 161 Pa. St. 
 473, 41 Am. St. R. 894; 1895, Distilling & Cattle F. Co. v. People, 156 111. 448, 
 47 Am. St. R. 200; 1895, People v. Milk Exchange, 145 N. Y. 267, 45 Am. St. 
 R. 609; 1897, People v. Chicago Live Stock Exchange, 170 111. 556, 62 Am. St. 
 R. 404; 1897, United States v. Joint Traflic Association, 76 Fed. R. 895, s. c. 
 in 171 U. S. 505. 
 
 NOTES TO ARTICLE III. 
 
 The corporation as a collection of individuals, history and definitions: 
 
 Mr. Kyd (Corporations, vol. 1, p. 13, 1793) says: A corporation, or body 
 politic, or body incorporate is a collection of many individuals united in one 
 body, under a special denomination, having perpetual succession under an 
 artificial form, and vested by the policy of the law with the capacity of act- 
 ing in several respects as an individual, particularly of taking and granting 
 property, of contracting obligations, and of suing and being sued, of enjoying 
 privileges and immunities in common, and of exercising a variety of political 
 rights, more or less extensive, according to the design of its institution, or 
 the powers conferred upon it, either at the time of its creation or at any sub- 
 sequent period of its existence." 
 
 In Hope Insurance Co. v. Boardman, 5 Cranch (9 U. S.) 57, 1809, and in 
 Bank of United States v. Deveaux, 5 Cranch (9 U. S.) 61, same year, it was 
 held, in regard to the citizenship of corporations for the purpose of jurisdic- 
 tion, that the court "would look beyond the mere legal being which the 
 charter created, and consider the character as to citizenship, of the individ- 
 uals of whom the company is composed." This, of course, ignored the cor- 
 porate personality, and continued to be the law till 1844, when the case of 
 Louisville, etc., R. R. Co. v. Letson, 2 Howard (43 U. S.) 497, 558. announced 
 that a corporation "is to be deemed to all intents and purposes as a person, 
 although an artificial person," and a citizen of the state creating it. In the later 
 case of Ohio and Mississippi R. Co. v. Wheeler, 1 Black (66 U. S.) 286, 1861, 
 the Deveaux and Letson cases were attempted to be reconciled, by inventing 
 another strange fiction that the members of any corporation were to be con^;
 
 HO NOTES TO ARTICLE III. 
 
 clusively presumed to be citizens of the state creating the corporation, and 
 "no averment or evidence to the contrary is admissible," though the truth is 
 otherwise, and though the suit of a corporation "is to be considered as a suit 
 by the individuals who compose it." This seems to be the theory yet. 
 
 In Muller v. Dows, 94 U. S. 444, 1876, it is said : "A suit may be brought 
 in the federal courts, by or against a corporation, but in such a case it is re- 
 garded as a suit brought by or against the stockholders of the corporation," 
 all of whom are conclusively presumed to be citizens of the state creating the 
 corporation. 
 
 (See further on this point, Shaw v. Quincy Mining Co., 145 U. S. 444, infra, 
 p. 1066, and St. Louis & S. F. R. v. James, 161 U. S. 545, infra, p. 1099 ) 
 
 Judge Story, in the Dartmouth College case, 1819 (4 Wheat. 667, infra, 
 p. 727), while recognizing the artificial personality of the corporation, yet 
 seemed to emphasize the collective or associate character more particularly 
 He says : ' A corporation aggregate is a collection of individuals united into 
 one collective body, under a special name, and possessing certain immunities 
 privileges and capacities in its collective character, which do not belong to the 
 natural persons composing it." 
 
 Chief Justice Shaw, of Massachusetts, in Overseers of the Poor v. Sears 22 
 Pick. (Mass.) 122 on 128, infra, p. 193. 1839, says; "A corporation aggregate 
 consists of many persons united together into one society, and kept up by a 
 perpetual succession of members so as to continue forever." 
 
 Lumpkin, J., in Hightower v. Thornton, 8 Ga. 492, 1850, says: "Corpora- 
 tions are but associations of individuals." So Baldwin, J., in Chater v. San 
 Francisco, etc., Co., 19 Cal. 219, 1861 (supra, p. 80), says: "A corporation 
 organized under general laws is scarcely more than a partnership, or an asso- 
 ciation of individuals." Similarly Law, J., in Gelpcke v. Blake. 19 Iowa 263, 
 on 268, 1865, asks: "Who in law constitutes the companv, if it be not the 
 stockholders?" 
 
 Mr. Morawetz, in the preface to the second edition of his Treatise on the 
 Law of Private Corporations, 1886, says the first edition (which appeared in 
 ,} was prepared according to a plan differing from that followed in any 
 previous treatise on the same subject, and specifies particularly: "The author 
 was of the opinion that the law relating to private business corporations could 
 not be clearly understood, unless the fact were recognized that such a corpo- 
 ration is really an association formed by the agreement of its stockholders, and 
 that the existence of a corporation as an entity, independently of its mem- 
 ers, is a fiction ; and that while the fiction of a corporate entity has im- 
 portant uses and can not be dispensed with, it is nevertheless essential to 
 bear in mind distinctly that the rights and duties of an incorporated associa- 
 tion are, in reality, the rights and duties of the persons who compose it, and 
 not of an imaginary being." He retains the same view throughout the sec- 
 ond edition. In section 227 he says: "A corporation is really an association 
 * f P, er . sons ' an . d no Judicial dictum or legislative enactment can alter this fact." 
 And In equity the conception of a corporate entity is used merely as a 
 formula for working out the rights and equities of the real parties in interest, 
 while at law this figurative conception takes the shape of a dogma, and is 
 often applied rigorously without regard to its true purpose and meaning. In 
 equity the relationship between the shareholders is recognized whenever this 
 becomes necessary to the attainment of justice ; at law this relationship is not 
 recognized at all." He particularly enumerates that the unanimous actions 
 of the members, within corporate powers, are the actions of the corporation; 
 notice to all members is notice to the corporation; property of associations 
 subject to debts can be followed, when vested in a corporation organized by 
 their members; also in the questions relating to constitutionality of lawa 
 affecting corporations, and laws of consolidations and dissolutions of corpora- 
 tions, the rights of creditors and the rights of members as against the corpo- 
 ration, and in similar cases the fiction is necessarily overlooked or ignored. 
 See sections 228, 229. 230 and 231. 
 
 Mr. Taylor, Treaties on the Law of Private Corporations, in the preface to 
 his first edition in 1884., says: "It is the opinion of the writer that the fie-
 
 THE CORPORATION AS A COLLECTION OF INDIVIDUALS. I I I 
 
 tion of the 'legal person' has outlived its usefulness, and is no longer adequate 
 for the purposes of an accurate treatment of the legal relations arising through 
 the prosecution of a corporate enterprise. By dismissing this fiction a clearer 
 view may be had of the actual human beings interested, whose rights may 
 then be determined without unnecessary mystification." In the preface to 
 his third edition, 1894, he says: "When special rules cease to accord with 
 the general rule once back of them, if no further convenient rules can be 
 drawn from the general rule, it drops from the body of the law. * * * 
 Thus it is at present with the rule or fiction that a corporation is a legal per- 
 son ; it still represents a convenient phrase, nay, a convenient point of view ; 
 but it is dead as a principle because legal propositions are no longer deduced 
 from it, nor is it in logical connection with the great mass of legal rules which 
 have been called forth by controversies relating to railroad and other busi- 
 ness corporations," citing People v. North Riv. S. R. Co. (supra, p. 100), and 
 State v.8tandard Oil Co., 49 O. S. 137. In the text, section 36, he says : "A corpo- 
 ration, considered as a legal institution, is the sum of the legal relations re- 
 sulting from the operation of rules of law, in its constitution upon the various 
 persons, who, by fulfilling the prerequisite conditions, bring themselves within 
 the operation of these rules." In section 48 he adds: "It is now necessary 
 to determine who are the individuals composing the corporation regarded not 
 as a mass of legal relations, but as a body of men. Can it be said that the 
 corporation, or body corporate, is composed of all the persons between whom 
 these legal relations subsist? This conception would embrace all persons in 
 any way interested in the corporate enterprise, * * * the state * * * 
 the shareholders and directors, * * ' and creditors." But, he says, sec- 
 tion 49, "It is more in accordance with the ordinary use of terras^ and a 
 clearer and more serviceable conception, to regard the corporation as consist- 
 ing of the shareholders, who may, with propriety, be said to constitute the 
 body corporate, as it is through their acts, or the acts of their predecessors, 
 that incorporation is caused." Section 50: "The shareholders, then, vested 
 with the corporate powers, are the body corporate, corporation or company." 
 Section 51 : "Such, then, are the two meanings of the term corporation ; the 
 one, the sum of legal relations subsisting in respect to the corporate enter- 
 prise; the other, the organic body of shareholders, whose acts cause the 
 operation of the rules of law in the constitution. These two concep- 
 tions include all that is really connoted by the term in whatever sense 
 used. And, if so, what has become of the venerable 'legal person?' Is he 
 still somewhere, as he has always been imagined? Or is he nowhere 
 as he has always actually been? * * * Shall we say he is the combination, 
 the mystic unification of our two conceptions? Better not; better forget him. 
 For he is a conception, which, if it amounts to anything, is but a stumbling- 
 block in the advance of corporation law towards the discrimination of the 
 real rights of actual men and women. And then, after all, what has he ever 
 been but an abstraction materialized in a name?" He says, also, note 1, 51 : 
 "It is in respect of the doctrine of ultra vires, that the fiction of a legal per- 
 son is most pernicious, as this fiction involves regarding a corporation as a 
 unit, and retards the proper discrimination of the rights of different persons 
 in regard to ultra vires acts." Compare the definition of Reese, supra, p. 79. 
 Prof. Pomeroy, in reviewing Mr. Taylor's work, under the title, "Legal 
 Idea of a Corporation," 19 Am. Law Rev., pp. 114-116 (1885), says: "The 
 common law conception of the 'legal personality' of the metaphysical entity 
 constituting the corporation entirely distinct from its individual members 
 arose at a time when corporations were all created by special charters, gen- 
 erally granted by the crown ; when very few were 'stock' corpora- 
 tions, * * * and were necessarily monopolies. ' * In the United 
 States * * * almost all private corporations * ' are formed under 
 general laws * * * for almost any business purpose. * * The asso- 
 ciations thus formed * * * differ very little in their essential attributes 
 from partnerships. * * * Of late years parliament has enacted statutes 
 similar in their scope and effect to our general laws for the formation of pri- 
 vate corporations. The English courts have never treated the joint-stork
 
 112 NOTES TO ARTICLE III. 
 
 companies with limited liability, formed under these statutes, as being identi- 
 cal with common law corporations, but have always carefully distinguished 
 between them. In our opinion, the American courts must, in time, recognize 
 and enforce the same distinction." 
 
 In Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, on 189 (1888), Field, 
 J., says: "A private corporation is merely an association of individuals united 
 for a special purpose and permitted to do business under a particular name, 
 and have a succession of members without dissolution." He said the same 
 in Baltimore, etc., R. Co. v. Fifth Baptist Church, 108 U. S. 317, 330 (1883). 
 
 The Am. & Eng. Ency. (4 vol. 185) (1888), says: "A corporation is a body 
 consisting of one or more persons, established by law for certain specific pur- 
 poses, with the capacity of succession (either perpetual or for a limited 
 period) and other special privileges not possessed by individuals, yet acting 
 in many respects as an individual." 
 
 Mr. Beach, Commentaries on the Law of Private Corporations, vol. 1, 1, 
 1891, after noting the conflicts in definitions given, says: "Although a cor- 
 poration is, in a certain sense, something distinct from its members, having a 
 life independent of theirs, the truth would seem to lie between these conflict- 
 ing views of its nature. * * * The effort of practical jurisdiction should 
 be to regard it as a unit or as a collection of persons according to the relation 
 in which it acts in a given instance. As has been aptly said to this point 
 (quoting Professor Pomeroy, 19 Am. Law Rev. 114) 'the shield will be either 
 white or red accordingly as it is viewed from the one side or the other.' " 
 
 Mr. Thompson, Commentaries on Corporations, 1895, 1, says: "The 
 most usual conception of a corporation is that it is a collection of natural per- 
 sons, joined together by their voluntary action or by legal compulsion, by or 
 under the authority of an act of the legislature, to accomplish some purpose, 
 pecuniary, ideal, or governmental, authorized by the legislature, under a 
 scheme of organization and by methods thereby prescribed or permitted : 
 with the faculty of having a continuous succession during the period pre- 
 scribed by the legislature for its existence, of having an individual name by 
 which it may make and take contracts and sue and be sued, and of acting as 
 a unit in re'spect of all matters within the scope of the purposes for which it 
 was created." 
 
 Mr. Clark, Handbook of the Law of Private Corporations, 1897, 1, 2, 3, 
 says : "A corporation aggregate is a collection of individuals united, by author- 
 ity of law, into one body, under a special denomination, with the capacity of 
 perpetual succession. Every corporation aggregate consists of, (a) A collec- 
 tion of individuals, (b) A legal entity, which is, for many purposes, in con- 
 templation of law, separate and distinct from the members who compose it. 
 For the purpose of acquiring, holding, and conveying property, contracting 
 obligations, incurring liabilities, suing and being sued, a corporation is 
 regarded in law as a legal entity separate and distinct from the members who 
 compose it. * * * That a corporation is thus a legal entity, separate and 
 distinct from the members who compose it, is a mere legal fiction introduced 
 for the convenience of the corporation in transacting business, and of those 
 who do business with it; and when urged to an intent and purpose not within 
 its reason and policy, it will be disregarded, and the fact that the corporation 
 is really a collection of individuals will be recognized, even at law. Courts 
 of equity, in numerous instances, look behind the corporate entity, and recog- 
 nize the individual members and will do so whenever justice requires." 
 
 It seems from the foregoing, and still more from the further treatment of 
 the subject by Mr. Beach, Mr. Thompson and Mr. Clark, that "the collection 
 of individuals" is emphasized only by being placed first in their definitions 
 as Mr. Kyd did, and is not made especially prominent as a principle from 
 which to deduce theories of corporate rights and liabilities, as is the case with 
 Mr. Morawetz and Mr. Taylor. 
 
 Mr. Trapnell in "The Logical Conception of a Corporation," a paper 
 read before the West Virginia Bar Association in 1896, defines a corporation 
 as "an association of individuals formed under the sanction of the state, for 
 a distinct and definite purpose." He specifies particularly that the associa-
 
 22 THE CORPORATION AS A FRANCHISE. 113 
 
 tion originates in an agreement between individuals, which becomes effective 
 only through a special charter or general enabling act, the provisions of 
 which are accepted by the execution of the agreement; the peculiar mode of 
 existence is perpetual, actual or potential ; the distinct feature of its termina- 
 tion is the state's power to dissolve for violation of the law ; the distinctive 
 features as to membership are the effect of assignment of stock, and the confin- 
 ing of rights and liabilities strictly to the proper purposes of the corporation ; 
 as to the state's sanction, it must be an express legislative one, which operates 
 both as a grant of powers forming a contract with the state, and as a law, pre- 
 scribing certain forms and modes of action, and, as to the purpose, it must be 
 a definite one, and no corporate power is to be exercised outside of this ex- 
 press or necessarily implied purpose, under penalty of forfeiture, and no 
 corporate liability will arise therefrom except by way of estoppel ; the cor- 
 porate actions must be through the forms and by the parties or officers pre- 
 scribed, and the funds must be applied only to the purposes indicated, with- 
 out diversion or dissipation to the prejudice of members or creditors. The 
 foregoing is the substance of what he submits "as a logical statement of all 
 the elements essential to a modern business corporation, with such analysis 
 of each as is necessary to differentiate a corporation from all other associa- 
 tions known to law, as regards that particular," in other words "to exhibit the 
 anatomy of a healthy corporation.''' He says further: "It seems worth while 
 to attempt to embody a clear conception of a corporation immortality, 
 'corporate identity,' 'perpetual succession,' and all without any aid from 
 the 'artificial' person whom Coke and Blackstone regarded so lovingly, and 
 who is such a bugbear to, at least, one modern text writer." 
 
 ARTICLE IV. THE CORPORATION AS A FRANCHISE. 1 
 
 Sec. 22. In its relation to the state a corporation is considered 
 as a primary franchise held by the members in their individual 
 capacity, enabling them in their collective or corporate capac- 
 ity to have and exercise other or secondary franchises, rights 
 or privileges, 
 (i) General nature of a franchise. 
 
 THE PEOPLE, ETC., Ex EEL. THE ATTORNEY-GENERAL, v. THE TJTICA 
 INSURANCE COMPANY. 2 
 
 1818. IN THE SUPREME COURT OF NEW YORK. 15 Johnson (N. 
 
 Y.) *358-*395- 
 
 [Information in the nature of quo warranto against the Utica In- 
 surance Company, a company authorized to do all kinds of insur- 
 ance business, and "in general of doing and performing, in these op- 
 erations, all the business generally performed by insurance companies, 
 excepting therefrom that this corporation shall not engage in loaning 
 any money upon bottomry and respondentia nor in making any in- 
 surance upon any life or lives," for using without any warrant. 
 
 1 See note at end of this article, p 157. 
 
 * Statement of facts condensed, parts of arguments, and parts of opinion 
 omitted. 
 
 8 WIL. CASES.
 
 114 PEOPLE V. UTICA INSURANCE COMPANY. 22 
 
 charter or grant the following liberties, privileges and franchises to 
 wit, that of becoming proprietors of a bank or fund for the purpose of 
 issuing notes, receiving deposits, making discounts, and transacting 
 other business which incorporated banks may and do transact by vir- 
 tue of their respective acts of recorporation, all of which liberties, 
 privileges and franchises the said company have usurped and still do 
 usurp upon the people of the state. The bank pleaded authority 
 under their act of incorporation and the people demurred.] 
 
 Attorneys \_Harrison and T. A. Emmet~\ for the insurance com- 
 pany maintained: i. The acts charged against the defendants aic 
 not the exercise of franchises ; and therefore an information in the 
 nature of a writ of quo ivarranto will not lie against them. Fran- 
 chise or not is a question of law and is not admitted by the de- 
 murrer. A franchise is a royal privilege, or branch of the royal pre- 
 rogative, subsisting in the hands of the subject, by grant from the 
 crown. A writ of quo ivarranto is the king's writ of right and 
 and issues where a franchise is usurped, or forfeited by misuser. (2 
 Bl. Com. 37, Finch's Law 38, 164, 166; 3 Cruises' Dig. 278, tit. 27, 
 i.) The word "franchises" is often used, in common parlance, in 
 a very broad sense, for all liberties, but its legal or technical signifi- 
 cation is more confined. A franchise was, always, in England, a 
 gem in the royal diadem. It was inherent in the crown from the first 
 institution of monarchy. But the right of banking was never a fran- 
 chise or branch of the royal prerogative. The bank of England was 
 established in 1694, pursuant to an act of parliament (5 W. & M., 
 cap. 20), which authorized their majesties, William and Mary, to 
 grant a commission to take subscriptions from individuals, and to in- 
 corporate them. Had the power of banking been a royal franchise, 
 this special authority from parliament would not have been necessary. 
 
 In 1697 (8 & 9 W. & M., ch. 20, 28) it was enacted that during 
 the continuance of the bank of England, no other bank, or any other 
 corporation, society, fellowship, company or constitution, in the na- 
 ture of a bank, should be erected or established, etc., by act of parlia- 
 ment. 
 
 This still left individuals and ancient corporations free to bank. But 
 in 1708 (7 Anne, ch. 7, 61), it was enacted, that during the continu- 
 ance of the bank of England, it should not be lawful for any corpora- 
 tion erected, or to be erected (other than said bank), or for any other 
 persons in partnership, exceeding the number of six persons, to take 
 up money on their bills or notes, etc. It is clear, then, that if parlia- 
 ment had not interfered, all corporations might lawfully have carried 
 on banking business; the act of 7 Anne, restraining them, does not 
 declare it unlawful, but merely prohibits the exercise of the power 
 while the bank of England continued. It is manifest, therefore, that 
 in England, banking was not considered as a royal franchise ; and 
 private banking is now carried on in that country by associations of 
 partnership of not more than six persons. 
 
 If we look to the acts of our legislature, we shall find that they
 
 22 THE CORPORATION AS A FRANCHISE. 11$ 
 
 speak the same doctrine. Numerous acts of incorporation have been 
 passed since the restraining act of April u, 1804, each of which con- 
 tains a special clause to restrain the corporation from banking. 
 
 [Here the counsel enumerated more than fifty acts passed since 1804, which, 
 he said, contained a special restraining clause.] 
 
 It is remarkable, also, that in the same session in which the restrain- 
 ing act was passed there was an act of incorporation passed containing 
 a special prohibition against banking. What stronger evidence can 
 be wanted of the sense of the legislature that the right of banking is 
 not a franchise, but exists at large in every citizen, and may be freely 
 exercised, unless expressly restrained by the legislature? 
 
 The right was open to every individual, and the defendants, being 
 created a corporation, have, as its inseperable incidents, a perpetual 
 succession, a capacity to sue and be sued, a right to purchase and hold 
 land, to have a common seal, and to make by-laws, etc. (Kyd on 
 Corp., 69, 70.) They might therefore, as well as any individual, 
 carry on banking business, unless expressly prohibited. If, then, 
 this is not a royal franchise, no information in the nature of a writ of 
 quo ivarranto lies ; for these informations have been substituted in the 
 place of that ancient prerogative writ. (2 Co. Inst. 496, i Bulst. 55 5 
 56; Rex v. Marsden, 3 Burr. 1817, per Wilmot, J.) 
 
 Not a case can be found in which a writ of quo ivarranto has been 
 brought, or an information in the nature of one filed for exercising the 
 right of banking. 
 
 In The King v. Shepherd (4 Term Rep. 381), Lord Kenyon said, 
 that the old writ of quo ivarranto lay only where there was a usurpa- 
 tion on the rights and prerogatives of the crown ; and that an infor- 
 mation in the nature of a quo ivarranto could be only granted in such 
 cases. So, in The King v. The Corporation of Bedford Level (6 
 East 359), Lawrence, J., says it has been always understood that a 
 quo ivarranto only lay for encroachments on franchises created by the 
 crown. 
 
 Again, for the exercise of any power incidental to a corporation or 
 association, a writ of quo ivarranto does not lie. As well might it lie 
 to ascertain by what authority individuals assembled for political pur- 
 poses. A person entitled to a manor need not show by what title he 
 holds a court baron, for that is incident to a manor. (Rex v. Stan- 
 ton, Cro. Jac. 259, 260.). 
 
 But it is said the restraining act has made banking a franchise, and 
 that no person can now exercise the right, without showing a legisla- 
 tive grant. Suppose in England, after the restraining act, more than 
 six persons had associated as bankers, would an information, in nature 
 of a quo ivarranto, have been filed against them? No. Their acts 
 would have been illegal and void. How have the legislature assumed 
 this prerogative and franchise ? How have they taken to themselves 
 what was before the common right of every citizen ? By prohibiting 
 all unincorporated banking associations. Is everything which is made 
 the subject of exclusive right or grant a franchise, and to be tried by
 
 Il6 PEOPLE V. UTICA INSURANCE COMPANY. 22 
 
 a quo warranto ? Ferries, running of stages, and steamboats are made 
 exclusive rights, yet it has never been supposed that an information 
 in nature of quo warranto would lie in case of any invasion of these 
 rights. 
 
 Again, the restraining act is not in conjunctive; it declares that "no 
 person unauthorized by law shall subscribe to, or become a member 
 of, any association, institution or company, or proprietor of any 
 bank or fund for the purpose of issuing notes, receiving deposits, mak- 
 ing discounts, or transacting any other business which incorporated 
 banks may or do transact, by virtue of their respective acts of incor- 
 poration." By this act the legislature assume the rights specified. 
 They do not resume a franchise. If the legislature can thus assume 
 all rights common to the citizen, there is no commercial business what- 
 ever which they may not prohibit ; and so the chamber of commerce 
 apprehended. And on their petition the sections to the act, 2yth 
 session, chapter 1 10, sections 8 and 9, were passed in explanation of 
 the restraining act. It was, in effect, an act to restrain commercial 
 partnerships or companies, but the explanatory sections do virtually 
 repeal the restraining act. 
 
 It may be said that banking is quasi a franchise or branch of preroga- 
 tive. But when every individual has a right to bank, how can it be, 
 in any degree or shape, a franchise? The act merely restrains asso- 
 ciations. Every citizen, or inhabitant, may, if he pleases, be a banker. 
 Can it be possible that the legislature may assume to itself the rights 
 of every citizen? Such is not the law of England. If it is the law of 
 any country, it is that of Turkey, where, alone it can be imagined that 
 the common rights of man should be doled out for the purposes of 
 gain. The mind revolts at the idea of a legislature bargaining out 
 the common rights of the citizen for money. If the exercise of the 
 right be injurious, prohibit it. What is granted should be given 
 freely. A contrary doctrine would be attended with the most per- 
 nicious effects. * * * 
 
 Van Buren in reply. * * * The general demurrer admits, that 
 the power exercised by the defendants is a franchise; and it follows, 
 that this is the proper remedy. But is it not a franchise? The 
 chancellor had no doubt on the question. He says, that "the right 
 of banking was formerly, a common law right belonging to indi- 
 viduals, and to be exercised at their pleasure. 
 
 But the legislature thought proper, by the restraining act of 1804, 
 which has since been re-enacted, to take away that right from all per- 
 sons not specially authorized by law. Banking has now become a fran- 
 chise derived from the grant of the legislature, and subsisting in those 
 only who can produce the grant ; if exercised by other persons, it is 
 the usurpation of a privilege for which a competent remedy can be 
 had by the public prosecutor in the supreme court." This ought, 
 perhaps, to be a sufficient authority on this question. But to pursue 
 it further: A franchise is a liberty or privilege. There is a distinction 
 between royal and common franchises between those of the sov- 
 ereign and those of the people, as the right of trial by jury. When
 
 22 THE CORPORATION AS A FRANCHISE. I 17 
 
 the colony became a sovereign and independent state the people suc- 
 ceeded to all the rights and privileges of English subjects, and more, 
 they succeeded to all the rights and privileges of the crown or sov- 
 ereign. The legislature have, accordingly, from time to time granted 
 various exclusive liberties and privileges, or franchises, to citizens. 
 By the restraining act of the nth of April, 1804, the legislature did 
 take to itself the right or liberty of banking. What was before com- 
 mon to all ceased to be so, and became a franchise or privilege in the 
 government, not to be exercised by citizens, unless by grant. Whether 
 this was a franchise in England or not, it is made a franchise here, 
 and the legislature were competent to make it so. It is true that pri- 
 vate individuals may bank, but the defendants are an association car- 
 rying on banking business in violation of the act of the nth of April, 
 1804, passed expressly to prevent any unauthorized or unincorporated 
 association from banking. Being a privilege, then, which the defend- 
 ants could not lawfully exercise without a grant from the legislature, 
 it comes within the very definition which has been given of a franchise. 
 We could not proceed by indictment, for the act gives a penalty, and 
 not to the people, but to the informer. If this remedy does not lie, 
 there is no remedy, civil or criminal. It is, at least, a liberty in the 
 nature of a franchise ; and this is the only and proper remedy. * * * 
 
 THOMPSON, Ch. J., delivered the opinion of the court. * * * It may 
 safely be admitted, that formerly the right of banking was a common 
 law right belonging to individuals and to be exercised at their pleasure. 
 It can not, however, admit of a doubt that the legislature had author- 
 ity to regulate, modify or restrain this right. This they have done by 
 the restraining act of 1804 (sess. 27, ch. 117), and which has since 
 been re-enacted and continued in full force (2 N. R. L. 234).' The 
 construction which has been given by this court to the act is, that 
 it extends only to associations or companies formed for banking pur- 
 poses, and not an individual who carries on banking operations alone, 
 and on his own credit and account (14 Johns. Rep. 205). The right 
 of banking, therefore, by any company or association, has, since the 
 restraining act, become a franchise, or privilege, derived from the grant 
 of the legislature, and subsisting only in such companies or associations 
 as can show such grant. The defendants have, accordingly, set up, 
 as their authority or charter, for the exercise of this privilege, an act 
 passed the 2pth of April, 1816, entitled "an act to incorporate the 
 Utica Insurance Company." The real inquiry is whether this act 
 contains any such grant of banking privileges. * * * 
 
 Many powers and capacities are tacitly annexed to a corporation duly 
 created ; but they are such only as are necessary to carry into effect 
 the purposes for which it was established. The specification of certain 
 powers operates as a restraint to such objects only, and is an implied 
 prohibition of the exercise of other and distinct powers. A contrary 
 doctrine would be productive of mischievous consequences, especially 
 with us, where charter privileges have been so alarmingly multiplied. 
 * * * I am, accordingly, of opinion that the defendants are un- 
 
 1 1 R. S. 712.
 
 Il8 PEOPLE V. UTICA INSURANCE COMPANY. 22 
 
 authorized, by law, to enter into such business, and that judgment of 
 ouster ought to be rendered against them. 
 
 SPENCER, J. Two questions have been brought forward in the ar- 
 gument: (i) Whether an information in the nature of quo warranto 
 will lie in this case. (2) Whether the defendants have authority, 
 under the act incorporating the Utica Insurance Company, to carry on 
 banking operations in the mariner set forth in their plea. 
 
 The statute (i N. R. L. 108) (2 R. S. 581) gives this writ against 
 any person who shall usurp, intrude into or unlawfully hold and execute 
 any office or franchise within this state ; and if the right set up by the 
 defendants is a franchise, and the act under which they claim to exercise 
 it does not confer it, then the defendants are subject to this prosecution. 
 
 A franchise is a species of incorporeal hereditament ; it is defined 
 by Finch (164) to be a royal privilege, or a branch of the king's pre- 
 rogative subsisting in the hands of a subject ; and he says that fran- 
 chises being derived from the crown, they must arise from the king's 
 grant, or, in some cases, may be held by prescription, which presup- 
 poses a grant ; that the kinds are various, and almost infinite, and 
 they may be vested in natural persons or in bodies politic. 
 
 All the elementary writers agree in adopting Finch's definition of a 
 franchise, that it is a royal privilege or branch of the king's preroga- 
 tive, subsisting in the. hands of a subject. 
 
 An information, in the nature of a writ of quo warranto, is a sub- 
 stitute for that ancient writ, which has fallen into disuse ; and the 
 information which has superseded the old writ is defined to be a 
 criminal method of prosecution, as well to punish the usurper by a 
 fine for the usurpation of the franchise, as to oust him, and seize it for 
 the crown. It has, for a long time, been applied to the mere purpose 
 of trying the civil right, seizing the franchise or ousting the wrongful 
 possessor, the fine being nominal only. (2 Inst. 281, pi. 1253 Burr. 
 1817, 4 Term Rep. 381, i Bulst. 55.) 
 
 If there are certain immunities and privileges in which the public 
 have an interest, as contra-distinguished from private rights, and 
 which can not be exercised without authority derived from the sover- 
 eign power, it would seem to me that such immunities and privileges 
 must be franchises ; and the act for rendering the proceedings upon 
 writs of mandamus, and informations in the nature of quo warranto, 
 more speedy and effectual, presupposes that there are franchises, other 
 than offices, which may be usurped and intruded into. 
 
 If in England, a privilege in the lands of a subject, which the king 
 alone can grant, would be a franchise, with us a privilege, or immun- 
 ity of a public nature, which can not legally be exercised without 
 legislative grant, would be a franchise. The act commonly called the 
 restraining law (sess. 27, ch. 114), (i R. S. 712) enacts, that no per- 
 son, unauthorized by law, shall subscribe to, or become a member of, 
 any association, or proprietor of any bank or fund, for the purpose 
 of issuing notes, receiving deposits, making discounts or transacting 
 any other business which incorporated banks do, or may transact, by 
 virtue of their respective acts of incorporations.
 
 22 THE CORPORATION AS A FRANCHISE. I IQ 
 
 Taking it for granted, at present, for the purpose of considering 
 whether the remedy adopted is appropriate, that the defendants have 
 exercised the right of banking, without authority, and against the 
 provisions of the restraining act, they have usurped a right which the 
 legislature have enacted should only be enjoyed and exercised by 
 authority derived from them. The right of banking, since the re- 
 straining act, is a privilege or immunity subsisting in the hands of 
 citizens, by grant of the legislature. The exercise of the right of 
 banking, then, with us, is the assertion of a grant from the legisla- 
 ture to exercise that privilege, and consequently it is the usurpation 
 of a franchise, unless it can be shown that the privilege has been 
 granted by the legislature. An information, in the nature of a writ 
 of quo warranto, need not show a title in the people to have the par- 
 ticular franchise exercised, but calls on the intruder to show by what 
 authority he claims it, and if the title set up be incomplete, the peo- 
 ple are entitled to judgment. (2 Kyd on Corp., 399 ; 4 Burr. 21467.) 
 
 This position is illustrated by the nature and form of the informa- 
 tion ; the title of the king is never set forth ; but after stating the fran- 
 chise usurped, the defendant is called upon to show his warrant for 
 exercising it. 
 
 This consideration answers the argument urged by the defendant's 
 counsel, that banking was not a royal franchise in England, and that 
 it is not a franchise here which the people, in their political capacity, 
 can enjoy ; for if their title to enjoy it need not be set out in the infor- 
 mation, it is not necessary that it should exist in them at all. In the case 
 of The King v. Nicholson and Others (r Str. 303), it appeared that 
 by a private act of parliament for enlarging and regulating the port of 
 Whitehaven, several persons were appointed trustees, and a power 
 was given to them to elect others upon vacancies by death or other- 
 wise. The defendants took upon them to act as trustees without such 
 an election ; and upon motion for an information in the nature of a 
 quo warranto against them, it was objected, by the counsel for the de- 
 fendants, that the court never grants these informations but in cases 
 where there is usurpation upon some franchise of the crown ; whereas, 
 in that case the king alone could not grant such powers as are exer- 
 cised by the trustees, the consequence of which was, that this author- 
 ity was no prior franchise of the crown. To this it was answered, 
 and resolved by the court, that the rule laid down was too general, for 
 that informations had been constantly granted when any new jurisdic- 
 tion or public trust was exercised without authority ; and leave to file 
 an information was, accordingly, granted. This case is a strong au- 
 thority in favor of this proceeding. 
 
 Many cases might be cited, in which informations, in the nature of 
 quo -warranto, have been refused, where the right exercised was one 
 of a private nature to the injury only of some individual. In the 
 present case, the right claimed by the defendants is in the nature of a 
 public trust; they claim, as a corporation, the rights of issuing notes, 
 discounting notes and receiving deposits. The notes they issue, if 
 thi-ir claim be well founded, arc not obligatory on the individuals who
 
 120 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 compose the direction or are proprietors of the stock of the corpora- 
 tion. These notes pass currently, on the ground that the corporation 
 have authority to issue them, and that they are obligatory on all their 
 funds ; the right claimed is one, therefore, of a public nature, and, as 
 I conceive, deeply interesting to the community ; and if the defendants 
 can not exercise these rights without a grant from the legislature ; if 
 they do exercise them as though they had a grant, they are, in my 
 judgment, usurping an authority and privilege of a public kind ; and 
 we perceive that it is not necessary that the right assumed should be a 
 prior franchise of the crown, or of the people of the state. 
 
 Had the defendants claimed and exercised the right of banking as 
 private individuals, I agree that an information would not lie against 
 them ; they would have been subject only to the penalties inflicted by 
 the act; but they claim the privilege as a corporation, and under a 
 grant from the legislature. If they have not that grant, they have 
 exercised and usurped a franchise, and the remedy pursued is well 
 adapted to the case. * * * 
 
 Judgment of ouster. 
 
 Note. See 1896, Meadowcroft v. People, 163 111. 56, 54 Am. St. 447 ; State v. 
 Woodmansee, 1 N. Dak. 246. But see 1892, State v. Scougal, 3 S. Dak. 55, 44 
 Am. St. R. 756, holding that "Banking was not a franchise at common law, 
 and except as to the privilege of issuing notes to circulate as money, can not 
 be made such by the legislature. See also 1885, In Matter of Jacobs, 98 N. Y. 
 98, 50 Am. Rep. 636 (act forbidding manufacture of cigars in certain ways and 
 places held unconstitutional) ; 1885, People v. Marx, 99 N. Y. 377, 52 Am. Rep. 
 34 (prohibiting sale of oleomargarine). Also 1893, Braceville Coal Co. v. 
 People, 147 111. 66, 37 Am. S. R. 206, as to the constitutional restrictions upon 
 the police power of the legislature. As to corporate franchises particularly see 
 cases in addition to those given in text: 1838, Regents v. Williams, 9 Gill & 
 J. (Md.) 365, 31 Am. D. 72; 1886, Appeal of Pittsburgh, etc., R. R. Co., 122 
 Pa. St. 511, 9 Am. St. 128; infra, p. 1342; 1846, Enfield Toll Bridge Co. v. Hart 
 ford, etc., R. R. Co., 17 Conn. 454, 44 Am. Dec. 556; 1892, Mayor, etc., v. 
 Houston, etc., Ry. Co., 83 Tex. 548, 29 Am. St. R. 679; 1890, Macon, etc., R. 
 R. Co. v. Gibson, 85 Ga. 1, 21 Am. St. R. 135; 1846, Miners' Bank v. United 
 States, Morris (Iowa) 482, 43 Am. D. 115. 
 
 Sec. 23. Same. 
 
 n /u3 
 
 SPRING VALLEY WATER- WORKS v. SCHOTTLER ET AL. X 
 1882. IN THE SUPREME COURT OF CALIFORNIA. 62 Cal. 69-119.* 
 
 [Appeal by plaintiff from judgment of the superior court of the city 
 and county of San Francisco, denying a writ of review, and confirm- 
 ing the action of the board of equalization of that city and county, in 
 raising the assessment of the franchise of the water-works company 
 from $5,000 to $5,000,000. The state constitution (art. 13, i) 
 provided: "All property in the state * * * shall be taxed in pro- 
 portion to its value, to be ascertained as provided by law. The word 
 'property,' as used in this article and section, is hereby declared to in- 
 
 1 Statement of facts condensed. Parts of arguments and opinion omitted. 
 1 Affirmed by U. S. Sup. Ct., Spring Valley W. W. v. Schottler, 110 U. S. 347.
 
 $ 23 THE CORPORATION AS A FRANCHISE. 121 
 
 elude moneys, credits, bonds, stocks, dues, franchises and all other 
 matters and things, real, personal and mixed, capable of private own- 
 ership." The water-works company was organized under general 
 acts of 1850, 1853, 1858, etc., giving it the power of perpetual suc- 
 cession for fifty years, to sue and be sued, to make and use a seal, 
 hold, purchase and convey necessary real and personal property, ap- 
 point necessary officers and agents, divide its stock into shares, make 
 by-laws to regulate its management and regulate the transfer of stock ; 
 to exercise power of eminent domain, to use streets, alleys, ways, etc., 
 necessary for laying its pipes, to furnish water to the inhabitants at 
 rates fixed in a prescribed way, and the further right to "all the privi- 
 leges, immunities and franchises that might be thereafter granted to 
 any individual or corporation relating to the introduction of fresh 
 water into any city or town of the state for the use of the inhabitants 
 thereof." The state constitution also provided (art. xi, 19): "In 
 cities where there are no public works owned by the municipality * * * 
 any individual or company duly incorporated for that purpose shall 
 (subject to certain provisions as to damages) have the privilege of 
 using the streets for laying down pipes, etc."] 
 
 Fox & Kellogg, for appellant, argued : 
 
 * * * In making up the assessment, the revenue officers seem to 
 have taken it for granted that because franchises may be property, they 
 are ex necessitate liable to assessment ; and to have overlooked the pro- 
 vision of the constitution and the statute, that they can only be prop- 
 erty and subject to taxation when "capable of private ownership." 
 According to their theory, the elective franchise, the freedom of speech, 
 the freedom of the press, the most valuable of all franchises, are liable 
 to assessment and subject to taxation. But these and a hundred other 
 franchises are not "capable of private ownership," and therefore not 
 "property," and, not being property, are not subject to taxation. 
 
 We submit that nothing but "property" is subject to assessment and 
 taxation, in the form now under consideration, under the constitution 
 or laws of this state. Only those "franchises" can be classed as 
 "property * * * capable of private ownership," which are de- 
 fined by the supreme court of the United States, in Bank of Augusta 
 v. Earle, 13 Pet. 519, as being "special privileges conferred by gov- 
 ernment on individuals, which do not belong to the citizens of the 
 country generally, or by common right." Wherever we find a fran- 
 chise held to be property, we find it to be of the class thus clearly 
 defined by the highest tribunal in the land. Of these are street rail- 
 roads, turnpike roads, bridges, ferries, wharves and the like. 
 
 But the appellant in this case possesses no such franchise. There 
 is no right or privilege which it can name, or upon which it can place 
 its hand and say, "This is mine;" none that is or can be held by 
 it in "private ownership." It owns no franchise; it simply enjoys 
 the privileges conferred by law. Its privileges are these and these 
 only: (i) The right of corporate existence. This is a privilege 
 granted by the legislature to all the people of the state, and any five 
 of its inhabitants may enjoy that franchise at any time, when they see
 
 122 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 fit to incorporate for any purpose for which men may contract or asso- 
 ciate themselves together. (Civil Code, 286.) (2) The right to 
 acquire property, when it is absolutely necessary, and can not other- 
 wise be acquired for certain of its corporate uses, by condemnation. 
 This is a right which can never be exercised without enormous cost, 
 proportioned to the value of the thing acquired, and which is not, and 
 can not be held in private ownership. 
 
 It is a right held in common by all corporations organized for the 
 purpose of supplying cities and towns with water as well as many 
 others, and there is no limit to the number of corporations which 
 may organize and actually engage in the business of supplying the 
 same city or town. (See Statute, 1858, p. 218; Code of Civil Pro- 
 cedure, 1237.) (3) The rig-ht to lay and maintain pipes in the streets 
 and to collect water rates. Like the two preceding, so of this. It 
 is not a right which is or can be held "in private ownership." By 
 the statute of 1858, above cited, and under which the appellant is 
 organized, it is a right guaranteed to every corporation organized 
 for the purpose of supplying water in cities and towns, with no limi- 
 tation upon the number that may engage in the same business in the 
 same city or town. By the codes the same right is also guaranteed to 
 any corporation organized for such purpose; but under them it could 
 only be exercised when thereunto authorized by ordinance of the city. 
 But by the same section of the code, the city authorities were pro- 
 hibited from granting any exclusive privilege of the kind. (See Civil 
 Code, 548, 549.) But since the passage 'of both the statute and 
 the code, the people, in the majesty of their power, have taken away 
 even the limitations of those laws, by which the right to exercise the 
 privilege was limited to corporations, and now it is a right common 
 to every person in the state whether incorporated or not. 
 
 [After quoting provisions of art. xi, 19, of the constitution above given:] 
 
 Thus it will be seen that under the constitution of the state it is im- 
 possible that there should be a franchise of this kind that is "capable 
 of private ownership." It is one which belongs to everybody, and 
 whoever sees fit to use it need not even say to the municipal authoi"- 
 ities, "by your leave." All they have to do is to be subject to gen- 
 eral regulations for damages and indemnity for damages, and to 
 supervision of the street superintendent, as to the mode and manner 
 of using the street. It is true that article xiv of the constitution 
 declares the right to collect water rates to be a franchise which can 
 only be exercised by authority and in the manner prescribed by law. 
 But that does not militate against the proposition that it is a privilege 
 common to all, and not "capable of private ownership." It is 
 declared to be a franchise solely for the purpose of making it subject 
 to regulation by law, and without giving it the character of property 
 or private ownership. These are all the franchises, if they can be 
 called such, enjoyed by the appellant. They are all franchises which are 
 enjoyed by every inhabitant of the state, which are not ' ' capable of private 
 ownership," and therefore not liable to assessment under the law.
 
 23 THE CORPORATION AS A FRANCHISE. 12$ 
 
 F. G. Newland, for appellant, argued : 
 
 The term "franchise" in its broad sense, means "exemption from 
 constraint or oppression, liberty , freedom." ( Webster.} In this sense 
 the right to vote is termed a "franchise;" so also the right of trial by 
 jury, freedom of speech and freedom of the press are termed "franchises. ' ' 
 The declaration of the constitution that the word "property" includes 
 "franchises," certainly was not intended to apply to those general privi- 
 leges and rights which society has guaranteed and secured to individuals. 
 The "franchises" declared by the constitution to be property, must be 
 those special privileges, exclusive in their nature, conferred by the gov- 
 ernment on individuals, and having the incidents and attributes of 
 properly; that is to say, they must be capable of private ownership, of 
 assignment and of being inherited. In this sense they are included in 
 that division of property called "incorporeal hereditaments;" they are 
 things without body, capable of being inherited, such as the right of 
 "ferry," or the right of "fishery," or the right to maintain a "toll" 
 road, conferred upon the grantee, his heirs or assigns. It is evidently 
 in this sense that the word is used in the constitution, for in it the word 
 "property" is declared to include "moneys, credits, * * * fran- 
 chises and all other matters and things real, personal and mixed, 
 capable of private ownership." The last words attach to and qualify 
 all the taxable things referred to in the above quotation. 
 
 [After quoting the provisions of the constitution and general laws relating 
 to the formation of the corporations:] 
 
 Under these acts the petitioner has the following rights and privileges : 
 i. The right to be a corporation that is to say, the right as an arti- 
 ficial being, to act under an artificial name, and to exercise certain 
 powers and duties of a natural person, among others, to sue and be 
 sued, and to purchase, hold, sell and convey real and personal prop- 
 erty. Under the act of 1853. any three or more persons could asso- 
 ciate themselves together and form a water-company, by signing and 
 filing the proper certificate. This was a privilege made by the laws 
 of common right and general enjoyment. All persons could exercise 
 it. Under the civil code, section 286, "Private corporations may be 
 formed for any purpose for which individuals may lawfully associate 
 themselves," and any five persons may associate themselves together 
 and form such corporation. 
 
 It appears, then, that the right to be a corporation is simply a 
 privilege conferred by the general law upon any number of persons, not 
 less than three in the one case or five in the other, whoever they may 
 be, who may wish to associate themselves together, to exercise, as an 
 associated body, under an artificial name, certain powers and perform 
 certain duties of a natural person. In other words, a corporation is a 
 bundle of faculties. Could the faculty of a natural person to sue- and 
 be sued, or his faculty to acquire and possess property, be assessed as 
 property? The right to the things sued for, which constitute cho.si-s 
 in action, or the property acquired and possessed could be assessed 
 both to natural and artificial beings, but not mere faculties or pow- 
 ers. The right to be a corporation is simply the right to exist at the
 
 124 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 will of the creator. Can the right to exist either as a natural or arti- 
 ficial being be valued as property? 
 
 2. Under the act of 1858 water companies are granted the privilege 
 of exercising the power of eminent domain; but they exercise this privi- 
 lege simply as the agents of the state, for the purpose of serving a 
 public use, to which their powers and property are delegated. This 
 agency may be revoked at any time. It is a naked power not a 
 power coupled with an interest. Can the agency of the agent, whether 
 natural or artificial, be assessed as property? * * * 
 
 3. The only other right or privilege conferred by the general law of 
 1858, upon water companies, is the right of laying 1 down pipes in the 
 streets of the city, and supplying the inhabitants with water at rates 
 fixed by law ; but this right is not only common to all water com.- 
 panies, but is also conferred by art. xi, 19, and art. xiv, of the new 
 constitution, on all individuals, so that this right which, if granted 
 absolutely and exclusively to a single individual or a single corpora- 
 tion, and his or its assigns, might be regarded as property, has been 
 by the fundamental law of the state made a matter of common right 
 and general enjoyment. It is true that everybody does not exercise 
 this right or privilege, just as everybody does not exercise the right^to 
 vote, but everybody has the right to exercise it, and it is even more 
 unlimited and general than the right to vote, for the latter right is 
 conferred only upon native-born inhabitants over twenty-one years 
 of age, and upon naturalized citizens, whilst the former right can 
 be exercised by anybody, whether adult or minor, citizen or alien. 
 This right or privilege has none of the incidents of ownership ; no one 
 can sell it, for every body has it, and no person can gain by the acces- 
 sion of the right of another. 
 
 We have thus classified all the rights and privileges of water com- 
 panies under the general law, and the constitution of the state, and we 
 find that they are all subject to alteration and entire revocation by the 
 state ; they are privileges enjoyed, not property owned. Webster de- 
 fines property to be : "4. The exclusive right of possessing, enjoy- 
 ing and disposing of a thing, ownership. 6. An estate, whether in 
 lands, goods or money." Blackstone, book i, page 138, speaks of 
 property as an absolute right "which consists in the free use, enjoy- 
 ment and disposal of all his acquisitions without any control or 
 diminution save only by the laws of the land," and in another place, 
 book 2, page 2, speaks of the right of property as "that sole and de- 
 spotic dominion which one man claims and exercises over the exter- 
 nal things of the world in total exclusion of the right of any other 
 individual in the universe." Bouvier, in his Law Dictionary, in de- 
 fining the word property, says: "It is the right to enjoy and to dis- 
 pose of certain things in the most absolute manner, * * * so 
 that property, considered as an exclusive right to things contains not 
 only a right to use those things, but a right to dispose of them, either 
 by exchanging them for other things, or by giving them away to any 
 other person without any consideration, or even throwing them away." 
 
 Can it be said that any of the rights or privileges conferred on the
 
 23 THE CORPORATION AS A FRANCHISE. 12$ 
 
 petitioner by general laws, subject to alteration, amendment or repeal, 
 come within the definition of the term "property" ? * * * Under 
 the new constitution it is impossible to grant a franchise, in the property 
 sense of that term, to either natural or artificial persons, for it declares 
 (art. i, 21 ); "No special privileges or immunities shall be granted 
 which may not be altered, revoked or repealed by the legislature. 
 Nor shall any class of citizens be granted privileges or immunities 
 which upon the same terms shall not be granted to all citizens." And, 
 again (art. 4, 25): "The legislature shall not pass local or special 
 laws in any of the following enumerated cases, that is to say: Grant- 
 ing to any corporation, association or individual any exclusive right, 
 privilege or immunity in all cases where a general law may be made 
 applicable." 
 
 It is evident, therefore, that the day of "franchises" as property is 
 over. The whole tendency of the civilized government, is to do away 
 with special or exclusive privileges, and wherever a right is extended by 
 the government to make it common to all. Equality of right, equality of 
 privilege, and equality of burden, are now the crowning franchises of 
 all persons, natural and artificial, in this state. The great difficulty 
 in construing a word like "franchise," which has figured extensively 
 in the evolution of government, is that the attributes of a by-gone age 
 are likely to be given to it notwithstanding the modifications that may 
 have taken place in its character, and scope. 
 
 As already stated the power of society over the individual is abso- 
 lute. It is called the power of government, or the police power. 
 Every privilege which the individual, either specially or as a member 
 of a class or in common with all other individuals enjoys, may be 
 regarded in one sense as a grant from the government. 
 
 The despot who rules with the consent or by the sufferance of society 
 has absolute power over the vocation of life. He can grant to a cer- 
 tain individual the right to pursue a special trade exclusively, or he can 
 throw open such trade or occupation to all. When such a grant is 
 made to an individual, his heirs and assigns, it may be regarded as 
 his property, and when such a grant is -made to all individuals it is no 
 less a franchise; it is a freedom, a liberty, but not "property." If 
 we look back to the times of Elizabeth, James I and Charles I, we 
 will find many examples of special grants which partook of the nature 
 of property. Hallam, in his Constitutional History of England, vol. 
 I, ch. v, speaking of the reign of Elizabeth, says: "The crown either 
 possessed or assumed the prerogative of regulating almost all matters 
 of commerce at its discretion." 
 
 "Patents to deal exclusively in particular articles, generally of for- 
 eign growth, but reaching in some instances to such important neces- 
 saries of life as salt, leather and coal, had been lavishly granted to the 
 courtiers, with little direct advantage to the revenue. They sold them 
 to companies of merchants, who, of course, enhanced the price to the 
 utmost ability of the purchaser." 
 
 "In 1601 parliament made a bolder and more successful attack on 
 the administration than this reign had witnessed. The grievance of
 
 126 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 monopolies had gone on continually increasing: scarce any article 
 was exempt from these oppressive patents. When the list of them 
 was read over in the house a member exclaimed : 'Is not bread among 
 the number?' The house seemed amazed. 'Nay,' said he, 'if no 
 remedy is found for these, bread will be there before the next parlia- 
 ment.'"' 
 
 It was in those times that the East India Company was organized 
 under letters patent from the crown, and vested with the exclusive 
 right to trade in India. Monopolies were granted by letters patent. 
 conferring the exclusive right to deal in necessaries of life, such as 
 coal, iron, soap, salt, leather, tobacco, beer, hops, linen, etc. (Bright's 
 English Hist., vol. n, p. 629.) Rights of ferry, rights of wharfage, 
 rights of fishing, rights of chase and of toll-roads, etc., were also 
 granted. All these grants, as a rule, were made by letters patent, 
 running to an individual, his heirs or assigns, and exclusive in their 
 nature. They w r ere protected by the courts as property, and it was 
 held by the courts that no grant could be made by the sovereign 
 which would interfere with or impair the exercise of the previous 
 grant. They were therefore termed incorporeal hereditaments, and, 
 Kent, in speaking of such franchises, says (Kent's Com., vol. 3, page 
 458) : * 4 Another class of incorporeal hereditaments are franchises, 
 being certain privileges conferred by grant from government, and 
 vested in individuals. In England they are very numerous and are 
 understood to be royal privileges in the hands of a subject. They 
 contain an implied covenant on the part of the government not to 
 invade the rights vested. * * * The government can not resume 
 them at pleasure or do any act to impair the grant without a breach of 
 contract. * * * An estate in such a franchise and an estate in 
 law rest upon the same principle, being equally grants of a right or 
 privilege for an adequate consideration. If the creation of a franchise 
 be not declared to be exclusive, yet it is necessarily implied in the 
 grant, as in the case of the grant of the ferry, bridge, or turnpike, or 
 railroad, that the government will not, either directly or indirectly, 
 interfere with it, so as to destroy or materially impair its value. 
 Every such interference, whether it be bv the creation of a rival fran- 
 chise or otherwise, would be in violation or in fraud of the grant." 
 
 Such was the nature of franchises in England, and also in this 
 country at the time Chancellor Kent wrote. In the celebrated case 
 of Dartmouth College v. Woodward, 4 Wheaton 519, it was decided 
 that the charter granted by the British Crown to Dartmouth College 
 was a contract, and that an act of the legislature of New Hampshire 
 altering the charter was an act impairing the obligation of a contract, 
 and was unconstitutional and void. Justice Washington said (page 
 657) : "To this grant or this franchise the parties are the king, and 
 the person for whose benefit it is created or trustees for them. The 
 assent of both is necessary. The subjects of the grant are not only 
 privileges and immunities, but property. * * * Certain obliga- 
 tions are created, binding both on the grantor and grantee. On the 
 part of the former, it amounts to an extinguishment of the king's pre-
 
 23 THE CORPORATION AS A FRANCHISE. 12J 
 
 rogative to bestow the same identical franchise on another corporate 
 body, because it would prejudice his prior grant. It implies, there- 
 fore, a contract not to reassert the right to grant the franchise to an- 
 other, or to impair it." 
 
 Justice Story says (p. 700) : "In respect to corporate franchises 
 they are, properly speaking, legal estates vested in the corporation it- 
 self as soon as it is in esse. They are not mere naked powers granted 
 to the corporation, but powers coupled with an interest." 
 
 Mr. Webster, in his memorable argument in that case said : ''Hume 
 gives the reason : It is that such franchises were regarded in a most 
 emphatic sense as private property. If it could be made to appear 
 that the trustees and the president and professors held their offices and 
 franchises during the pleasure of the legislature and that the property 
 holden belonged to the state, then indeed the legislature have done no 
 more than they had a right to do. But this is not so. The charter is 
 a charter of privileges and immunities, and these are holden by the 
 trustees expressly against the state forever." 
 
 The decision of this case attracted great attention. Its effect was 
 feared ; it placed the creature beyond the power of the creator, and as 
 a result of it the various states adopted constitutional amendments, 
 providing for the formation of corporations under general laws, which 
 should be subject to alteration, amendment or repeal. The courts 
 themselves in a measure shrank back from the doctrine of that case, 
 and in a subsequent case, argued in the supreme court of the United 
 States, entitled Charles River Bridge v. Warren Bridge et al. (n 
 Peters 420), they modified the doctrine which had previously existed 
 as to the exclusiveness of franchises, and declared 4i that a franchise 
 conferred by the government was not exclusive unless so expressed in 
 the grant." This remained the settled doctrine of the American 
 courts since that decision. 
 
 It will be observed, therefore, that the tendency of the people, act- 
 ing through constitutional conventions and representative legislatures 
 and of the courts, has been to modify the doctrine of the Dartmouth 
 College case, and to make powers conferred by the government upon 
 persons, natural or artificial, mere privileges enjoyed, not property 
 owned. This tendency has reached its highest development in our 
 state, where the legislature is not permitted to grant any special privi- 
 lege to any person, natural or artificial, and where all privileges con- 
 ferred by the sovereign power are made of common right and general 
 enjoyment. * * * 
 
 The only case which has been called to our attention in which a 
 tax has been imposed upon the franchise of a corporation as property, 
 separate and apart from the property in connection with which it is 
 exercised is the case of Exchange Bank of Columbus v. Hines, 3 
 Ohio St. 7, in which the court declared the tax invalid, in the follow- 
 ing language : * * * 
 
 Does a corporate franchise, in sober truth and reality, possess the 
 essential qualities of property ? It is said that the corporate franchise 
 of a bank, conferring a peculiar legal capacity, and the high function
 
 128 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 of making and circulating paper money, is valuable indeed, a thing 
 of great value. But value is not the distinguishing attribute of prop- 
 erty. The right of suffrage is esteemed valuable ; a public office, 
 with its emoluments, is valuable ; a license to keep a tavern, as 
 formerly granted in this state, or a license to carry on any special 
 business which is prohibited without a special grant of authority from 
 the government, may be valuable, and a right to either of these things 
 may be asserted and maintained in a court of justice, yet neither of 
 them possesses the essential qualities which constitute property. Our 
 right to the free use and enjoyment of things which are in common, 
 such as air, light, water, etc., is valuable; and our right to the free 
 use of the public highways, and to many of the privileges and ad- 
 vantages derived from the government may be valuable, and may be 
 maintained by legal process. Yet none of these things come within 
 the denomination of property. Those things which constitute the sub- 
 ject-matter of private property are such as the owner may exercise 
 exclusive dominion over, in the use, enjoyment and disposal of them, 
 without any control or diminution save only by the laws of the land. 
 (i Wend. Blackstone, 138.) It is a fundamental principle that prop- 
 erty considered as an exclusive right to things contains not only a right 
 to use those things, but a right to dispose of them, either by exchang- 
 ing them for other things, or by giving them away to any other person, 
 without any valuable consideration in return, or even of throwing- 
 them away, which is usually called relinquishing them." (Ruther- 
 ford's Institutes 20; Puffendorff, c. 9, b. 7.) 
 
 "It is said that capability of alienation, or disposal, either by sale, 
 devise, or abandonment, is an essential incident to property." (2 
 Kent's Com. 317.) "^4 corporate franchise, therefore, being a mere 
 privilege, or grant of authority by the government, is not property 
 of any description, and consequently not subject to taxation under 
 the above provision of the constitution." * * * 
 
 The constitution not only provides that "all property shall be taxed 
 in proportion to its value," but that such value is "to be ascertained 
 as provided by law." The only rule laid down in the Political Code 
 for the assessment of property is that contained in section 3637, to wit: 
 "All taxable property must be assessed at its full cash value," which 
 latter term is defined ( 3617, subd. 5) as follows: "The terms 
 value and cash value mean the amount at which the property would 
 be taken in payment of a just debt due from a solvent debtor." 
 
 The rule applied was one which it was declared had the approval 
 of the supreme court, in the case of San Jose Gas Co. v. January, 
 viz., by ascertaining, first, the market value of the stock of the 
 corporation ; and secondly, the assessed value of the property thereof, 
 and deducting the latter from the former, the difference was declared 
 to be the value of the franchise. * * * 
 
 The rule applied does not operate equally and uniformly upon all 
 franchises, for in the case of a franchise enjoyed by an individual, 
 there would be no stock from the aggregate market value of which 
 could be deducted the value of the tangible property in order to
 
 23 THE CORPORATION AS A FRANCHISE. 1 29 
 
 ascertain the value of the franchise, nor is it an equal or uniform 
 rule in any sense, for it applies only to corporations, whereas the 
 business of private individuals and firms should be subjected to 
 the same mode of assessment. A mercantile firm may have a stock 
 of goods on hand worth $100,000, and yet its business, the good will, 
 so called, with the advantages which years of skillful and honorable at- 
 tention to business united with fortunate circumstances may have given, 
 may be worth five times as much as the stock, and yet the assessor asses- 
 ses only the tangible property, and lets the good-will go free. The law 
 provides that "private corporations may be formed for any purpose 
 for which individuals may lawfully associate themselves." (C. C., 
 286.) Such a mercantile firm could, if it chose, form itself into a 
 mercantile corporation. With a stock of goods on hand never ex- 
 ceeding $100,000 it might earn, with a skill and ability of its mem- 
 bers through the large custom acquired, a liberal rate of interest 
 on $500,000, and the stock would sell in the market for that sum. In* 
 such cases, the assessor, pursuing the rule contended for here, would 
 determine the value of the franchise to be $400,000 ; whereas, as a 
 matter of fact, the right to be a corporation would be utterly valueless 
 to a firm, and the difference between the market value of the stock 
 and the value of the tangible property would simply be the good-will 
 of the business ; this would exist whether the concern was incorpo- 
 rated or not; and yet the difference is assessed only to corporations 
 and not to individuals. 
 
 A more glaring instance of the absurdity of the rule applied is 
 that of a newspaper whose value is almost entirely made up of skill, 
 ability, enterprise and good-will. Take the case of the two leading 
 newspapers of this city, the Chronicle and Call, owned by private pro- 
 prietors. Each is valued at about $300,000, and probably yields its 
 proprietors a liberal interest upon that amount. Probably the only 
 property connected with either of these papers which the assessor would 
 assess are the printing presses and fixtures, worth, say, $30,000 ; but 
 if either paper should be incorporated into a joint-stock company, 
 with a capital stock of $300,000, its stock would probably sell for 
 that amount, as the value of the stock in the market is largely de- 
 termined by the rate of interest paid as dividends upon it. The as- 
 sessor then, in that case, would assess the franchise, that is, the privi- 
 lege of conducting the same business in the name of an artificial being, 
 at the difference between the value of the printing press and fixtures, 
 and the market value of the stock, namely: $270,000. So the mere 
 change in the conduct of the business of such a newspaper, from the 
 hands of a natural person to those of an artificial person, would result 
 in an assessment upon the latter ten times greater than upon the for- 
 mer, and yet this artificial person is a purely business corporation ; it 
 does not have the power of eminent domain, or exercise the royal 
 prerogative of collecting tolls ; the only franchise it possesses is the 
 right to be a corporation. * * * 
 
 THORNTON, J. * * * Blackstone says, in relation to franchises: 
 
 9 WIL. CASES.
 
 I3O SPRING VALLEY WATER- WORKS V. SCHOTTLER. 23 
 
 "Franchises and liberty are used as synonymous terms, and their defini- 
 tion is a royal privilege, or branch of the king's prerogative, subsisting 
 in the hands of a subject. Being, therefore, derived from the crown, 
 they must arise from the king's grant, or in some cases may be held 
 by prescription, which, as has been frequently said, presupposes a 
 grant. The kinds of them are vai'ious and almost infinite," and adds 
 "that they may be vested in either natural persons or bodies politic, 
 in one man or in many." And again on this subject he says: "To be 
 a county palatine is a franchise, vested in a number of persons. It 
 is likewise a franchise for a number of persons to be incorporated, 
 and subsist as a body politic, ivith a power to maintain perpetual 
 succession, and do other corporate acts; each individual member of 
 such corporation is also said to have a franchise or freedom." (2 Bl. 
 Com. 37.) 
 
 Kent defines franchises as "privileges conferred by grant from gov- 
 ernment, and vested in individuals." (3 Kent's Com. 458.) He 
 also says: "Corporations or bodies politic are the most usual fran- 
 chises known in our law." (Id. 459.) 
 
 In Pierce v. Emery, 32 N. H. 507, Perley, C. J., speaking for the 
 court, remarks: "A corporation is itself a franchise belonging to 
 the members of the corporation; and a corporation, being itself a 
 franchise, may hold other franchises as rights and franchises of the 
 corporation." And further : "A corporation, being itself a fran- 
 chise, consists and is made up of its rights and franchises." 
 
 In City of Bridgeport v. N. Y. & N. H. R. Co., 36 Conn. 266, 
 Butler, J., speaking for the court, uses this language in regard to a 
 railroad corporation: "The term 'franchise' has several significations, 
 and there is some confusion in its use. The better opinion deduced 
 from the authorities seems to be that it consists of the entire privileges 
 embraced in and constituting the grant." (See title "Franchise" in 
 Abbott's Law Diet., and cases there cited.) 
 
 It is true that the privileges so granted by the government do not 
 pertain to the citizens of the state by common right. But what is the 
 "common right" here referred to? Is it not a right which pertains to 
 the citizens by the common law, the investiture of which is not to be 
 looked for in any special law, whether established by a constitution 
 or an act of the legislature? Coke says: ''De commun droit of 
 common right this is by the common law, because the common law 
 is the best and most common birthright that the subject hath for the 
 safeguard and defense not only of his goods, lands and revenues, but 
 of his wife and children. * * * This common law of England is 
 sometimes called right, sometimes common right, and sometimes com- 
 munis justitia." (Coke's Inst. 142^.) The definition of -franchises 
 as special privileges conferred by government upon individuals, and 
 which do not belong to the citizens of the country generally of com- 
 mon right, had its origin in Bank of Augusta v. Earle, 13 Pet. 575. 
 A very learned and accurate writer, Mr. Emory Washburn, in his 
 work on Real Property (2d vol. 267), adopts this definition, and cites 
 as authority the case above referred to from 13 Peters. The same
 
 23 THE CORPORATION AS A FRANCHISE. 131 
 
 definition is quoted by Angell & Ames, in their work on Corporations, 
 from the case referred to. (See Ang. & Ames on Corp., 4.) 
 
 In the case in 13 Peters it was contended that under the laws and 
 constitution of Alabama the right of banking was a franchise. The 
 court refused to so hold, on the ground that the right of banking, at 
 common law, belonged to every citizen. (See, also, Curtis v. Leavitt, 
 15 N. Y. 170, opinion of Shanklin, J.) The discussion on the point 
 in the opinion shows clearly that "common right" is used with the 
 signification of common law." 
 
 We are of opinion that the common right refers to the right of citi- 
 zens, generally at common law. Such rights of citizens, though 
 frequently spoken of as franchises, are not the franchises here 
 meant; and it maybe conceded that where such rights are granted 
 to corporations, they are not franchises. But independent of the right 
 to exist as a corporation, and to exercise powers in its corporate ca- 
 pacity, there are privileges granted to the water-works, which do 
 not, by the common law, belong to citizens generally; such as the 
 right to lay down pipes in the streets, ways and alleys of a city, and 
 to collect rates for water furnished, which was held to be a franchise 
 in San Francisco v. Spring Valley Water-Works, 48 Cal. 493, and in 
 San Jose Gas Co. v. January, 57 Cal. 616. Conceding for the argu- 
 ment that the constitution, by section 19 of article xi, grants this right 
 to every person, it does not follow that it is not a franchise. They 
 are vested by a grant of the sovereign power, and not by the common 
 law ; and the generality of the grant does not deprive them of the 
 character of franchises. 
 
 The right to collect rates for use of water supplied to the city and 
 county of San Francisco, or the inhabitants thereof, which the appel- 
 lant has possessed at least ever since the act of 1858 went into effect, 
 is expressly declared to be a franchise by the constitution of the state 
 in the second section of article xiv, thereof. As has been said above, 
 the very existence of a corporation as such is a franchise, and it exer- 
 cises its franchise in every act which it performs as a corporation. In 
 the Bank of Augusta v. Earle, above cited, the supreme court of the 
 United States, speaking through Taney, C. J., in relation to the 
 making of contracts by corporations, which, by common right, indi- 
 viduals could make, said: "/ making such contracts, a corporation, 
 no doubt, exercises its corporate franchise. But it must do this 
 'whenever it acts as a corporation, for its existence is a franchise" 
 
 A corporation, whose existence is a franchise, may possess powers 
 and privileges, which, in themselves, are not franchises (such as the 
 right to bank, discussed in Bank of Augusta v. Earle, above cited, or 
 the right to buy and sell property, real and personal), but it usually 
 owns, along with such privileges, some that are franchises ; but 
 whether the powers be entirely of the kind which are franchises or 
 not, its existence and right to employ its corporate powers is a fran- 
 chise. This we think abundantly established by the cases above cited. 
 
 We have no doubt that it was the intention of those who frunu d 
 and ratified the constitution to place such franchises in the category of
 
 132 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 property to be taxed. The word "franchises, "as used in the first 
 section of article 13, is used generally without any qualifying words, 
 and is intended to embrace all franchises of the character above re- 
 ferred to, whether vested in individuals or bodies politic. A fran- 
 chise conferred on an individual to lay down pipes in the streets of a 
 city and to collect rates for water furnished a city or its inhabitants is 
 to be taxed in the same way as when vested in corporations. The law 
 in this respect is the same in regard to all persons, whether natural or 
 artificial. 
 
 It is contended that the clause, "and all other matters and things 
 real, personal and mixed, capable of private ownership," in section i 
 of article 13, qualifies the word "franchises" which precedes it. We 
 do not think so. The structure of the sentence forbids any such con- 
 struction. What is said before the employment of these words is 
 complete of itself, and needs nothing to show what was signified. 
 The words used show clearly that they were intended to add some- 
 thing to what preceded them, to refer to kinds of property not pre- 
 viously mentioned, net to qualify anything. They were doubtless in- 
 serted out of abundant caution to show that all kinds of property, 
 whether specifically enumerated or not, were intended to be included 
 in the property to be taxed, though not embraced in the specific 
 classes previously mentioned. They constitute a declaration that in 
 enumerating the property to be taxed it was not intended to confine 
 the enumeration to "moneys, credits, bonds, stocks, dues, franchises," 
 but to include all other kinds of property, and that by no construction 
 of the word property, as used in the section, were any kinds of prop- 
 erty to be left out. 
 
 But it is immaterial whether these words qualified "franchises" or 
 not, for the reason that the franchises so referred to are capable of 
 private ownership. To hold that a private corporation does not own 
 its franchise right, power and privileges would be both novel and un- 
 tenable. Admitting that under the law of the state there may be leg- 
 islation which might impair their value, it does not follow that it is 
 not owned as property, with all the rights which attach thereto. All 
 these rights exist until the legislative authority has acted so as to im- 
 pair them or take them away ; and until such legislation is enacted 
 the rights of property remain unimpaired. There has been no legis- 
 lation yet of the character as regards the appellant that has been called 
 to our attention, or that we have been able to discover. 
 
 This franchise of a corporation is sometimes classed as real estate 
 of that kind styled incorporeal hereditaments. (Enfield Toll Bridge Co. 
 v. Hartford and New Haven R. Co., 17 Conn. 40; s. c., 17 Conn. 
 462; Price v. Price's Heirs, 6 Dana 107; i Blackstone's Com., 20 
 22, 37, 38.) In the case cited from 17 Conn. 40, this was said of a 
 bridge corporation. The shares of stock of the water- works are by 
 statute made personal estate. (See act of 1853.) But whether real 
 or personal estate, they are property. Such franchises, as long as 
 they exist, are protected as property by the guarantee universal in the 
 states of the Union, which forbids their being taken except for public
 
 23 THE CORPORATION AS A FRANCHISE. 133 
 
 purposes and on compensation being made, (i Cooley's Con. Lim., 
 4th ed., 655, and cases cited in note 4.) During their existence they 
 are as fully protected by law as any other species of property. On 
 this subject see Wilmington R. Co. v. Reid, 13 Wall. 268; 3 Kent's 
 Com. 458; Hamilton County v. Massachusetts, 6 Wall. 633; People 
 v. Selfridge, 52 Cal. 331 ; T. & T. R. Co. v. Campbell, 44 Cal. 89; 
 O. R. Co. v. O. B. & F. V. R. Co., 45 Cal. 365. (See cases just 
 above cited from 17 Connecticut, and Norwich Gas-light Co. v. Nor- 
 wich City Gas Co., 25 Conn. 36.) 
 
 The franchise of a corporation is and can be 'well defined to be the 
 right of the corporation to exist and exercise the powers and privi- 
 leges vested in it by its charter. (Burr, on Tax., 83.) The fran- 
 chise is the faculty of the corporation. As said by Redfield in his 
 'work on railways: ''The faculty of a corporation is its organic 
 life; its corporate existence by which it is enabled to carry on busi- 
 ness', that which it derives from its charter of incorporation its cor- 
 porate franchise." (2 Redf. on Railways, 3d ed., 452.) In this 
 state, the charter is the statute or statutes granting and defining the 
 powers of the corporation, under which it is constituted and exists, 
 together with the instruments required to be executed by the provis- 
 ions of such statute or statutes. These are sometimes called the constat- 
 ing instruments. (Field on Corp., 34, n. 3.) Such franchises are 
 legal estates, not mere naked powers, and are powers coupled with an in- 
 terest, which vest in the corporation by virtue of its charter or constat- 
 ing instruments. (Society for Savings v. Coite, 6 Wall. 606; Provi- 
 dent Institution v. Massachusetts, 6 Wall. 622 ; Hamilton Co. v. Massa- 
 chusetts, 6 Wall. 638; Porter v. R. R. I. & St. L. R. Co., 76 111. 
 561.) That the state has full power to tax them, see same cases, 
 and State R. R. Tax Cases, 92 U. S. 603. In the case from 76 
 Illinois, above cited, it is said: "It is clear upon authority that the 
 franchise of a corporation is property, and as such it may be a proper 
 object of taxation." (P. 573.) In Veazie Bank v. Fenno, 8 Wall. 
 547, Chase, C. J., used this language: "Franchises are property, 
 often very valuable and productive property, and seem to be as 
 properly objects of taxation as any other property." Daniel, J.. de- 
 livering the opinion of the court in West River Bridge Co. v. Dix et 
 al., 6 How. 529, said: "We are aware of nothing peculiar to a 
 franchise which can class it higher, or render it more sacred than 
 other property. A franchise is property, and nothing more." (See 
 also Wilmington R. Co. v. Reid, 13 Wall. 264, and Monroe Savings 
 Bank v. The City of Rochester, 37 N. Y. 367.) In this last case 
 Fullerton, J., delivering the opinion of the court, said, in regard to n 
 statute declaring the privileges and franchises granted by the legisla- 
 ture to savings banks or institutions for savings, personal property, 
 and liable to taxation as such: "In declaring the privileges and 
 franchises of a bank to be personal property, the legislature has 
 adopted no novel principle of taxation. The powers and privileges 
 which constitute the franchise of a corporation are in a just sense 
 property, and quite distinct and separate from the property, which,
 
 134 SPRING VALLEY WATER-WORKS V. SCHOTTLER. 23 
 
 by the use of such franchise, the corporation may acqtiire. They are 
 so regarded by the latv, and so regarded by common acceptation." 
 
 That such franchises can be taxed according to the valuation arrived 
 at through an assessment is recognized in the case of the Freight Tax, 
 15 Wall. 282, and in the case of the State Tax on Railway Gross 
 Receipts, 15 Wall. 296. In the case of the State Railroad Tax Cases, 
 above cited from 92 U. S. Reports, a tax on the assessed value of 
 franchise and capital stock by the state of Illinois was sustained, 
 approving the decision to that effect in Porter v. R. R. I. & St. L. 
 R. R. Co., above cited from 76 Illinois. (See also Gordon v. Appeal 
 Tax Court, 3 How. (U. S.) 133, and Judge Redfield's comment on 
 this case in 2 Redf. on Railways, 453.) As to the extent of the power 
 of the state to tax, see Providence Bank v. Billings, 4 Pet. 562, and 
 Hamilton Co. v. Massachusetts, 6 Wall. 639. In the case in 4 Pet- 
 ers, Marshall, C. J., said: "All powers * * * over which the 
 sovereign power of a state extends are subjects of taxation. The 
 sovereignty of a state extends to everything which exists by its author- 
 ity, or is introduced by its permission." (4 Pet. 563.) The same 
 doctrine was declared in Osborne v. Bank of the United States, 9 
 Wheat. 738. From the foregoing cases, it would seem that there 
 can be no doubt of the power of a state to tax the franchise at its 
 assessed value. There may be more difficulty in arriving at its value 
 than that of a parcel of land or personal chattels, but still its value may 
 be estimated. When it is condemned for public use, the compen- 
 sation to be paid can be fixed. As is justly said in Porter v. R. R. I. 
 & St. L. R. R. Co., 76 111. 578: "We have never known it to be as- 
 serted that the value of a franchise is so indefinite and uncertain that 
 it can not be made the measure of a recovery when it is wrongfully 
 invaded; or that when it is taken and condemned for pubic use, it can 
 not be ascertained what compensation shall be made to its owner. It 
 is recognized in those respects as being capable of a definite valuation. 
 * * * If its value may be ascertained for those purposes, it may as 
 readily be ascertained for the purposes of taxation." As to value of 
 franchises, and that they possess a value beyond that belonging to the 
 tangible property of the corporation, see cases just above cited. 
 (Commonwealth v. Hamilton Mfg. Co., 12 Allen 298, and Com- 
 monwealth v. Gary Improvement Co., 98 Mass. 23.) 
 
 In this state, the constitution having declared that franchises are 
 property, and that all property in the state not exempt from taxation 
 shall be assessed in proportion to its value, to be ascertained as pro- 
 vided by law (Const., art. xiii, i), it would seem to follow that the 
 tax must be according to the valuation made by the officer appointed 
 for that purpose. If the state can impose a tax on the franchise of a 
 corporation in the nature of an excise or duty, it does not exclude the 
 taxation by a valuation made by an assessor. 
 
 That such a franchise as that held by the appellant was taxable in 
 this state, we think has been held by this court in two cases : Burke 
 v. Badlam, 57 Cal. 594; and San Jose Gas Company v. January, 57 
 Cal. 614. * * *
 
 23 THE CORPORATION AS A FRANCHISE. 135 
 
 When the matters in controversy in Burke v. Badlam originated, 
 the legislature had acted in regard to the assessments of property, and 
 enacted as follows: 
 
 "Shares of stock in corporations possess no intrinsic value over and 
 above the actual value of the property of the corporation which they 
 stand for and represent, and the assessment and taxation of such 
 shares and also of the corporate property would be double taxation. 
 Therefore all property belonging to corporations shall be assessed and 
 taxed, but no assessment shall be made of shares of stock; nor shall 
 any holder thereof be taxed therefor." (Pol. Code, 3608.) (It 
 may be remarked here that the constitutional validity of this section 
 was affirmed in Burke v. Badlam. (See 57 Cal. 602.) * * * 
 "The terms 'value' and 'full cash value' mean the amount at which 
 the property would be taken in payment of a just debt due from a 
 solvent debtor;" and "the term 'personal property' includes every- 
 thing which is the subject of ownership not included within the mean- 
 ing of the term real estate." 
 
 [Each person (including corporations) also must furnish a state- 
 ment of all property (including franchises) to the assessor, who is to 
 enter the franchise and its value separate from the other property ; the 
 assessor is to turn this statement over to the board of supervisors, who 
 is to equalize all assessments.] * * * 
 
 It appears from the record in this case that the board of supervisors, 
 in the exercise of its power of equalization, assessed the franchise of 
 the water-works by taking the aggregate of the market value of the 
 shares of stock in the company on the yth of March, 1881, and de- 
 ducting therefrom the value of the real and personal property of the 
 company, and held the difference to be the value of the franchise. 
 The market value of the shares was shown to the board by the testi- 
 mony of witnesses. Such a mode of arriving at the value of the fran- 
 chise appears to have been adopted by the assessor in San Jos6 Gas 
 Co. v. January, 57 Cal. 614, and this mode was held to be within the 
 powers vested in the assessor. It was also impliedly approved as a 
 correct mode in Burke v. Badlam, above cited. (See Commonwealth 
 v. Hamilton Mfg. Co., 12 Allen 306.) * * * 
 
 There is a further point which we think it proper to notice. It is 
 contended that good-will enters into and forms an element in the 
 value of the shares of stock. No case has been produced to us, nor 
 have we been able to find any holding or even intimating that this is 
 so. We find no such element of value in the least hinted at, by any 
 one who has written on the subject, nor has any such been called to 
 our attention. We can not recognize any such element as giving value 
 to shares in a trading corporation. It would be strange to predicate good- 
 will as pertaining to or extending to an abstraction, to an "artificial 
 being, invisible, intangible, and existing only in contemplation of law." 
 
 Our conclusion is that the board of supervisors, in its capacity of a 
 board of equalization, had jurisdiction of the person and subject-mat- 
 ter in the matters involved in this cause, and the judgment of the court 
 below is affirmed.
 
 136 THE STATE V. THE GEORGIA MEDICAL SOCIETY. 24 
 
 Ross, MYRICK, MCKINSTRY, McKEE and SHARPSTEIN, JJ., con- 
 curred. 
 
 MORRISON, C. J., took no part is this decision. 
 
 Note. See South Pacific R. Co. v. Orton, 32 Fed. Rep. 457, infra, p. 354. 
 and 441-3, 680-1, infra. 
 
 Sec. 24. (2) And particularly: This primary franchise belongs 
 to the members in their individual capacity rather than to the 
 corporation itself, and is inalienable except by consent of the 
 state. 
 
 THE STATE, Ex REL. J. WARING, PLAINTIFF IN ERROR, v. THE GEOR- 
 GIA MEDICAL SOCIETY, DEFENDANT IN ERROR. 1 
 
 1869. IN THE SUPREME COURT OF GEORGIA. 38 Ga. 608-631 ; 95 
 
 Am. Dec. 408. 
 
 [Waring filed a petition for writ of mandamus, to restore him to 
 membership in the Georgia Medical Society, upon the ground that 
 the action of the society "in expelling him from membership and de- 
 priving him of his right and franchise as a corporator in said corpo- 
 ration is unconstitutional and contrary to law." The society had 
 authority to make such a constitution and by-laws not repugnant to the 
 laws of the state or the United States, and these provide (among other 
 things) that members "shall be gentlemen of respectable social posi- 
 tion;" and "any member who shall be guilty of ungentlemanly con- 
 duct during the session of the society, or who shall conduct himself, 
 out of the society, in such a manner as would render him ineligible 
 to membership, shall be expelled from the society according to the 
 wishes of two-thirds of the members of the society present, provided 
 that in every instance specific charges be set forth and handed to the 
 individual at least one month before the society takes action thereon." 
 The charges made were that Waring had become surety for Richard 
 White, a. person of color, under indictment for larceny, who had been 
 elected clerk of the court, in opposition to the wishes of the entire re- 
 spectable community; and that he had also become surety for certain 
 other persons of color, who were charged with riot, in such manner 
 as would render him ineligible to membership ; also for charging for 
 a dispensary prescription, which was allowed gratis by the city ; also 
 consulting with a physician not a member of the society, contrary to 
 one of the rules forbidding this. Dr. Waring was given proper notice 
 and expelled by the proper vote. The society answered, claiming the 
 court had no jurisdiction, and also setting forth the facts as to the 
 charges, notice and expulsion, as above given. Waring moved to 
 quash this answer as being insufficient ; the lower court overruled the 
 motion, and Waring sued out his bill of exceptions to this court.] 
 
 1 Statement of facts condensed ; arguments omitted.
 
 24 THE CORPORATION AS A FRANCHISE. 137 
 
 BROWN, C. J. i. It was insisted, in this case, that the Georgia 
 Medical Society was in existence long before it was incorporated, 
 and that its objects were in no way changed by its application for and 
 acceptance of its present charter from the state. This may be very 
 true, but its legal responsibilities were changed by the acceptance of 
 the charter. While it remained a voluntary society, the courts had no 
 jurisdiction over it, if it violated no law of the state, and its members 
 had no property in their membership which the law could protect. 
 But its acceptance of the charter subjected it to the supervision of the 
 proper legal authorities having jurisdiction in such cases : 4 Wheat. 
 674-5, 6 Conn. 544-5. 
 
 2. When the voluntary society accepted the charter, it became a 
 private, civil corporation, and the corporators, then in being, ac- 
 quired a property in the franchise, and every person who has since 
 become a corporator has acquired a like property. The property 
 which the corporator acquires is not visible, tangible property; but it 
 is none the less property, because it is invisible and intangible. It is 
 not a corporeal hereditament; but it is incorporeal. Blackstone, in his 
 Commentaries, volume 2, page 21, says: That incorporeal heredita- 
 ments are divided into ten sorts; one of these consists of franchises. 
 Bouvier, in his Law Dictionary, volume i, page 593, says the word 
 franchise has several meanings, one of which he gives as follows: 
 " It is a certain privilege conferred by grant from the government 
 and vested in individuals. Corporations or bodies politic are the 
 most usual franchise known to our law.'" The law books are full of 
 the doctrine that persons may have a property in incorporeal heredita- 
 ments, franchises, etc. Property, says Bouvier, volume 2, page 381, 
 is divided into corporeal and incorporeal. The former comprehends 
 such property as is perceptible to the senses, as lands, houses, goods, 
 merchandise and the like ; the latter consists in legal rights as choses 
 in action, easements and the like. Blackstone says, volume 2, page 37, 
 it is likewise a franchise for a number of persons to be incorporated 
 and subsist as a body politic, with power to maintain perpetual suc- 
 cession, and to do other corporate acts, and each individual member 
 of such corporation is also said to have a franchise of freedom. We 
 think it -well settled by these and other authorities, that a corporator 
 in a private, civil corporation, has a property in the franchise, of 
 which he can not be deprived without due process of law. 
 
 3. It was insisted by the learned counsel for the plaintiff in error, 
 that the ninth by-law of this corporation is unauthorized by the char- 
 ter, and that the corporation is not justifiable in expelling a member 
 for its violation ; that to deprive a corporator of his property in the 
 franchise under it is to deprive him of his property without due pro- 
 cess of law. We think the ninth by-law a proper one in view of the 
 objects of the society, and we hold that the charter conferred upon the 
 corporation the power to ordain and establish it, and that they have 
 the power to expel a member when a proper case arises under it. 
 
 But we hold that the society has not an uncontrollable discretion in 
 its construction and enforcement. They can not, under pretext of
 
 138 THE STATE V. THE GEORGIA MEDICAL SOCIETY. 24 
 
 enforcing this rule, take personal or private revenge, or make it the 
 instrument of religious intolerance, or political proscription. When 
 a member feels that he is aggrieved or injured by the illegal or op- 
 pressive action of the body, it is his right to appeal to the courts for 
 redress and protection ; and it is the right and duty of the court to in- 
 vestigate such charges, when properly before it, and to judge of the 
 legality of the action of the society in expelling a member or depriv- 
 ing him of any other legal right. 
 
 4. The rule of law on this subject is thus stated by Judge Black- 
 stone, volume i, page 381. The king being thus constituted by law, 
 visitor of all civil corporations, the law has also appointed the place 
 where he shall exercise this jurisdiction, which is the court of king's 
 bench, where, and where only, all misbehaviors of this kind of corpo- 
 rations are inquired into and redressed, and all their controversies 
 decided. In this state the same visitorial power of correcting the mis- 
 behaviors of these corporations, and deciding their controversies, is 
 vested in the superior courts of the counties where they are located, 
 which in England belongs to the king's bench. See 5 John. Ch. R. 
 
 335- 
 
 It was contended, with much zeal and ability, by the able counsel 
 
 for the defendant in error, that mandamus is not the proper remedy, 
 even if we admit that the rights of Dr. Waring have been infringed, or 
 that he has been deprived of them by the illegal action of the societv. 
 The rule, as laid down by this court in a number of cases is that a 
 person having a clear legal right, under the laws of this state, is en- 
 titled to the writ of mandamus, if he has no other remedy to enforce 
 it. 4 Ga. 26 and 116, 12 Ga. 170, 26 Ga. 665. 
 
 But it is insisted that the code, section 3143, has changed this rule, 
 and that mandamus does not now lie as a private remedy between in- 
 dividuals to enforce private rights. We do not think this section of the 
 code was intended to deny the writ to the corporator, who is deprived 
 of his rights by the corporation, when he has no other adequate remedy 
 for their enforcement. A corporation having been created, invested 
 with certain powers, and charged with certain duties to be performed 
 for the benefit of the public, is not a private individual in the sense 
 of the word as used in said section of the code, and a corporator 
 whose rights are -withheld or violated by the corporation, "who is with- 
 out other remedy, is entitled to the writ. 
 
 In the Commonwealth, ex rel., etc., v. The Mayor of Lancaster, 
 5 Watts 152, Gibson, C. J., says: "An action to enforce the right 
 could not be maintained against the corporation because performance 
 of a corporate function is not a duty to be demanded by action, and 
 unless recourse could be had to the functionary in the first instance, 
 the relator might have a cause for redress without a remedy." See 
 4 Ga. 44. 
 
 Here the discharge of a corporate duty is treated as an office or 
 function, and the corporation as a functionary. In this sense, no 
 doubt, the legislature, in the adoption of the Code, intended to treat 
 them.
 
 24 THE CORPORATION AS A FRANCHISE. 139 
 
 The object of this society, as cited in their charter, was "for the 
 purpose of lessening the fatality induced by climate and incidental 
 causes, and improving the science of medicine." The whole com- 
 munity have an interest in the success of this laudable undertaking ; 
 and if the functions conferred by the charter, for the benefit of the 
 public, are not faithfully performed, and one of the corporators, who 
 has no other adequate redress, is injured by the conduct of the cor- 
 poration (the functionary), the courts will grant him relief by manda- 
 mus. 
 
 6. The record in this case shows no sufficient cause to justify the 
 society in expelling Dr. Waring from his rights and privileges as a 
 corporator. He was expelled for doing that which the law of this 
 state not only authorizes but encourages. His offending consists in 
 the fact that he became one of the sureties on the official bond of a 
 colored citizen of his county, who had been elected clerk of the superior 
 court of the county, by a majority of the legal votes cast at the elec- 
 tion for that office, and in the further fact that he became surety on 
 the bonds of certain other colored citizens who were charged with the 
 offence of riot, for their appearance at court to answer the charge as 
 the law directs. The very fact that the law requires the clerk of the 
 superior court to give bond and security for the faithful discharge of 
 his duties, is sufficient to justify any citizen of the county in becoming 
 one of his sureties, and to protect him, in contemplation of law, from 
 the imputation of having forfeited his position as a gentleman by so 
 doing. 
 
 Again, it is not the object of law to punish citizens of this state, 
 whether white or black, by imprisonment, for offenses of which they 
 have never been convicted. When they are charged with violations 
 of the penal code, the requirement of the law is, that they appear at 
 the proper time and place, and answer the charge ; and to secure such 
 appearance, they are required to give bond and security, and it is only 
 on failure to give the bond that they can be imprisoned. As inno- 
 cent persons are often confined in prison under charges, because of 
 their inability to give bond, the law favors bail whenever the offense 
 is, by law, bailable. And the law favors this even in the case of the 
 guilty, till the trial. This is not only best for the public, as it saves 
 the tax-payers the expense of keeping them in jail, but is just to the 
 accused, who receive the legal punishment for their crimes, if guilty, 
 under the sentence of the court after legal conviction. How, then, 
 does a citizen forfeit his corporate rights as a member of a civil corpo- 
 ration, or his position as a gentleman, by doing an act that is not only 
 encouraged by the laws of his state, but is a positive public benefit? 
 
 But it is said Dr. Waring was not expelled from becoming surety 
 on the bonds above mentioned, but for ungentlemanly conduct in the 
 presence of the society. What ungentlemanly conduct? The ninth 
 by-law requires that "specific charges" be set forth and handed to the 
 accused at least one month before the society takes action thereon. 
 What specific charges of ungentlemanly conduct in presence of the 
 society, were ever handed to Dr. Waring? What did he say or do in
 
 140 THE STATE V. THE GEORGIA MEDICAL SOCIETY. 24 
 
 the presence of the society, to forfeit his position as a gentleman? 
 The record is silent. That silence is significant. That which is ma- 
 terial and is not averred by the society in their answer is presumed 
 not to exist. No ungentlemanly conduct in presence of the society is 
 set forth in their response, and this court must presume none existed. 
 
 Dr. Waring was convicted of the charges first mentioned in refer- 
 ence to the suretyship, and brought formally before the society and 
 censured. To this illegal and unauthorized proceeding he submitted. 
 But, not satisfied with this, at the next meeting of the society he was 
 again brought up, and his resignation demanded, and he was given 
 till the succeeding meeting to comply with the imperious and unau- 
 thorized demand. This he declined to do. And a preamble and 
 resolutions were then passed, setting a future day when the society 
 would vote on his expulsion for refusing to resign, and for discourteous 
 behavior towards the society at two former meetings. In what the 
 discourteous behavior consisted we are not informed by the record. 
 In the meantime, however, the gracious privilege of avoiding ex- 
 pulsion by resignation was still held out to Dr. Waring. When the 
 time came for the much-cherished object by the infliction of the ex- 
 treme penalty of expulsion, Dr. Waring was at home sick, and unable 
 to attend, but he wrote the society, disclaiming all intentional dis- 
 courtesy to it or its members, and protested against the irregularity 
 and illegality of the course resolved upon, as set forth in said pre- 
 amble and resolutions. But all to no effect. His expulsion was pre- 
 determined, and that determination was executed. A more illegal 
 or unjustifiable proceeding has seldom been brought before a court. 
 
 After argument had, and a thorough examination of this case, it is 
 the unanimous judgment of this court that the judgment of the court 
 below be reversed, and the judge of the superior courts of said county 
 is hereby instructed and ordered to grant a peremptory mandamus, 
 commanding and compelling the said "The Georgia Medical Society" 
 to restore the said Dr. James J. Waring to all his rights and privi- 
 leges as a corporator in said society. 
 
 Note. See, infra, p. 1171 ; Evans v. Philadelphia Club, 50 Pa. St. 107-127, and 
 cases cited; and Belton v. Hatch, 109 N. Y. 593, 4 Am. St. 495, infra, p. 178. 
 Also 1896, Board of Trade of Chicago v. Nelson," 162 111. 431, 44 N'. EV'743; 
 1892, Spilman v. Supreme Council of Home Circle, 157 Mass. 128; 1887, 
 Pitcher v. Board of Trade, 121 111. 412; 1844, Commonwealth, ex rel., v. Pike 
 Beneficial Soc., 8 W. & S. (Pa.) 247; 1883, Medical & Surg. Soc. of Mont. Co. 
 v. Weatherly, 75 Ala. 248, 253; 1875, Meyer v. Johnson, 53 Ala. 237, 325; 
 1878, Board of Trade v. People, 91 111. 80; 1863, Sayre v. Louisville, etc., As- 
 sociation, 1 Duval (Ky.) 143, 85 Am. Dec. 613; 1864, National M. F. Ins. Co. 
 v. Yeomans, 8 R. I. 25, 86 Am. Dec. 610 ; 1855, Hiss v. Bartlett, 3 Gray 468, 
 63 Am. Dec. 768, note 773; 1857, Austin v. Searing, 16 N. Y. 112, 69 Am. Dec. 
 665, note 677; 1866, Society v. Commonwealth, ex rel., 52 Pa. St. 125, 91 Am. 
 Dec. 139; 1866, Dane v. Derby, 54 Maine 95, 89 Am. Dec. 722, note 736.
 
 25 THE CORPORATION AS A FRANCHISE. 14! 
 
 Sec. 25. Same. 
 
 FIETSAM v. HAY ET AL. 1 
 
 1887. IN THE SUPREME COURT OF ILLINOIS. 122 111. 293-297, 3 
 
 Am. St. R. 492. 
 
 Appeal from the circuit court of St. Clair county. 
 
 Mr. Justice MULKEY delivered the opinion of the court: 
 
 The People's Bank of Belleville, incorporated under a special act 
 of legislature, approved and in force March 27, 1869, having become 
 insolvent on the i7th of April, 1878, made a general assignment of 
 all its property and effects for the benefit of creditors. The assignee 
 presented a petition to the county court of St. Clair county, at its 
 March term, 1887, for leave to sell "all the rights, privileges, powers 
 and immunities which were granted by the said act incorporating 
 said bank." The judge of the county court being interested in the 
 result of the proceeding, the venue was changed to the circuit court 
 of St. Clair county, where, upon due consideration of the petition, 
 that court entered an order dismissing the same. The present appeal 
 is from the order of dismissal. 
 
 The correctness of the decision of the circuit court depends entirely 
 upon whether the title to the franchise created and conferred by the 
 bank charter passed as an asset of the bank, to the assignee, under 
 the assignment. That its language is sufficiently comprehensive, and 
 adequate to pass the franchise to the assignee, if, as matter of law, 
 the bank could transfer it at all, we have no doubt. This is not ques- 
 tioned. The question, therefore, is whether a corporate franchise, 
 in the absence of statutory authority, is in law capable of being as- 
 signed or transferred. Differently put, the question, as formulated 
 by the parties themselves, is, "did the franchise of the said bank pass 
 with the deed of assignment to the assignee as a salable asset of the 
 said bank?" 
 
 The word ''franchise" is often used in the sense of privileges gen- 
 erally, but in its more appropriate and legal sense the term is con- 
 fined to such rights and privileges as are conferred upon corporate 
 bodies by legislative grant. It is in the latter sense, alone, the -word 
 is now to be considered. 
 
 The franchise proposed to be sold is a corporate franchise, and the 
 artificial body or political entity to which it pertains is what is known 
 to the law as an aggregate corporation. Such a corporation has been 
 well defined to be "an artificial being created by law, and composed 
 of individuals who subsist as a body politic under a special denomina- 
 tion, with the capacity of perpetual succession, and of acting, within 
 the scope of its charter, as a natural person." Now, a franchise is 
 nothing more than the right or privilege of being a corporation, and 
 of doing such things, and such things only, as are authorized by the 
 
 1 Arguments omitted.
 
 142 FIETSAM V. HAY. 25 
 
 corporation 1 s charter. This right of a body of men to be and act as 
 an artificial person, without, as a general rule, incurring individual 
 responsibility, is declared by Blackstone to be "a royal privilege, or 
 branch of the king's prerogative, subsisting in the hands of a subject." 
 (2 Blackstone, 37.) Such right or franchise is defined by Bouvier 
 to be "a certain privilege conferred by grant from government, and 
 vested in individuals." (i Bouvier, 545.) Now, it is clear from 
 these definitions, and from the very nature of a corporation, *hat a 
 franchise or the right to be and act as an artificial body, -vests in the in- 
 dividuals tvho compose the corporation, and not in the corporation itself. 
 This fact, we think, is not without significance in reaching a conclu- 
 sion upon the main question to be determined, outside of the numer- 
 ous authorities bearing directly on the subject. 
 
 It will be kept in mind that the corporate body, for purposes of 
 ownership, and, indeed, for most purposes, has a distinct iden- 
 tity from that of the individual corporators. The latter may be 
 wealthy, when at the same time the former is insolvent, and vice versa. 
 The corporation has no right to appropriate, sell or otherwise dispose 
 of any of the property or effects of a corporator. The relation of debtor 
 and creditor may subsist between them in the same manner as be- 
 tween the company and other persons. The company's entire prop- 
 erty may be swept away from it by sequestration, or other means, and 
 yet its franchises will remain vested in the corporators, until they are 
 either abandoned or forfeited to the state. All these propositions are 
 familiar to the courts and the profession, and are all well sustained 
 by authority. 
 
 If, then, the franchise is vested in and belongs to the corporators, 
 and not to the corporation itself, how could the latter transfer or as- 
 sign it to another? On the plainest of principles this could not be 
 done without legislative authority for that purpose, and we find noth- 
 ing, either in the statute or the company's charter, conferring such 
 authority. While it is conceded the legislature might confer on the 
 artificial body the power to sell or assign the franchise to strangers, 
 yet this would be, in effect, to authorize it to commit a species of sui- 
 cide, for it is manifest the corporation could not exist a moment after 
 the franchise conferred upon its members had been transferred to 
 others. Indeed, when we consider the attributes and essential ele- 
 ments of corporate existence, resulting from the grant of the fran- 
 chise, and without which the artificial body could not accomplish the 
 objects of its creation or perform the duties imposed upon it by law, 
 the sale or assignment of the franchise without special legislative au- 
 thority would seem to be wholly inadmissible. It is proposed here, 
 it will be noted, to sell simply the franchise of the bank. Assuming 
 this can be done, the question arises what would be the effect of such 
 a sale ? It clearly could not have the effect of making the purchasers, 
 if more than one, an aggregate corporation, with the general banking 
 powers conferred by the bank charter. To assert such a proposition 
 would be simply startling; and yet, if in such case the purchasers 
 would take anything at all, they certainly could not take less than the
 
 26 THE CORPORATION AS A FRANCHISE. 143 
 
 right to be a banking corporation, with all the powers and privileges 
 conferred by the charter, for these rights are of the very essence of 
 the franchise ; and consequently the one could not be thus acquired 
 without, by the same act, securing the others a view which, as already 
 indicated, has no sanction in reason or authority. 
 
 While statements are to be found on this subject in some of the text- 
 books, as well as in some of the decided cases, which can not be recon- 
 ciled with the conclusion we have reached, yet we are clearly of 
 opinion that a corporation, in the absence of statutory authority, has 
 no right to sell or transfer its franchise or any property essential to its 
 exercise, which it has acquired under the law of eminent domain. 
 This proposition, in our judgment, is sustained both by reason and 
 the decided weight of authority. Black et al. v. Delaware and Rari- 
 tan Canal Co., 24 N. J. Eq. 455; Freeman on Executions, 179, 
 180; Pearce on Railroads, 496-1 ; Jones on Mortgages, 161 ; Rorer 
 on Judicial Sales (3d ed.), 222; Archer v. Terre Haute and Indian- 
 apolis R. Co., 102 111. 493; Bruffett v. Great Western R. Co., 25 
 111. 353; Chicago and Rock Island R. Co. v. Whipple, 22 111. 105; 
 Ottawa, Oswego and Fox River Valley R. Co. v. Black, 79 111. 262. 
 
 The circuit court having reached this conclusion, its order and judg- 
 ment will be affirmed. 
 
 Judgment affirmed. 
 
 Note. 1867, Cleveland, etc., R. Co. v. Speer, 56 Pa. St. 325, 94 Am. Dec. 
 84; 1869, Miner's Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300; 1887, 
 Chicago Gas Light Co. v. People's Gas L. Co., 121 111. 530, 2 Am. St. 124; 
 1864, Caldwell v. Alton, 33 111. 416, 85 Am. Dec. 282; 1863, Story v. Plank 
 Road Co., 16 N. J. Eq. 13, 84 Am. Dec. 134; 1862, People v. Railroad Co., 24 
 N. Y. 261, 82 Am. Dec. 295; 1859, Coe v. Railroad Co., 10 Ohio St. 372, 75 
 Am. Dec. 518; 1825, Ammant v. Turnpike Road, 13 S. & R. (Pa.) 210, 15 Am. 
 Dec. 593; 1877, Hudson v. Cuero Land, etc., Co., 47 Tex. 56, 26 Am. Rep. 
 289; 1865, Commonwealth v. Smith, 10 Allen (Mass.) 448, 87 Am. Dec. 672, 
 infra, p. 1070; 1862, Bardstown & L. R. Co. v. Metcalfe, 4 Met. (Ky.) 199, 81 
 Am. Dec. 54 1, infra, p. 1074; 1893, Brunswick G. L. & Co. v. United Gas, etc., 
 Co., 85 Me. 532, 35 Am. St. R. 385, note, p. 390; Jones v. Guarantee Co., 101 
 U. S. 622, infra, p. 1078; 1872, State of Ohio, exrel., etc., v. Sherman, 22 Ohio 
 St. 411, infra, p. 1082; 1892, Overton Bridge Co. v. Means, 33 Neb. 857, 29 Am. 
 St. R. 514. 
 
 Sec. 26. ( 3 ) The secondary franchises and privileges as well as 
 ,,all other rights except the primary franchise, belong to the 
 "^corporation, or artificial being, rather than to the individual 
 members. 
 
 MEMPHIS AND LITTLE ROCK RAILROAD COMPANY v. RAILROAD 
 
 COMMISSIONERS. 1 
 
 1884. IN THE SUPREME COURT OF THE UNITED STATES. 1 12 U. S. 
 
 609-623. 
 
 [This was a bill in equity filed in the chancery court of Pulaski 
 county, Arkansas, seeking to enjoin the board of railroad commis- 
 
 1 Statement of facts condensed, arguments omitted.
 
 144 MEMPHIS, ETC., R. CO. V. RAILROAD COMMISSIONERS. 26 
 
 sioners of the state from appraising, for the purposes of taxation, any 
 part of the property of the plaintiff in error, on the ground that it is 
 exempted from taxation by a contract with the state contained in its 
 charter of incorporation. The supreme court of the state, on appeal, 
 affirmed the decree of the chancery court dismissing the bill. That 
 decree of the supreme court was brought here by writ of error, for 
 review, on the allegation that it enforced a law of the state impairing 
 the obligation of a contract in violation of the rights of the plaintiff 
 in error under the constitution of the United States. 
 
 The Memphis and Little Rock Railroad Company was incorporated 
 in 1853, with power to borrow "money on the credit of the company, 
 and on the mortgage of its charter and works" ( 9) ; and its capital 
 stock was to be exempt from taxation until its road paid a dividend of 
 6 per cent., and its road, fixtures, etc., were to be exempt from taxes 
 until twenty years after it was completed. (Sec. 28.) At the time 
 of its incorporation the constitution of Arkansas permitted corpora- 
 tions to be created by special acts, and there was no restriction as to 
 the power to exempt such corporations from taxation. The supreme 
 court of the state, in Oliver v. Memphis and Little Rock Railroad Com- 
 pany, 30 Ark. 128, had held that the exemption from taxation in the 
 charter of this road was a contract between it and the state, that was 
 not to be impaired. The railroad company in 1860 issued its bonds, 
 secured by mortgage covering "the charter by which said company 
 was incorporated and under which it was organized, and all the rights 
 and privileges and franchises thereof," and also all lands, etc., be- 
 longing to said company. October 13, 1874, a new constitution of 
 the state went into effect providing that corporations should be formed 
 only under general laws, and no special act should be passed confer- 
 ring corporate powers ; that all property should be taxed according to 
 its true value ; that all laws exempting from taxation (except churches, 
 etc., especially named and not including railroad companies) should 
 be void ; that the power so to tax corporations should never be sur- 
 rendered or suspended by any contract on the part of the state, and 
 that the legislature shall not pass any general or special law for the 
 benefit of any corporation then existing, except upon condition that 
 such corporation should thereafter hold its charter subject to the pro- 
 visions of the constitution. 
 
 December 9, 1874, the legislature passed a law "whereby the pur- 
 chasers of a railroad of any corporation of the state, and their asso- 
 ciates, acquiring title thereto by virtue of a judicial sale, or of a sale 
 under a power contained in a mortgage or deed of trust, were author- 
 ized to organize themselves into a body corporate, vested with all the 
 corporate rights, liberties, privileges, immunities and franchises of 
 and concerning the railroad so sold, not in conflict with the constitu- 
 tion of the state, as fully as the same were held, exercised and en- 
 joyed by the corporation before such sale." A certificate of such 
 organization was to be filed with the secretary of state. The road 
 was not completed till November, 1874. In 1876, a bill to foreclose 
 the mortgage was brought by the trustees under the same, and a de-
 
 26 THE CORPORATION AS A FRANCHISE. 145 
 
 cree rendered, ordering a sale embracing the property, franchises 
 and charter of said Memphis and Little Rock Railroad Company, 
 and a sale was so made to certain trustees for the bondholders. In 
 April, 1877, these bondholders organized themselves into a company 
 under the name of "The Memphis and Little Rock Railroad Com- 
 pany as reorganized," and a few days later, the trustees named in 
 the sale, conveyed to said reorganized company "the property and 
 franchises, including the charter of 1853," and under this it claims 
 exemption from taxation in any way different from the provisions of 
 the charter of 1853.] 
 
 Mr. Justice MATTHEWS delivered the opinion of the court. [After 
 reciting the facts substantially as above stated, he continued:] 
 
 The case of the plaintiff in error rests entirely upon the words of 
 the ninth section of the act of incorporation of the Memphis and Little 
 Rock Railroad Company of January n, 1853, by which it was em- 
 powered to borrow money "on the credit of the company and on the 
 mortgage of its charter and works." It is argued that these words 
 confer power upon the company to convey to its bondholders, by way 
 of mortgage and on foreclosure, to purchasers absolutely, all the prop- 
 erty of the company, and all its franchises, including the franchise of 
 becoming and being a corporation, in the sense of acquiring the right 
 to organize as such under the act as successor to, and substitute for, 
 the original company, precisely as if the act had named them as cor- 
 porators and endowed them with the corporate faculty. And this 
 being assumed, it is thence inferred that the exemption contained in 
 section 28 of the act applies to the substituted corporation as though 
 no change of corporate existence had taken place ; and thus, it is in- 
 sisted, the case is taken out of rule of decision established in Morgan 
 v. Louisiana, 93 U. S. 217; Wilson v. Gains, 103 U. S. 417, and 
 Louisville and Nashville R. Co. v. Palmes, 109 U. S. 244. Accord- 
 ing to the principle of those decisions, the exemption from taxation 
 must be construed to have been the personal privilege of the very cor- 
 poration specifically referred to, and to have perished with that, unless 
 the express and clear intention of the law requires the exemption to 
 pass as a continuing franchise to a successor. This salutary rule of in- 
 terpretation is founded upon an obvious public policy, which regards 
 such exemptions as in derogation of the sovereign authority and of 
 common right, and, therefore, not to be extended beyond the exact 
 and express requirement of the grants, construed stridissimi juris . 
 
 It is not claimed that the assignment of the charter, by way of mort- 
 gage and subsequent judicial sale, constituted the purchasers to be the 
 identical corporation that the mortgager had been ; for that would in- 
 volve an assumption of its obligations and debts as well as an acqui- 
 sition of its privileges and exemptions; but, it is insisted, that it re- 
 sulted in another corporation in lieu of the original one, entitled to 
 all the provisions of the charter, by relation to its date, as though it 
 had been originally organized under it. 
 
 But such a construction of the words, authorizing a mortgage of the 
 10 WIL. CASES.
 
 146 MEMPHIS, ETC., R. CO. V. RAILROAD COMMISSIONERS. 26 
 
 charter and works of the company, is, in our opinion, beyond the 
 intention of the law and altogether inadmissible. 
 
 There is no express grant of corporate existence to any new body. 
 At the time when this charter was granted, in 1853, there was no 
 general law in existence in Arkansas authorizing the formation of 
 corporations. All such grants were by special act. Neither was 
 there any law authorizing the purchasers of railroads at judicial sale 
 under mortgages of the property and franchises of the company, to 
 organize themselves into corporate bodies, such as was first passed in 
 1874. There is not in the act of January n, 1853, for the incorpo- 
 ration of the Memphis and Little Rock Railroad Company, any refer- 
 ence to such a right as vested in the mortgage bondholders or other 
 purchasers at a sale under a foreclosure of the mortgage, nor is there 
 any mode or machinery prescribed in the act for such an organization. 
 The desired conclusion rests entirely on the inference deduced from 
 the mortgage of the charter, and is an attempt to create a corpora- 
 tion by a judicial implication. But, as was said by this court in Cen- 
 tral Railroad and Banking Co. v. Georgia, 92 U. S. 665, 670, "it is 
 an unbending rule that a grant of corporate existence is never implied. 
 In the construction of a statute every presumption is against it." 
 
 The application of this rule is not avoided by the claim that the 
 present is not the case of an original creation of a corporate body, but 
 the transfer, by assignment of a previously existing charter and of the 
 right to exist as a corporation under it. The difference is one of 
 words merely. The franchise of becoming and being a corporation, 
 in its nature, is incommunicable by the act of the parties and incapa- 
 ble of passing by assignment. "The franchise to be a corporation," 
 said Hoar, J., in Commonwealth v. Smith, 10 Allen 448, 455, 
 "clearly can not be transferred by any corporate body of its own will. 
 Such a franchise is not, in its own nature, transmissible." In Hall 
 v. Sullivan Railroad Co., 21 Law Reporter 138 (2 Redfield's Am. 
 Railway Cases 621 ; i Brunner's Collected Cases 613), Mr. Justice 
 Curtis said: "The franchise, to be a corporation, is, therefore, not a 
 subject of sale and transfer, unless the law, by some positive provis- 
 ion, has made it so, and pointed out the modes in which such sale 
 and transfer may be effected." No such positive provision is con- 
 tained in the act under consideration, and no mode for effecting the 
 organization of a series of corporations under it is pointed out, either in 
 the act itself or in any other statute prior to that of December 9, 1874. 
 
 The franchise of being a corporation need not be implied as neces- 
 sary to secure to the mortgage bondholders, or the purchasers at a 
 foreclosure sale, the substantial rights intended to be secured. They 
 acquire the ownership of the railroad, and the property incident to it, 
 and the franchise of maintaining and operating it as such ; and the 
 corporate existence is not essential to its use and enjoyment. All 
 the franchises necessary or important to the beneficial use of the rail- 
 road could as well be exercised by natural persons. The essential 
 properties of corporate existence are quite distinct from the fran- 
 chises of the corporation. The franchise of being a corporation be-
 
 26 THE CORPORATION AS A FRANCHISE. 147 
 
 longs to the corporators, while the powers and privileges, vested in 
 and to be exercised by the corporate body as such, are the franchises 
 of the corporation. The latter has no power to dispose of the fran- 
 chise of its members, which may survive in the mere fact of corpo- 
 rate existence, after the corporation has parted with all its property 
 and all its franchises. If, in the present instance, we suppose that a 
 mortgage and sale of the charter of the railroad company created a new 
 corporation, what becomes of the old one? If it abides for the pur- 
 pose of responding to obligations not satisfied by the sale, or of own- 
 ing property not covered by the mortgage nor embraced in the sale, 
 as it may well do, and as it must if such debts or property exist, then 
 there will be two corporations coexisting under the same charter. 
 For, "after an act of disposition which separates the franchise to 
 maintain a railroad and make profit from its use, front the franchise 
 of being a corporation, though a judgment of dissolution may be 
 authorized, yet, until there be such judgment, the rights of the cor- 
 porators and of third persons may require that the corporation be 
 considered as still existing." Coe v. Columbus, Piqua and Indiana 
 Railroad Co., 10 Ohio St. 372, 386, per Gholson, J. 
 
 If, as required by the argument for the plaintiff in error, we regard 
 and treat the franchise of being a corporation as an incorporeal hered- 
 itament, and an estate capable of passing between parties by deed, 
 or of being charged by way of mortgage and of being sold under a 
 power or by virtue of judicial process, the logical consequences will 
 be found to involve insuperable difficulties and contradictions. In 
 the present case, for example, after the execution of the first mort- 
 gage, we should have the railroad company continuing as a corpora- 
 tion in esse, and the trustees for the bondholders, or their beneficiaries, 
 or assigns, a corporation in posse; and, after condition broken, the 
 company would hold the title to its own existence as a mere equity of 
 redemption. That equity it makes the subject of a second mortgage, 
 and, in default, the beneficiaries under the power of sale became pur- 
 chasers of 'the franchise, and organize themselves, by virtue of it, into 
 the Memphis and Little Rock Railway Company. The latter can 
 hardly claim the status of a corporation at law, as the legal title to 
 the franchise of being a corporation had never passed to it, on the 
 supposition that it might pass by a private grant ; and, if a corpora- 
 tion at all, it could only be regarded as the creature of equity, accord- 
 ing to the analogy of equitable estates, a nondescript class hitherto 
 unknown in any system of law relating to the subject. 
 
 It finally was displaced by the judicial sale, under which the plaint- 
 iff in error organized as successor to both. In the meantime, the 
 original corporation has never been dissolved, and, for all purposes 
 not covered by the mortgage, still maintains an existence as a corporate 
 body, capable of contracting, and of suing and being sued. A concep- 
 tion which leads to such incongruities must be essentially erroneous. 
 
 If we concede to the argument for the plaintiff in error the position, 
 that the language used, which authorizes the mortgage of the charter, 
 may be taken in a literal sense, still the assignment would transfer it,
 
 148 MEMPHIS, ETC., R. CO. V. RAILROAD COMMISSIONERS. 26 
 
 in the very state in which it might be at the date of the transfer. But 
 at that date the only corporation which the charter provided for had 
 already been organized. The only powers conferred upon corpora- 
 tors to that end had already been exercised and exhausted. The bond- 
 holders, under the mortgage, and their assignees, the purchasers at 
 the sale, therefore took, and could take, nothing else than the charter, 
 so far as it remained unexecuted, with such franchises and powers as 
 were capable of future enjoyment and activity, and not such as, hav- 
 ing already spent their force by having been fully exerted, could not 
 be revived by a conveyance. This would include, by the necessity of the 
 case, the franchise to organize a corporation, which can only be exerted 
 once for all ; for the simple act of organization exhausts the authority, 
 and, having once been effected, is legally incapable of repetition. 
 
 It is a mistake, however, to suppose that the mortgage and sale of 
 a charter by a corporation, in any proper sense which can be legally 
 imputed to the words, necessarily conveys every power and authority 
 conferred by it, so far, at least, as to vest a title in them, as franchises, 
 irrevocable by reason of the obligation of a contract. In many, if 
 not in most, acts of incorporation, however special in their nature, 
 there are various provisions which are matters of general law and not 
 of contract, and are, therefore, subject to modification or repeal. 
 
 Such, in our opinion, would be the character of the right in the 
 mortgage bondholders, or the purchasers at the sale under the mort- 
 gage, to organize as a corporation, after acquiring title to the mort- 
 gaged property, by sale under the mortgage, if, in the charter under 
 consideration, it had been conferred in express terms, and particular 
 provision had been made as to the mode of procedure to effect the 
 purpose. It would be matter of law, and not of contract. At least, 
 it would be construed as conferring only a right to organize as a cor- 
 poration, according to such laws as might be in force at the time when 
 the actual organization should take place, and subject to such limita- 
 tions as they might impose. It can not, we think, be admitted that a 
 statutory provision for becoming a corporation in futuro can become 
 a contract, in the sense of that clause of the constitution of the United 
 States which prohibits state legislation impairing its obligation, until 
 it has become vested as a right by an actual organization under it, 
 and then it takes effect as of that date, and subject to such laws as 
 may then be in force. Such a contract, so far as it seems to assume 
 that form, is a provision merely that, at the time, or on the happen- 
 ing of the event specified, the parties designated may become a cor- 
 poration according to the laws that may then be actually in force. 
 The stipulation, whatever be its form, must be construed as subject 
 and subordinate to the paramount policy of the state, and to the sov- 
 ereign prerogative of deciding, in the meantime, what shall constitute 
 the essential characteristics of corporate existence. The state does 
 not part with the franchise until it passes to the organized corpora- 
 tion; and, when it is thus imparted, it must be what the government 
 is then authorized to grant and does actually confer. 
 
 It Is immaterial that the form of the transaction is that of a mort-
 
 26 THE CORPORATION AS A FRANCHISE. 149 
 
 gage, sale or other transfer inter par tes of the franchise to be a cor- 
 poration. "The real transaction, in all such cases of transfer, sale 
 or conveyance," as was said by the supreme court of Ohio in the case 
 of The State v. Sherman, 22 Ohio St. 411, 428, "in legal effect, is 
 nothing more or less, and nothing other, than a surrender or aban- 
 donment of the old charter by the corporators, and a grant de novo of 
 a similar charter to the so-called transferees or purchasers. To look 
 upon it in any other light, and to regard the transaction as a literal 
 transfer or sale of the charter, is to be deceived, we think, by a mere 
 figure or form of speech. The vital part of the transaction, and that 
 without which it would be a nullity, is the law under which the trans- 
 fer is made. The statute authorizing the transfer and declaring its 
 effect is the grant of a new charter couched in a few words, and to 
 take effect upon condition of the surrender or abandonment of the old 
 charter ; and the deed of transfer is to be regarded as mere evidence 
 of the surrender or abandonment." 
 
 It is, of course, the law in force at the time the transaction is con- 
 summated and made effectual that must be looked to as determining 
 its validity and effect. This is the principle on which this court pro- 
 ceeded in deciding the case of Railroad Co. v. Georgia, 98 U. S. 
 359. The franchise to be a corporation remained in, and was exer- 
 cised by, the old corporation, notwithstanding the mortgage of its 
 charter, until the new corporation was formed and organized ; it was 
 then surrendered to the state, and by a new grant then made passed to 
 the corporators of the new corporation, and was held and exercised by 
 them under the constitutional restrictions then existing. 
 
 Our conclusions, then, are that the exemption from taxation con- 
 tained in the 28th section of the act of January u, 1853, was intended 
 to apply only to the Memphis and Little Rock Railroad Company as 
 the original corporation organized under it ; that it did not pass by 
 the mortgage of its charter and works, as included in the transfer of 
 the franchise to be a corporation, to the mortgagees or purchasers at 
 the judicial sale ; that the franchises embraced in that conveyance were 
 limited to those which had been granted as appropriate to the con- 
 struction, maintenance, operation and use of the railroad as a public 
 highway and the right to make profit therefrom ; and that the appellant, 
 not having become a corporate body until after the restrictions in the 
 constitution of 1874 took effect, was thereby incapable in law of having 
 or enjoying the privilege of holding its property exempt from taxation. 
 
 The decree of the supreme court of Arkansas is accordingly affirmed. 
 
 Note. Power to mortgage franchises must be expressly given, or it does not ex- 
 ist. 1856, Pierce v. Emery, 32 N. H. 484; 1859, Coe v. C., C., etc., R. Co., 10 
 O. S. 372; 1858, Lauman v. Lebanon Val. R., 30 Pa. St. 42; infra, p. 1081; 
 1875, Daniels v. Hart, 118 Mass. 543; 1888, People v. Cook, 110 N. Y. 443; 
 1890, Snell v. City, 133 111. 413, 8 L. R. A. 858, 24 N. E. 532; contra, 1857, 
 Hall v. Sullivan R., 11 Fed. Cas. 257 (No. 5,948) ; 1863, Miller v. Rutland, etc., 
 R. Co., 36 Vt. 452; 1862, Bardstown, etc., R. Co. v. Metcalfe, 4 Met. (Ky.) 
 199, infra, p. 1074. 
 
 The legislature may expressly authorize the mortgage of the franchise. 1864, 
 Atkinson v. Marietta, etc., R. Co., 15 O. S. 21 ; 1866, East Boston, etc., R. 
 Co. v. East. R. Co., 13 Allen (Mass.) 422.
 
 ISO WALES V. STETSON. 2/ 
 
 Exemption from taxation, effect of transfer. 1896, Peareall v. R. Co., 161 II. S. 
 646; infra,p.U13; 1894, Keokuk R. Co. v. Missouri, 152 TJ. S. 301; 1888, Rail- 
 road Company v.Commw., 87 Ky.661; 1884, Railroad Co. v. Berry, 44 Ark. 17. 
 
 Sec. 27. (4) When a franchise is offered by the state and ac- 
 cepted by those to whom it is offered, it is in the nature of a 
 grant or executed contract. 
 
 1789, BULLER, J., in King v. Passmore, 3 T. R. 246. "And I 
 do not know how to reason on this point better than in the manner 
 urged by one of the relator's counsel, who considered the grant of 
 incorporation to be a compact between the crown and a certain num- 
 ber of subjects, the latter of whom undertake, in consideration of the 
 privileges which are bestowed, to exert themselves for the good gov- 
 ernment of the place. Now, if those persons have so far violated their 
 trust by negligence or misconduct that they are no longer capable of 
 governing the place, there is an end of the compact. The ground of 
 the charter was the government of the place, and when that can not 
 be carried on, I see no reason why the crown can not grant another 
 charter to a different set of persons." 
 
 Note. See also : 1694, Philips v. Bury, 1 Ld. Raym. 5, 8. c. 2 T. R. 346; 1815 
 Terrett v. Taylor, 9 Cranch (U. S.) 43. 
 
 Sec. 28. Same. 
 
 WALES, TREASURER, ETC., v. STETSON. 1 
 
 1806. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 2 
 Mass. 143-146, 3 Am. Dec. 39. 
 
 The declaration was in trespass and contained two counts. The 
 first was for passing the turnpike gate without payment of the legal 
 toll ; and the second was for cutting down the gate. 
 
 The parties submitted the cause to the court on a statement of facts, 
 in substance as follows: 
 
 That the corporation was duly authorized by law to make the road, 
 and, when made and approved by the court of sessions for the county 
 of Norfolk, to erect a gate thereon, near the dwelling-house of Joseph 
 Hunt ; that the road was so made and approved ; that by the act of 
 incorporation, "If any person shall cut, break down, or otherwise in- 
 jure or destroy the said turnpike gate, or shall forcibly pass, or attempt 
 to pass, by force without first paying the legal toll at such gate, such 
 person shall forfeit and pay a fine not exceeding $50, nor less than 
 $5, to be recovered by the treasurer of said corporation, to their use 
 in an action of trespass." 
 
 That the gate was erected on a part of the turnpike road where was 
 before an ancient public highway; that it was near the house of 
 Joseph Hunt, but that it might have been placed nearer to the said 
 house, and in a part of the turnpike road which was not before a 
 public highway. 
 
 That said Stetson did, on the twenty-ninth day of March, 1806, 
 
 1 Arguments omitted.
 
 28 THE CORPORATION AS A FRANCHISE. 15 I 
 
 forcibly pass the said gate without payment of toll, and in the even- 
 ing of said day did cut down said gate. 
 
 If, upon these facts, the court are of opinion that the corpora- 
 tion had a right by law to erect said gate at the place where it was 
 erected, then the defendant agrees to be defaulted; if otherwise the 
 plaintiff is to become nonsuit. 
 
 The opinion of the court was delivered by PARSONS, C. J. After 
 considering the several points made in this cause by the counsel, we are 
 satisfied that the question submitted must be decided according to the 
 legal construction of the act incorporating the proprietors of this turn- 
 pike. We are not prepared to deny a right in the general court to 
 discontinue by statute a public highway. It is an easement common 
 to all the citizens, who are represented in the legislature. The au- 
 thorizing of the erection of bridges over navigable waters is, in fact, an 
 exercise of a similar right. We are also satisfied that the rights le- 
 gally vested in this, or in any corporation, can not be controlled or 
 destroyed by any subscqtient statute, unless a po-wer for that purpose 
 be reserved to the legislature in the act of incorporation. 
 
 In the consideration of the provisions of any statute, they ought to 
 receive such a reasonable construction, if the words and subject-mat- 
 ter will admit of it, as that the existing rights of the public, or of in- 
 dividuals, be not infringed. And we are of opinion that this act of 
 incorporation reasonably admits such construction. The corporation 
 had a right to make the turnpike over such parts of the old road as lay 
 in their way. This affects no existing rights, as the easement re- 
 mains. But before we construe the statute as giving an authority to ob- 
 struct a former highway by erecting a gate thereon, it should appear 
 that such construction is necessary to give a reasonable effect to the 
 statute. In this case no such necessity appears; but from the case 
 as stated it appears that the corporation might have exercised their 
 right to erect a gate, and to receive the toll, as empowered by the 
 statute, without impeding the travel on the old highway. The stat- 
 ute authorizes the corporation to erect a gate on the turnpike road 
 near the dwelling-house of Joseph Hunt; and it is agreed in the case 
 that a gate might have been erected on the turnpike, and near the 
 dwelling-house of J. Hunt, and not upon any part of the old highway. 
 This gate being on the old highway is a public nuisance, and the de- 
 fendant had a right to abate it. Let the plaintiff be called. 
 
 Note. 1853, State Bank of Ohio v. Knoop, 16 How. (U. S.) 369; 1854, 
 Thorpe v. Rutland & Bur. R. Co., 27 Vt. 140; 1819, Dartmouth College v. 
 Woodward, 4 Wheat. (U. S.) 518, infra, p. 708; 1857, Nichols v. Somerset, 
 etc., R. Co., 43 Me. 356; 1805, Trustees v. Foy, 1 Murphy (N. C.) 58, 3 Am. 
 Dec. 672, supra, p. 34; 1855, Dodge v. Woolsey, 18 How. (U. S.) 331, supra, 
 p. 88; 1867, Zabriskie v. Hackensack, etc., R. Co., 18 N. J. Eq. 178, 90 Am. Dec. 
 617, infra, p. 1466; 1850, Commonwealth v. Cullen, 13 Pa. St. 133, 53 Am. Dec. 
 450, infra, p. 417; 1862, Durfee v. Old Colony R. Co., 5 Allen (Mass.) 230, in- 
 fra, p. 1462; 1872, Yeaton v. Bank of Old Dominion, 21 Grattan (Va.) 593, 
 infra, p. 750; 1872, Tomlinson v. Jessup, 15 Wallace (U. S.) 454, infra, p. 754; 
 1864, Hawthorne v. Calef, 2 Wallace (U. S.) 10, infra, p. 752; 1856, White 
 Mountain R. Co. v. Eastman, 34 N. H. 124, infra, p. 758. Compare, 1809, Cur- 
 rie v. Mut. Ass. Soc., 4 Henning & Munf. (Va.) 315.
 
 152 HIGGINS V. DOWNWARD, 29 
 
 Sec. 29. (5 ) These franchises are property, and can not be taken 
 without cause, but may be forfeited for misuser or nonuser. 
 
 1691. HOLT, J., in King v. Mayor of London, Show. 280. "I 
 am of the opinion that a corporation may be forfeited, if the trust be 
 broken, and the end for which it is instituted be perverted." 
 
 HIGGINS ET AL. v. DOWNWARD. 1 
 
 1888. IN THE COURT OF ERRORS AND APPEALS OF DELAWARE. 8 
 Hous. (Del.) 227-257, 40 Am. St. Rep. 141. 
 
 SAULSBURY, Chancellor. "A corporation is an artificial being, in- 
 visible, intangible and existing only in contemplation of law. Being 
 the mere creature of law, it possesses only those properties which the 
 charter of its creation confers upon it, either expressly or as inciden- 
 tal to its very existence. These are such as are supposed best calcu- 
 lated to effect the object for which it was created. Among the most 
 important are immortality, and, if the expression may be allowed, 
 individuality ; properties by which a perpetual succession of many 
 persons are considered as the same, and may act as the single indi- 
 vidual. They enable a corporation to manage its own affairs, and to 
 hold property without the perplexing intricacies, the hazardous and 
 endless necessity of perpetual conveyance for the purpose of trans- 
 mitting it from hand to hand. It is chiefly for the purpose of cloth- 
 ing bodies of men in succession with these qualities and capacities 
 that corporations were invented and are in use." Chief Justice Mar- 
 shall's opinion in the case of College v. Woodward, 4 Wheat. 626. 
 A franchise is a certain privilege conferred by grant from the govern- 
 ment, and vested in individuals. Corporations or bodies politic are 
 the most usual franchises known to our law. Bouv. Law Diet., 545- 
 By section 17, article 2, of the constitution of this state, it is declared 
 that "no act of incorporation, except for the renewal of existing cor- 
 porations, shall be hereafter enacted without the concurrence of two- 
 thirds of each branch of the legislature, and without a reserved power 
 of revocation by the legislature ; and no act of incorporation which 
 may be hereafter enacted shall continue in force for a longer period 
 than twenty years without the re-enactment of the legislature, unless 
 it be an incorporation for public improvement." 
 
 The Wilmington and Reading Railroad Company was a private 
 corporation for public improvement, and therefore its existence was 
 not limited to the period of twenty years under this provision of the 
 constitution. There was no time fixed by positive provision in the 
 charter of the Wilmington and Reading Railroad Company when the 
 corporation should cease to exist. Had there been, the corporation, 
 in the absence of a renewal of its charter before that period, would 
 
 1 Facts sufficiently stated in the opinion of the court. Arguments, and opin- 
 ion of Comegys, J., concurring, omitted.
 
 29 THE CORPORATION AS A FRANCHISE. 1 53 
 
 have become dissolved without either a representative or the possibil- 
 ity of one, as no provision is made by our laws for a representative in 
 such a case ; and at the instance of its dissolution the debts due to it 
 would have become extinguished, not the right to or the remedy for 
 the debts suspended, merely, but the debt itself annihilated. Bank 
 v. Lockwood's Adm'r, 2 Har. (Del.) 14. A judgment, being No. 181 
 to the November term, 1869, was recovered by the Wilmington and 
 Reading Railroad Company, a corporation then existing under the 
 laws of Delaware and Pennsylvania, against the defendants. A.Ji.J'a. 
 was issued, being No. 224 to the November term, 1870, on this judg- 
 ment, and levy made on goods and chattels. Subsequent executions 
 were issued on this judgment, the last being an alias vend, exp., 
 No. 92, to September term, 1887. On May 29, 1886, the judgment 
 was marked for the use of the Wilmington and Northern Railroad 
 Company, by the direction of the attorney of the plaintiff, and the 
 judgment was afterwards, on June 12, 1886, marked for the use of 
 John C. Higgins by direction of the president of the Wilmington and 
 Northern Railroad Company. The defendants allege that at or about 
 the year 1877 the Wilmington and Reading Railroad Company had 
 ceased to have any legal existence as a corporation, or any right to 
 perform or do any act whatever, and that the said judgment which 
 had been recovered by it became void and of no effect. 
 
 The sixth reason assigned for setting aside the sheriff'-s sale is that 
 the transfers or assignments alleged to have been made by indorse- 
 ments on the record, and by and through which the said John C. Hig- 
 gins claims title thereto, were illegal, unauthorized and void, and 
 ineffectual to vest in said John C. Higgins any right or title what- 
 ever. This reason, so far as it relates to the authority of the attorney 
 directing the judgment to be marked to the use of the Wilmington 
 and Northern Railroad Company is not before us, exceptions thereto 
 having, for the sake of expediting the hearing of the questions re- 
 served, been abandoned, so that the real and only question before us 
 is, was the Wilmington and Reading Railroad Company dissolved by 
 the act in relation thereto passed February 22, 1877? Or, in other 
 words, did the legislature, by passing that act, revoke the charter of 
 the Wilmington and Reading Railroad Company? On the 3d of 
 March, 1868, the Wilmington and Reading Railroad Company exe- 
 cuted a mortgage upon its road, etc., for the payment of money. A 
 suit was afterward instituted in the United States Circuit Court for the 
 foreclosure of this mortgage. The final decree in the case was made 
 April 25, 1876, directing the sale by the trustees of the railroad and 
 property. The sale was made under the decree November 4, 1876. 
 The deed made by the trustees to the purchasers conveyed "the rail- 
 road of the Wilmington and Reading Railroad Company, extending 
 from a point on the Philadelphia and Reading Railroad at or near 
 Birdsboro, in the county of Berks, state of Pennsylvania, to the city 
 of Wilmington, in the state of Delaware, with all the rights, privi- 
 leges, immunities and franchises of the said Wilmington and Reading 
 Railroad Company, under any and all grants of the state of Pennsyl-
 
 154 HIGGINS V. DOWNWARD. 29 
 
 vania, but exclusive of the franchises granted by the state of Dela- 
 ware." These franchises granted by the state of Delaware were not 
 included in the mortgage for which foreclosure was decreed, and, of 
 course, were not included, but excluded, by the decree of foreclosure. 
 They were not sold by the trustees to the purchasers of said road. Of 
 course, therefore, the purchasers of said Wilmington and Reading 
 Railroad did not by such sale become entitled to said franchises granted 
 by the state of Delaware. 
 
 On the 22d of February, 1877, the legislature of Delaware passed 
 an act to incorporate the purchasers of the Wilmington and Reading 
 Railroad. This act, after reciting in its preamble that the railroad of 
 the Wilmington and Reading Railroad Company, with its appurte- 
 nances, was sold in pursuance of a mortgage executed by said com- 
 pany under authority of laws of this state, and that it was necessary 
 to the proper enjoyment of the rights acquired by said sale that the 
 purchaser should be incorporated with authority to consolidate with any 
 company organized or to be organized under the laws of the state of 
 Pennsylvania, operating such portion of the road so sold as is situated 
 within the state of Pennsylvania, incorporated the persons purchasing 
 the said Wilmington and Reading Railroad, under a decree of the circuit 
 court of the United States for the eastern district of Pennsylvania, a body 
 politic and corporate, by the name of the "Wilmington and Northern 
 Railroad Company." By this act the company were vested with all 
 the right, title, interest, property, possession, claim and demand at 
 law or in equity of, in and to such railroad, to v/it, the railroad of the 
 Wilmington and Reading Railroad Company, with its appurtenances, 
 and with all the rights, powers, immunities, privileges and franchises 
 of the corporation as whose property the same was sold, and which 
 may have been granted thereto or conferred thereupon by any act or 
 acts of assembly whatsoever in force at time of such sale. These 
 franchises, granted by the state of Delaware, not being included in 
 the mortgage executed by the Wilmington and Reading Railroad 
 Company, and consequently not sold under the decree of foreclosure 
 thereof made by the circuit court of the United States for the eastern 
 district of Pennsylvania, the purchasers at such sale acquired no title 
 thereto, and no property therein. If they acquired any such title or 
 property it could only have been under and by virtue of the act to in- 
 corporate the purchasers of the Wilmington and Reading Railroad 
 before referred to. This act purported to ve'st such purchasers, among 
 other things, with the privileges and franchises of the corporation as 
 whose property the same was sold, and which may have been granted 
 thereto or conferred thereupon by any act or acts of assembly what- 
 ever in force at time of such sale. 
 
 The condition of a corporation whose charter has expired is not 
 the same as that of a corporation which has failed to elect its officers, 
 and, as the consequence of that failure, is rendered inactive. The 
 life of the one is out of it by its own constitution, and not from a fail- 
 ure to do what its charter enabled them to do, to give them active 
 being ; the other was entitled by its charter to a continued active life,
 
 29 THE CORPORATION AS A FRANCHISE. I 55 
 
 but it has failed to continue that activity by the election of its neces- 
 sary officers. Its active powers, but not its being, are gone. The one 
 is dead ; the other is dormant. The principles of law which apply 
 to the rights of a corporation thus dormant or disabled are not the 
 same as those which are applicable to the rights of a corporation 
 which is dissolved, or civilly dead. In the former case debts due 
 are extinguished ; not so in the latter case. No judgment of ouster 
 or other similar judgment, or judgment of like effect, has ever been 
 judicially declared against the Wilmington and Reading Railroad. 
 The act to incorporate the purchasers of the Wilmington and Reading 
 Railroad did not in express terms revoke the charter of the Wilming- 
 ton and Reading Railroad, nor necessarily deprive the latter of its 
 franchises granted by the acts of assembly of the state of Delaware. 
 The Wilmington and Reading Railroad had never forfeited its char- 
 ter as judicially ascertained by any judgment of a court of law; and 
 even the former act did not so declare. A franchise is property, 
 and it can not -wantonly or of -whim be taken away by a legislative 
 act and transferred to another. 
 
 The act of February 22, 1877, must receive a-reasonable interpre- 
 tation. It must be interpreted to mean that which the legislature of 
 the state of Delaware had a right to do, and not that which the legisla- 
 ture had not a right to do. The rights, powers, immunities, privi- 
 leges and franchises conferred by the legislature on the purchasers of 
 the Wilmington and Reading Railroad must be interpreted to be such 
 rights, powers, immunities, privileges, and franchises as those con- 
 ferred by the legislature on the Wilmington and Reading Railroad by 
 any act or acts of the general assembly which the Delaware legislature 
 had the right to confer, and to vest the same in said purchasers, 
 because the legislature had the right to make such a grant ; but the 
 legislature had no authority to take from the Wilmington and Read- 
 ing Railroad rights, powers, immunities, privileges and franchises, 
 the same never having been judicially declared forfeited, nor revoked 
 constitutionally by legislative authority. If the legislature had re- 
 voked the charter of the Wilmington and Reading Railroad, it could 
 have granted rights, powers, immunities, privileges and franchises 
 of the same nature and kind as those -which the Wilmington and 
 Reading Railroad had theretofore possessed, but not the same iden- 
 tical rights, powers, immunities, privileges and franchises, be- 
 cause the charter being revoked, it would follow that the rights, powers, 
 immunities, privileges and franchises ceased and determined, and 
 were not the subject of transference to another company by legislative 
 grant. The words, "of the corporation as whose property the same 
 was sold, and which may have been granted thereto or conferred 
 thereupon by any act or acts of assembly whatsoever in force at the 
 time of such sale," must be interpreted as having relation to what 
 was sold, and not to that which was not sold, and could not have been 
 legally sold under the said decree of foreclosure. According to this 
 interpretation, the words used would have force and effect. A con-
 
 156 HIGGINS V. DOWNWARD. 29 
 
 trary interpretation, would render the words of the act of assembly 
 inoperative and void. 
 
 It appears from the case stated that the judgment in respect to 
 which controversy exists in this case was on May 29, 1886, marked 
 for the use of the Wilmington and Northern Railroad Company by 
 Victor Du Pont, attorney for plaintiff, and on June 12, 1886, for the 
 use of John C. Higgins, by direction of H. A. Du Pont, president of 
 the Wilmington and Northern Railroad Company. It also appears 
 in like manner that there had been no meeting of the stockholders of 
 the Wilmington and Reading Railroad Company after the sale 
 thereof under the decrees of foreclosure aforesaid. If these facts be 
 so, the Wilmington and Reading Railroad as a corporation was not 
 dead, nor the debts due it extinguished, so far, at least, as it existed 
 under the laws of the state of Delaware. In this respect it was only 
 dormant; capable of being revived, but incapable of action without 
 such revival. Its life or death rested with the legislature. The 
 views above expressed in reference to extinct and dormant corpora- 
 tions are in accordance to the opinion of the court in the case of Bank 
 v. Lockwood's Adm'r. "There is," says Morawetz (Priv. Corp., 
 1002, 1003), "a broad and fundamental distinction between the 
 dissolution of the corporation and the loss of its franchise or legal 
 right to exist. Much confusion may be avoided," he says, "by bear- 
 ing in mind this distinction." Again, he says: "If the charter of a 
 corporation limits its existence to a definite period of time, the fran- 
 chise or right to exist would expire at the time limited." Again: 
 ' ' The franchise to exist and carry on business as a corporation con- 
 tinues indefinitely unless the time of its duration is expressly limited in 
 the grant. ' ' If the corporation should be guilty of any wrongful act, 
 or neglect of duty, which would give the state a right to declare the 
 franchise forfeited , the franchise would nevertheless continue tmtil the 
 forfeiture has been claimed and enforced by the state through the proper 
 legal proceedings. The commission of a wrongful act or neglect of duty 
 by a corporation would evidently not per se put an end to the actual ex- 
 istence of the corporate association. After a long -continued non-user 
 it may be presumed that a corporation has surrendered its franchises to 
 the state; but the mere fact that a corporation has been without officers 
 or organization, and has performed no corporate acts during a number 
 of years, does not put an end to its franchises , although this may be a 
 good ground for declaring them forfeited by judicial proceedings." 
 
 The charter of a corporation does not expire by reason of the omis- 
 sion or commission of acts on the part of the company for declaring 
 a forfeiture, but the franchises continue in full force until the penalty 
 of forfeiture is claimed by the state granting the franchise, and this 
 can be done only through a legal proceeding by which the cause of 
 forfeiture is judicially ascertained, and not in a purely collateral pro- 
 ceeding. Says Pierce (R. R. n): "The non-use or misuse of its 
 franchises by a corporation, or its breach of the conditions on which 
 its duration is by the law of its creation made to depend, is a cause of 
 forfeiture. Such defaults, however, do not of themselves work a
 
 29 THE 'CORPORATION AS A FRANCHISE. 157 
 
 forfeiture, but they take effect only when judicially determined in a 
 direct proceeding instituted for the purpose. A non-user or mis- 
 user is a ground of forfeiture, although not expressly declared to be 
 such by statute." The same writer says : "A cause of forfeiture which 
 has not been judicially declared in a direct proceeding can not be 
 taken advantage of collaterally." The legal modes of proceeding 
 against a corporation for usurpation non-user or misuser of a fran- 
 chise is scire facias, or an information in the nature of a quo war- 
 ranto, each prosecuted at the instance and on behalf of the state. 
 
 What becomes of the corporate property of a corporation in the 
 event of its dissolution? The court in the case of Bankv. Lockwood's 
 Admr's, before referred to, say that on the dissolution of a corpora- 
 tion as by the expiration of the period of its charter, its real estate re- 
 verts to the grantor, its personal estate to the people, and the debts 
 due to it are extinguished. This is doubtless so at the common law, 
 and in a proceeding at law as a scire facias on a judgment; but the 
 more modern doctrine upon this subject seems to be that the capital 
 of a corporation becomes upon its dissolution a fund to be adminis- 
 'tered in equity for the payment of its creditors, and afterwards for 
 distribution among its stockholders. The creditors have a lien on the 
 assets, and may follow them into the hands of stockholders and per- 
 sons who are indebted to the corporation. The rights of stockholders 
 in the assets are subordinate to those of creditors. See Pierce R. R. 
 13, and authorities cited. In my opinion, when the constitution of 
 this state speaks of the reserved power of revocation of a corporation 
 by the legislature, it means an express revocation by the legislature, 
 and not otherwise. 
 
 It will be seen from what I have already said that the judgment set 
 forth in the case stated, being No. 181 to the November term. 1869, 
 of the superior court, whether it be a valid and subsisting judgment or 
 not, did not pass to the Wilmington and Northern Railroad Company 
 by virtue of the acts of assembly, mortgage foreclosure proceeding, 
 sale and conveyance recited in the case staled, so as to give the said 
 Wilmington and Northern Railroad Company the right to enforce said 
 judgment by execution issued against the defendants, and that John 
 C. Higgins, who claims to be the assignee of said company to said 
 judgment, has not the right to enforce said judgment against the de- 
 fendants. * * * 
 
 Note. See 1886, Appeal of Pittsburgh R. Co., 122 Pa. St. 511, 9 Am. St. 
 R. 128; infra, p. 1342; 1887, Fietsam v. Hay, 122 111. 293; 3 Am. St. R. 492, 
 supra, p. 141; 1844, State v. Real P^state Bank, 5 Ark. 595, 41 Am. Dec. 109; 
 infra, p. 1298; 1890, People v. North Riv. Sug. Ref. Co., 121 N. Y. 582, 18 Am. 
 St. R. 843, supra, p. 100; 1889, State v. Minnesota Thresher Co., 40 Minn. 213, 
 27 Am. & E. C. Cas. 286; 1892, People v. Buffalo, etc., Co., 131 N. Y. 140; 
 1888, State v. Madison, etc., R., 72 Wis. 612, 40 N. W. 487; 1891, People v. 
 Broadway R., 125 N. Y. 29; 1884, State v. Railway Co., 40 O. 8. 504 . 
 
 NOTES TO ARTICLE IV. 
 
 Corporation as a franchise. Pollock and Maitland, History of English 
 Law, p. 493, say: "Between [the universities] and the boroughs, however,
 
 158 NOTES TO ARTICLE IV. 
 
 there was just this likeness : neither the borough nor the university was to 
 any great degree an owner of lands or of goods ; on the other hand it was 
 a holder of franchises. * * * The English temporal corporations, when 
 they first appear as ideal persons, appear not in the character of mere private 
 persons, but in the character we may almost say it of governmental officers 
 and magistrates who hold property in right of their offices. Their lands, their 
 goods are few; what they own is jurisdiction, governmental powers and 
 fiscal immunities. This is a characteristic feature of our temporal corpora- 
 tions in the first stage of their existence ; the artificial person comes into being 
 in order that he may govern and do justice. * * * This is well marked 
 in the history of Oxford. * * * This is so also with the merchant gilds. 
 They look to a modern eye now like voluntary associations of traders, and 
 now like organs of municipal government. * * * We may well suppose 
 that the juristic person made its appearance at a comparatively early time in 
 the gild hall of the brethren. Not that the gild was a trading corporation in 
 the modern sense. In mercantile transactions with outsiders it appears rather 
 as a societas than a universitas. It had no property engaged in trade. * * * 
 But the main property of the gild, as of the university, consists not of lands 
 and goods, but of franchises, jurisdictional powers and fiscal immunities." 
 
 In argument, Serjeant Pemberton, in King v. London, 1 Show. 275, 6, 1692, 
 said: "A corporation is an artificial body, consisting of particular persons, 
 as members constituent thereof, and like unto a natural body to many pur- 
 poses; that which doth unite them is the liberties and privileges granted for 
 that purpose. It is but a franchise granted originally to them by king or par- 
 liament. In all concessions of liberties and franchises, there is a tacit condi- 
 tion annexed to them, that they use them well ; which upon doing otherwise 
 determines them; an abuse forfeits them all. 20 Ed. 4, pi. 5, pi. 6, 2 Inst. 
 222. The way for the king to take an advantage of such an abuser is a qiio 
 warranto, or information in nature of it, that is the king's writ of right; here 
 these abusers are examined, and then judgment is either given for acquittal 
 or for the king." "But here [after judgment of seizure] it is otherwise, and 
 therefore I conclude that the franchise by which they claim to be a corpora- 
 tion was out of them, and in the king, as extinct; for it is such a franchise 
 as the king can not have by way of user, and therefore it must be gone, and 
 determined, and if so, the corporation is dissolved ; that which ties them 
 together is their franchise; take away that, and they are so many single 
 persons; for the franchise not only unites them, but distinguishes them, one 
 as mayor, and another as an alderman, and the like; then that being gone, 
 none of them are such." 20 Ed. 4, pi. 5, pi. 6, 2 Inst. 222. 
 
 In Garth. 217, this same argument is said to have stated these views as fol- 
 lows: "A corporation is an artificial body, composed of divers constituent 
 members, ad instar corporis humani, and the ligaments of this body politic or 
 artificial body are the franchises and liberties thereof, which bind and unite 
 all its members together; and the whole essence and frame of the corporation con- 
 sist therein." 
 
 Blackstone says: "It is likewise a franchise for a number of persons to be 
 incorporated and subsist as a body politic; with power to maintain perpetual 
 succession, and do other corporate acts ; and each individual member of such 
 corporation is also said to have a franchise or freedom." Commentaries, 
 Book II, p. *37, 1766. Judge Cooley, in his note to this statement, in his edi- 
 tion of Blackstone's Commentaries, 1870, p. *40 note, says: "Among the 
 most important of modern franchises are the franchise to be a corpora- 
 tion. * * * And not only is the right to be a corporation a franchise, but 
 so'is every particular right or privilege possessed by a corporation under its 
 charter, which could only be exercised by legislative permission." Blackstone 
 says further, citing Finch 164 (1613): "Franchises and liberty are used as 
 synonymous terms ; and their definition is, a royal privilege or branch of the 
 king's prerogative, subsisting in the hands of the subject * * * they may 
 be vested in either natural persons or bodies politic; in one man, or in many; 
 but the same identical franchise that has before been granted to one can not
 
 THE CORPORATION AS A FRANCHISE. 1 59 
 
 be bestowed on another, for that would prejudice the former grant." (But as 
 to this, see, Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35, infra, p. 309, contra.) 
 
 Mr. Kyd, Law of Corporations, p. 14 ( 1793), says: "A corporation has also 
 been called a franchise; the propriety of this appellation depends on the 
 more or less extensive meaning in which the word 'franchise' is used ; in its 
 most extensive sense it expresses every political right which can be enjoyed 
 or exercised by a freeman ; in this sense the right of being tried by a jury, 
 the right a man may have to an office, the right of voting at elections, may, 
 with propriety, be called franchises ; and in this sense the right of acting, as a 
 corporation, may be called a franchise, existing collectively in all the individuals 
 of whom the corporation is composed ; in this sense, and in this sense alone, 
 'the franchise of being a corporation' can have any precise meaning. 
 
 "In a less general and more appropriate sense, the word 'franchise' means 
 a royal privilege in the hands of a subject, by which he either receives some 
 profit or has the exclusive exercise of some right ; of the first kind are the goods 
 of felons, waifa, estrays, wrecks or the like ; of the second are courts, gaols, re- 
 turn of writs, fairs, markets and many others. They are estates and inheritances, 
 which may be granted and conveyed from one to another, as other estates, 
 which is not the case with a corporation ; in this sense a corporation can not 
 be called a franchise ; the latter is a privilege, or liberty, which can have no 
 existence without reference to some person to whom it may belong; the 
 former is a political person, capable, like a natural person, of enjoying a 
 variety of franchises ; it is to a franchise as the substance to its attribute; it 
 is something to which many attributes belong, but is itself something dis- 
 tinct from those attributes." 
 
 Justice Washington, in Dartmouth College v. Woodward, 4 Wheat. (U. S.) 
 518, 1819, on p. 657, says: "A corporation is defined by Mr. Justice Black- 
 ' stone, 2 Bl. Com. 37, to be a franchise. It is, says he, "a franchise for a 
 number of persons to be incorporated and to exist as a body politic, with a 
 power to maintain perpetual succession and to do corporate acts, and each 
 individual of such corporation is also said to have a franchise, or freedom." 
 This franchise like other franchises is an incorporeal hereditament issuing 
 out of something real or personal, or concerning or annexed to, or exercisable 
 within a thing corporate. To this grant or this franchise, the parties are the 
 king, and the persons for whose benefit it is created, or trustees for them. 
 The assent of both is necessary." (See Skelly v. The Jefferson Bank, 9 Ohio 
 St. 606, on 623, where the court shows how this definition of a franchise was 
 used in the decision of the Dartmouth College case.) 
 
 In People v. Tibbets, 4 Cow. (N. Y.) 358, 380 ( 1825), it is said : "To be a 
 corporation is a franchise (2 Bl. Com. 37), for the usurpation of which an in- 
 formation always lies (citing People v. TJtica Ins. Co., 15 Johns. (N. Y.) 386, 
 389, supra, p. 113; R. v. Nicholson et al., 1 Str. 299). And the question is 
 whether the intrusion into offices created for the government or exercise of 
 the franchise is equally within the act as an usurpation of the franchise 
 itself?" Held, it was, and that quowarranto would be allowed against persons 
 who intrude themselves into the office of directors of an insurance company. 
 (To same effect see: 1833, State v. Buchanan, Wright (Ohio) 233; State v. 
 Harris, 3 Ark. 570; 1862, Smith v. State Bank, 18 Ind. 327; 1837, Common- 
 wealth v. Gill, 3 Whart. (Pa.) 228; 1881, Creek v. State, 77 Ind. 180; 1887, 
 State v. Mayor, etc., 10 Atl. (N. J.) 377. 
 
 Kent, Commentaries, vol. ii, p. 267, 1827, says: "A corporation is a fran- 
 chise possessed by one or more individuals, who subsist, as a body politic, 
 under a special denomination, and are vested by the policy of the law, with 
 the capacity of perpetual succession, and of acting in several respects, how- 
 ever numerous the association may be, as a single individual." He says, 
 also, vol. iii, p. 458, "Another class of incorporeal hereditaments are fran- 
 chises, being certain privileges conferred by grant from government, and 
 vested in individuals. In England they are very numerous, and are under- 
 stood to be royal privileges in the hands of a subject. They contain an im- 
 plied covenant on the part of the government not to invade the rights vested, 
 and on the part of the grantees to execute the conditions and duties prescribed
 
 I6O NOTES TO ARTICLE IV. 
 
 in the grant, * * and they are necessarily exclusive in their nature. Tne 
 government can not resume them at pleasure, or do any act to impair the 
 grant, without a breach of contract." (But as to this, see infra,p. 309, contra.) 
 
 The exclusive nature of corporate franchises (in these cases to build and 
 maintain a bridge) was the subject of much discussion in the cases of Charles 
 River Bridge v. Warren Bridge, 7 Pick. (Mass.) 344, on 520 (1829>, where the 
 nature of franchises are discussed. The supreme court of the United States 
 in the same case, 11 Peters (TJ. S.) 420 (1837), determined that the mere grant 
 of a franchise did not make it exclusive. In Enfleld Bridge Company v. The 
 Connecticut River Company, 7 Conn. 28, it was held the state could not grant 
 to another company the right to erect a bridge in the exact location previously 
 granted to another company. In the Americant Jurist, vol. 6, p. 87 et seq. 
 (1831), there is an article discussing these two cases, and going into the nature 
 of franchises somewhat in detail. In Trustees of Maysville v. Boon, etc., 2 
 J. J. Marsh. ( Ky.) 225, on 228, it is said : "A ferry is a franchise real, and may 
 be forfeited for non-user." See, also, Trustees of New Gloucester School Fund 
 v. Bradbury, 11 Maine 118, on 124, 26 Am. Dec. 515, on 518 (1834), where 
 Justice Washington's statement in Dartmouth College Case (supra) is given 
 and relied on. 
 
 In Price v. Price's Heirs, 6 Dana (Ky.) 107, it is said: "The right conferred 
 upon each shareholder [in a railroad company] is unquestionably an incor- 
 poreal hereditament. It is a right of perpetual duration ; and though it 
 springs out of personalty, as well as lands and houses, this matters not. It 
 is a franchise which has ever been classed in that class of real estate denom- 
 inated an incorporeal hereditament." "It will descend as realty, and is sub- 
 ject to dower as such." Citing 2 Bl. 20, 1, 2, 37-8; Co. Litt. 19, 20. Com. 
 Digest, Franchise. 
 
 In Montpelier Academy v. George, 14 La. 395, 33 Am. Dec. 585, on 590 
 (1840), Carleton, J., says, as to the franchise, after quoting Blackstone: 
 "There is a grantor and grantee whose assent is necessary ; the king parts 
 from his prerogative under an implied promise not to bestow the same fran- 
 chise on another corporate body. It, therefore, involves a contract not to re- 
 assert the right, grant it to another, or impair it." Citing King v. Passmore, 
 3T. R. 246; Fletcher v. Peck, 6 Cranch (U. S.) 87; Philips v. Bury, 1 Ld. 
 Raym. 5, s. c. 2 T. R. 346, 1 Kyd Corp. 25. To the same effect substantially is 
 Regents of Univ. of Md. v. Williams, 9 Gill & J. (Md.) 365, on 407, 31 Am. 
 Dec. 95 (1838). 
 
 In Enfield Toll Bridge Co. v. Hartford &N.H. R. Co., 17 Conn. 454, 44 Am. 
 Dec. 556 (1846), the bridge company had the exclusive right to build and 
 maintain a bridge over the Connecticut river at Enfield, and collect the tolls. 
 After the bridge had been taken by the railroad company under the power of 
 eminent domain, the bridge company claimed that, though this could be done, 
 there still existed "something beyond the bridge franchise which had been 
 invaded, a contract has been impaired." The court, by Church, J., replied: 
 "The contract constitutes the franchise. All franchises emanating from the 
 government are the results of contracts between the state and individuals. 
 To say, therefore, that although such franchises may be taken for public use 
 upon compensation, and at the same time to insist that the contract or cove- 
 nant by which they are created is unconstitutionally impaired, is an absur- 
 dity. 
 
 That a contract may as well exist between the state and corporate bodies 
 as between individuals, which are beyond their franchises, and beyond legis- 
 lative control, is true; but the contract creating the corporation and defining its 
 powers and privileges, is not of this character. This is identical with the franchise 
 itself, and subject to the same laws." 
 
 In Yarmouth v. North Yarmouth, 34 Maine 411, on 418, 56 Am. Dec. 666, on 
 670 (1852), it seemed funds derived from the sale of a school farm were 
 vested in trustees who were incorporated, in trust for school purposes in 
 North Yarmouth. Afterward the legislature divided this town into two, Yar- 
 mouth and North Yarmouth, the former of which claimed part of the funds, 
 under the act of the legislature which directed the funds to be so divided.
 
 THE CORPORATION AS A FRANCHISE. l6l 
 
 The trustees resisted and it was held, HOWARD, J. : "This fund was never in 
 the town, but was vested by the act, in the trustees as a corporation for the 
 use mentioned, forever. They did not constitute a municipal, or public cor- 
 poration, although the object of its creation might have been a public benefit. 
 Their charter was a grant from the state, partaking of the nature of a contract, 
 which they accepted, and in which the government had no interest. This was 
 a franchise, which involved the right to possess and control property, and the right 
 to perpetuate a corporate immortality. 2 Bl. Com. 37. Though springing 
 from the grant, the franchise and the rights flowing from it were no more 
 subject to the control or interference of the legislature than were private 
 rights of property, unless on default of the corporation judicially determined." 
 Cites: Co. Litt., 413; Viner's Abr. Corp. A. 2; Philips v. Bury, 2 T. R. 346; 
 Allen v. McKean, 1 Sumn. 276; Dartmouth Col. v. Woodward, 4 Wheat. 518 
 infra, p. 708; People v. Morris, 13 Wend. 325 (infra, p. 229) ; Penobscot Boom, 
 etc., v. Lamson, 16 Maine 224 (infra, p. 283).' 
 
 In Toledo Bank v. Bond, 1 O. S. 623 ( 1853), Bartley, J., says : "The franchise 
 of a private corporation is a trust of civil authority, which, under our system 
 of government, must remain at all times subservient to the public welfare, the 
 chief end and object of the delegation of all civil power by the people, and is, 
 therefore, not the legitimate subject-matter of contract Or sale." 
 
 See also State, ex rel., etc., v. Medical Society, 38 Ga. 608, 95 Am. Dec. 408 
 (1869), supra, p. 136, where the nature of the members' right in a corpora- 
 tion is called a franchise. Compare with Board of Trade v. People, 91 111. 80, 
 below. 
 
 In Morgan v. Louisville, 93 TJ. S. 217, on 223 (1876), Justice Field says: 
 "Much confusion of thought has arisen in this case and in similar cases from 
 attaching a vague and undefined meaning to the term franchisee. It is often 
 used as synonymous with rights, privileges, and immunities, though of a per- 
 sonal and temporay character; so that, if any one of these exists, it is loosely 
 termed a "franchise," and is supposed to pass upon a transfer of the fran- 
 chises of the company. But the term must always be considered in connec- 
 tion with the corporation or property to which it is alleged to appertain. The 
 franchises of a railroad corporation are rights or privileges which are essential 
 to the operations of the corporation, and without which its road and works 
 would be of little value ; such as the franchise to run cars, to take tolls, to ap- 
 propriate earth and gravel for the bed of its road, or water for its engines, 
 and the like. They are positive rights or privileges, without the possession 
 of which the road of the company could not be successfully worked. Im- 
 munity from taxation is not one of them. The former may be conveyed to a 
 purchaser of the road as a part of the property of the company ; the latter is 
 personal, and incapable of transfer without express statutory direction." To 
 the same effect are Wilson v. Gaines, 103 U. S. 417 ; Louisville & N. R. Co. v. 
 Palmes, 109 U. S. 244 ; Memphis R. Co. v. Commissioners, 112 U. S. 609 (supra, 
 p. 143). 
 
 In Smith y. Mayor, etc., of New York, 68 N. Y. 552, on 555 (1877), the 
 court, in distinguishing a franchise from property held under a franchise, said : 
 "Under the laws of our state a mere franchise or incorporeal hereditament of 
 any kind is not taxable, except by special statute. The plaintiff has a fran- 
 chise to construct and maintain this pier, and take wharfage for its use. The 
 pier itself is a structure built under his franchise. It is tangible, bulky prop- 
 erty, and in no sense incorporeal. It is not like a mere right or privilege, 
 which has no physical existence. A person may have a franchise to build and 
 maintain a bridge, and take toll for its use. The bridge, as a structure, is not 
 a franchise. He may not be taxed on his franchise, but he can be taxed upon 
 the structure or real estate." 
 
 See, also, Spring Valley Water Works v. Schottler, 62 Cal. 69, 106 (supra, 
 p. 120). 
 
 1878, The Board of Trade of Chicago v. The People, 91 111. 80. Relator 
 was expelled from the board of trade and brought mandamus to compel that 
 body to restore him to membership; a peremptory mandamus was issued, and 
 11 WIL. CASES.
 
 1 62 NOTES TO ARTICLE IV. 
 
 the respondent brings the suit directly to the supreme court, under a statu- 
 tory provision that "Appeals and writs of error shall lie from final orders of 
 the circuit court to the supreme court in cases involving a franchise or a free- 
 hold." Relator moved to dismiss as no franchise was involved. The court, 
 by Mr. Justice Scott, says: "The inquiry, then, must be, does the member- 
 ship of the relator come within the definition of a franchise as that term is 
 used in the statute? Our conclusion is, it does not." After quoting Black- 
 stone's definition, which was adopted in 73 111. 541, and several other cases 
 cited, to the effect that "corporate franchises in the American states emanate 
 from the government or sovereign power, owe their existence to a grant, or, 
 as at common law, to prescription, which presupposes a grant, and are 
 vested in individuals or a body politic," the court continues: "It must have 
 been in this restricted sense the term "franchise" was used by the general 
 assembly in the statute we are considering, and not in that broad sense con- 
 tended for. No doubt the word "franchise" is sometimes used as synony- 
 mous with privileges and immunities of a personal character; but in law its 
 appropriate meaning is understood to be something which the citizen can not 
 enjoy without legislative grant. Many of our religious, benevolent, literary 
 and scientific societies and associations are incorporated under general or 
 special laws, but it was never understood that members of such societies or as- 
 sociations possessed or exercised any franchise. What they obtain is what is 
 most appropriately termed "membership," which means freedom of the priv- 
 ilege it confers, and nothing more. That is precisely the case at bar. Rela- 
 tor had membership in this corporation and the freedom of its privileges, 
 whatever they were, but in no just sense did he exercise any franchise granted 
 to him or the corporation by the general assembly. It is lawful for any per- 
 son or association of persons to transact commercial business without legisla- 
 tive grant for that purpose. A corporation for such purposes is a mere con- 
 venience and nothing more. A member of such corporation exercises no 
 other right in the buying or selling of commodities than what any citizen of 
 common right may do, except as in the present instance, by virtue of his 
 membership he may transact such business in a room belonging to the corpo- 
 ration, which is a mere privilege and not a franchise, in the sense that term is 
 used in the statute. One test that might well be applied is that in case of the 
 non-user or misuser by the party owning membership in such a corporation 
 an information would not lie against him at the suit of the people." 
 
 In Memphis & L. R. Co. v. Berry, 112 U. S. 609, on 619 (18841, supra, p. 143, 
 Mr. Justice Matthews gives a description of corporate franchises, and shows 
 that "the franchise of becoming and being a corporation, in its nature, is in- 
 communicable by the act of the parties, and incapable of passing by assign- 
 ment," citing Commonwealth v. Smith, 10 Allen 448, 455; Hall v. Sullivan 
 R. Co., 2 Redfield's Am. Ry. Cases 621, and Coe v. Columbus, P. & I. R. Co., 
 10 O. S. 372, 386. 
 
 In New Orleans, S. F. & L. Co. v. Delamore, 114 U. S. 501 (1885), it is said : 
 "A franchise to use and occupy the streets of a municipality by a railroad 
 corporation, granted by the municipality, is such a franchise as may be mort- 
 gaged and pass to the purchaser at a sale under foreclosure of the mortgage." 
 
 So. too, in State v. East Fifth St. R. Co., 140 Mo. 539, 62 Am. St. R. 742, 38 
 ii. R. A. 218, infra, p. 706 (1897), quo warranto was brought in the lower court 
 to oust the street railway company of its privilege of operating its railway 
 upon certain streets in Kansas City, because of non-user, the city having un- 
 der authority of the state granted the privilege to said company. The de- 
 fense was no franchise of the state, if any franchise at all, had been violated 
 by the non-user. The court of review says: "It may be said that corporate 
 existence is as much a franchise as the franchises of the corporation. The 
 former is not property in the ordinary acceptation of the term, can not be 
 transferred by ordinary conveyance or sale under execution, unless the stat- 
 utes of the state so provide ; while corporate franchises are property, can be 
 transferred by voluntary conveyance or by sale, under execution against the 
 corporation." Held, suit was properly brought by the state, and ouster was 
 declared. Compare People, ex rel. Jackson, v. Suburban R. Co., 178 III. 594
 
 THE CORPORATION AS A FRANCHISE. 163 
 
 (1899); Tower v. Tower & S. S. R. Co., 68 Minn. 500, 64 Am. St. R. 493 
 (1897) ; Wright v. Milwaukee Elec. R., etc., Co., 95 Wis. 29, 60 Am. St. R. 
 74 (1897); Milwaukee Electric R. Co. v. Milwaukee, 95 Wis. 39, 60 Am. St. 
 R. 81 (1897); Belleville v. Citizens' Home R. Co., 152 111. 171, 26 L. R. A. 681 
 (1894), and People v. Mutual Gas L. Co., 38 Mich. 154 (1878). 
 
 In New Orleans Water- Works Co. v. Rivers, 115 U. S. 674 (1885), the court 
 says: "An exclusive franchise granted by the legislature to supply water to 
 the inhabitants of a municipality by means of pipes and mains laid through 
 the public streets is violated by a grant to an individual in the municipality 
 of the right to supply his premises with water by means of a pipe or pipes so 
 laid, and is a contract protected by the United States constitution." To the 
 same effect in regard to gas pipes for lighting, etc., are Louisville Gas Co. v. 
 Citizens' Gas L. Co., 115 U. S. 683, and New Orleans Gas Co. v. Louisiana 
 Light Co., 115 U. S. 650. 
 
 Perhaps the best definition of franchises is that given by Bradley, J., in 
 California v. Central Pacific R. Co., 127 U. S. 1, on 40 (1887), as follows: 
 "What is a franchise? Under the English law, Blackstone defines it 'as a 
 royal privilege, or branch of the king's prerogative subsisting in the hands of 
 a subject,' 2 Bl. Com. 37. Generalized and divested of the special form which 
 it assumes under a monarchical government based on feudal traditions, a 
 f ranchise is a right, privilege, or power of public concern, which ought not to 
 be exercised by private individuals at their mere will and pleasure, but should 
 be reserved for public control and administration, either by the government 
 directly, or by public agents, acting under such conditions and regulations as 
 the government may impose in the public interest, and for the public recurity . 
 Such rights and powers must exist under every form of society. They are 
 always educed by the laws and customs of the community. Under our system, 
 their existence and disposal are under the control of the legislative depart- 
 ment of the government, and they can not be assumed or exercised without 
 legislative authority. No private person can establish a public highway, or a 
 public ferry, or railroad, or charge tolls for the use of the same, without 
 authority from the legislature, direct or derived. These are franchises. No 
 private person can take another's property, even for a public use, without 
 such authority; which is the same as to say that the right of eminent domain 
 can only be exercised by virtue of legislative grant. This is a franchise. 2Vb 
 persons can make themselves a body corporate and politic without legislative author- 
 ity. Corporate capacity is a franchise." 
 
 Mr. E. R. A. Seligman, in his Essays on Taxation, ch. vii, p. 180, criticises 
 this definition as being too narrow, since, in his judgment, it unduly em- 
 phasizes the element of public control and public interest. He defines a fran- 
 chise as "simply a right conferred by government of conducting an occupation 
 either in a particular way or accompanied with particular privileges." We 
 prefer the definition of the supreme court, as given by Justice Bradley, and 
 believe it is desirable to emphasize the element of public control. 
 
 A very short but clear definition is given by Justice Field in Home Ins. Co. 
 v. New York, 134 U. S. 594 on 599 (1889), as follows: By the term corporate 
 franchise, we understand is meant the right or privilege given by the state to 
 two or more persons of being a corporation, that is, of doing business in a 
 corporate capacity, and not the privilege or franchise which, when incorpo- 
 rated, the company may exercise. The right or privilege to be a corporation, 
 or to do business as such body, is one generally deemed of value to the corpo- 
 rators, or it would not be sought in such numbers as at present." 
 
 In Macqn, etc., R. Co. v. Gibson, 85 Ga. 1, 21 Am. St. R. 135 (1890), under 
 the Georgia Code providing that, "In all cases of private charters hereafter 
 granted, the state reserves the right to withdraw the franchise, unless such 
 right was expressly negatived in the charter," the court said: "It is quite 
 too narrow a definition of the word '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. 1 ' 
 
 So, too, in State v. Boston, etc., R. Co., 25 Vt. 442, it is said: "All th> 
 functions of a corporation are in one sense franchises. The right to hold
 
 1 64 NOTES TO ARTICLE IV. 
 
 property in the corporate name, to sue and be sued in that capacity, to have 
 and use a corporate seal, and by that to contract, and some others, perhaps, 
 are franchises, which constitute the very definition of a corporation." Simi- 
 larly in Pierce v. Emery, 32 N. H. 507, it is said : "The different powers of a 
 private corporation, like the right to hold and dispose of property, are its 
 franchises." Compare State v. Minnesota T. M. Co., 40 Minn. 213 (1889). 
 For other definitions and statements describing franchises, see State, Kan- 
 sas v. Corrigan Con. St. R., 85 Mo. 263, 55 Am. R. 361; Homestead St. R. 
 Co. v. Pittsburgh & H. E. St. R. Co., 166 Pa. St. 162, 27 L. R. A. 383; 
 Detroit Citizens' St. R. v. Detroit, 22 TJ. S. App. 570, 64 Fed. R. 628, 26 L. R. 
 A. 667; People v. O'Brien, 111 N. Y. 1, 2 L. R. A. 255; Wilmington Water 
 Power Co. v. Evans, 166 111. 548; M. & S. Society of Montgomery County 
 v. Weatherly, 75 Ala. 248, 253; Port of Mobile v. Louisville & N. R. 
 Co., 84 Ala. 119; Williams v. Citizens' R. Co., 130 Ind. 71, 15 L. R. A. 64; 
 Baltimore Trust G. Co. v. Baltimore, 64 Fed. R. 153; Wheat v. Alexandria, 
 88 Va. 743; Bank of Augusta v.Earle,13 Pet. (U.S.) 519, 595; Huff v. Winona, 
 etc., R. Co., 11 Minn. 180, 192; Chesapeake, etc., Canal Co. v. B.& O. R. Co., 
 4 Gill & J. (Md.) 1, 191 ; Society for Sav. v. Coite, 6 Wall. (U. S.) 594, 606; 
 Adams v. Yazoo & M. V. R. Co., 24 So. (Miss., 1898) 200. Also particularly 
 Justice Story's and Justice Washington's opinions in Dartmouth College v. 
 Woodward, 4 Wheat. 518, infra, pp. 723-741. 
 
 i- Mr. Morawetz, Treatise on Law of Private Corps., 2d Ed., 1886, says, 8: 
 \ "Under the common law of England and the United States, a corporation 
 can not be formed like a partnership, merely by a contract between the in- 
 dividuals composing it. The right of forming a corporation and of acting in a 
 corporate capacity must be treated as a franchise, or special privilege, which 
 may not be assumed without a grant of authority from some governing 
 power." In 922, he says: "The word 'franchise' is generally used to des- 
 ignate a right or privilege conferred by law. Thus, when the legislature 
 grants a charter of incorporation, it confers upon the grantees of the charter 
 the right or privilege of forming a corporate association, and of acting within 
 certain limits in a corporate capacity, and this right or privilege is called the 
 corporate franchise." In 923: "What is called the franchise of forming a 
 corporation is really but an exemption from a general rule of common law 
 prohibiting the formation of corporations. In former times, this exemption 
 was granted only in exceptional cases, by a special charter in each instance. 
 It was, therefore, looked upon as something valuable as a gift of a special 
 privilege to the grantees of the charter and was called a franchise. At the 
 present day, however, the prohibition of the common law has been in a great 
 measure repealed by the general incorporation laws. What was formerly 
 the exception has now become the general rule. All persons have now the 
 right of forming corporate associations, upon complying with the simple 
 formalities prescribed by statute. The right of forming a corporation and of 
 acting in a corporate capacity, under the general incorporation laws, can be 
 called a franchise, only in the sense in which the right of forming a limited 
 partnership or of executing a conveyance of land by deed is a franchise." In 
 note 3, 922, he says: "The corporate franchises are sometimes said to be- 
 long to the corporation; but this is not accurate. They belong to the share- 
 holders." See also 648, 649, 650, 651, 652, 653. These views of Morawetz 
 are cited approvingly in State v. Western Irrigating Canal Co., 40 Kan. 96, 
 10 Am. St. R. 166 (1888), holding that the sale of the franchise of being a 
 corporation is inoperative to invest the purchaser with corporate power. 
 
 Judge Thompson, Commentaries on Corporations, section 5353 (1895), 
 says: "In respect to the rJbwer of a corporation to alien its franchises, a dis- 
 tinction has been taken by the courts between what may be regarded as pri- 
 mary and what as secondary franchises. The franchise of being a corporation 
 of having a corporate existence is a franchise of the former character; and 
 the franchise of carrying on a particular business or holding particular prop- 
 erty is of the latter character. * * * No one but the sovereign can create 
 a corporation ; and hence one corporation can not create another, by selling 
 to the latter its own privilege of having a corporate existence ; though, as al-
 
 THE CORPORATION AS A FRANCHISE. 165 
 
 ready seen, the members who compose the corporation may, after it has been 
 organized and its shares have been issued, by transferring their shares to 
 others, introduce a totally new membership into the corporate body and re- 
 tire therefrom themselves. * * * The rule had a very substantial value 
 when the franchise to be a corporation was generally granted by the king in 
 his council * * * when such grants could not be obtained except in con- 
 sideration of the rendition of important services to the king or to the state. 
 But under our American constitutions, under which a body of co-adventurers 
 may freely organize themselves into a corporation by complying with certain 
 statutory forms and paying a moderate tax, the franchise of being a corpora- 
 tion is scarcely more valuable than the franchise, if there could be such a 
 thing, of being a partnership. It is a myth ; and the rule under considera- 
 tion would.be the silliest casuistry except for its value as a rule of interpre- 
 tation of railway and other corporate mortgages." 
 
 Judge Elliott in his Law of Private Corporations (1900), devotes one 
 chapter (5) to "Franchises and privileges," giving an excellent condensed 
 view of the subject. 
 
 It is submitted that the above statements of Judge Thompson and Mr. 
 Morawetz in regard to the corporate franchise are very much overdrawn, if 
 not entirely incorrect. It might be pertinent to inquire, why is it, if the right 
 to be a corporation is of no value, that so many corporations are formed? Why 
 is it that four-fifths of the wealth of the United States is held under corporate 
 organization? Why is no great enterprise undertaken except under a cor- 
 porate form of organization? The franchise of being a corporation is valuable; 
 the fact that the state makes it easy to obtain this franchise does not take 
 from its value, any more than the fact that every male over twenty-one can 
 vote makes the right to vote of no value. The corporate form of organiza- 
 tion is the most efficient form of business organization yet discovered by the 
 business world, and is consequently considered the most valuable by busi- 
 ness men. It furnishes the greatest possibility of concentration of means, the 
 completest unity of management, and the least individual personal responsi- 
 bility both financially and morally of any business machine yet invented, to 
 say nothing of the possibility of fraud, speculation, and exploitation that lax 
 corporation laws, both now and heretofore, have made possible if not actually 
 invited. 
 
 But, after all, are our general incorporation laws a mere repeal of the com- 
 mon law a mere exemption from the common law prohibition of forming 
 corporations without consent of the king or state? Or was a special charter 
 itself a mere repeal of or exemption from such rule of the common law? The 
 legal theory the doctrine of the legislature, or the doctrine of the courts, is 
 not so, and never has been so, and it is hoped never will be so. The common 
 law prohibition is not repealed, or in fact modified in any essential particular, 
 but is the same as it was in Blackstone's time or before. A franchise at com- 
 mon law was something more than a license it could not be revoked by the 
 king after granting it, except for a justifiable cause judicially determined^ It 
 was something more than a law, also ; it was an estate or interest like an estate 
 in land ; a repeal of the law granting it did not take it away in any other way 
 than the repeal of a law granting land, by the transcendent power of parlia- 
 ment, took away the estate in the land that is, by a forfeiture or bill of at- 
 tainder, or something of that kind. A franchise to be a corporation was of the 
 same character a grant of a privilege might be many, or only one, but at 
 least one, that is, the right to do the designated business under the corporate 
 form of organization. But it was still more than this: it was a grant upon a 
 condition, a kind of condition subsequent the condition being the faithful 
 performance of the business to be conducted under the corporate form of or- 
 ganization in other words, that there be no "non-user, misuser or abuser" of 
 the privilege. It was very much the same as the condition always annexed to 
 the grant of a freehold estate in land it was in the theory of the common law 
 always held from the king upon the condition that the holder do not commit 
 treason or felony ; if he did, the land would then be forfeited upon conviction 
 after indictment and trial in the king's bench. So, too, the corporate franchise
 
 1 66 NOTES TO ARTICLE IV. 
 
 was held upon a like condition non-user or misuser led to forfeiture upon judg- 
 ment in scire facias or quo warrauto proceedings in the king's bench. This 
 theory of & franchise yet remains with us, and is in no way repealed. Under 
 our United States constitution, and the decisions of the supreme court, the 
 transcendent power of parliament to declare forfeitures of either land or fran- 
 chises, is taken from our legislative bodies of the states at least (Fletcher v. 
 Peck, 6 Cranch 87, and Dartmouth College v. Woodward, 4 Wheat. 518). But 
 the right to forfeit franchises for misuser or non-user, in the proper judicial 
 proceedings, yet remains. It perhaps matters but little to the state whether 
 A., B. and C., either separately, jointly, or in a partnership, refine sugar or 
 petroleum. If they engage in this business they may do so when and where 
 they please, stop when they please, or agree not to make any more the 
 latter contract, under some circumstances being simply unenforcible, but not 
 a cause of forfeiture or punishment. But if A., B., C., D., etc., form a corpo- 
 ration for making or refining sugar or oil, the case is different; the business 
 is not different it is neither more nor less public, nor more nor less a fran- 
 chise than it was before; the privilege is not in making sugar or oil, but 
 bringing into existence and using in this business the valuable, efficient, im- 
 personal and in many ways morally less responsible, agency or organization 
 known as the corporation; this is the privilege, a privilege of "public concern," 
 a franchise, always having as an inseparable incident, always granted upon 
 the implied condition that it will not be misused or abused. For not making 
 oil, or sugar, or even agreeing not to do so, the charter, the franchise of being 
 a corporation for such purpose, can be taken away by the state. (See People v. 
 North River Sugar Ref. Co., 121 N. Y. 582, 18 Am. St. R. 843, supra, 100; State 
 v. Standard Oil Co., 49 0. S. 137.) Herein lies the essential difference between 
 a corporation and a partnership or joint stock company. (See Gleason v. 
 McKay, 134 Mass. 419, infra, p. 167. 
 
 The franchise to conduct any business as a corporation, or through a corpo- 
 rate organization, is now, and has always been since the time of the Romans, 
 "a matter or privilege of public concern," given by the state only on condition 
 that it be not abused. Kent says: "Solon permitted private companies 
 to institute themselves at pleasure, provided they did nothing contrary to 
 the public law. But the Romans were not so indulgent as the Greeks. 
 They w r ere very jealous of such combinations of individuals, and they re- 
 strained those that were not especially authorized, and every corporation was 
 illicit that was not ordained by a decree of the senate or emperor. Collegia 
 licita, in the Roman law were, like our incorporated companies, societies 
 of men united for some useful business or purpose with power to act like a 
 single individual, and if they abused their right, or assembled for any other 
 purpose than that expressed in their charter, they were deemed illicita, and many 
 laws from the time of the Twelve Tables down to the times of the emperors 
 were passed against all illicit or unauthorized companies. In the age of 
 Augustus, certain corporations had become nurseries of faction and disorder : 
 and that emperor interposed, as Julius Caesar had done before him, and 
 dissolved all but the ancient and legal corporations. * * * And the Em- 
 peror Trajan, in refusing to incorporate a fire company, said, 'that societies of 
 that sort had greatly disturbed the peace of the cities ; and whatever name he 
 gave them, or for whatever purpose they might be instituted, they would not 
 fail to be mischievous,'" citing Taylor's Elements of Civil Law, 567-570: 
 Suetonius, Ad. Aug. 32, and J. Csesar 42, vol. 2, pp. 268-9. 
 
 Does not this experience of the old Romans, the experience of England in 
 the early part of the last century, with John Law's schemes and the South Sea 
 Bubble, and the experience of our own day attest the wisdom of the common 
 law rule that the "right to be a corporation is a franchise of public concern, 
 held upon the implied condition that it will not be abused, under penalty of 
 forfeiture," and that it is well to hold fast to such rule? It, of course, has been 
 the policy of corporations and corporation counsel to minimize the franchise 
 as much as possible, under nearly every circumstance, except where they 
 have had to fight for their existence; and the above expressions of the lead- 
 ing text writers of the day have helped (perhaps unwittingly) to make ob-
 
 30 CORPORATION AND PARTNERSHIP. l6/ 
 
 scare this wholesome doctrine, both in the minds of the people and of many 
 judges as well. The legislatures, too, of several states have substantially abdi- 
 cated the power of the state to retain control over the creatures of its bounty 
 by authorizing the formation of joint-stock companies with nearly all the 
 powers of corporations, without the liability to render an account at the hands 
 of the state in quo warranto proceedings. The older writers Blackstone, Kyd, 
 Kent, Angell & Ames and Grant all hold fast to these old and tried doctrines, 
 and are, therefore, better guides in these matters than later writers. 
 
 ARTICLE V. CORPORATIONS AS DISTINGUISHED FROM OTHER INSTI- 
 TUTIONS. 
 
 Sec. 30. (i) From partnerships. 
 
 GLEASON v. McKAY. 1 
 
 1883. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 
 
 134 Mass. 419-426. 
 
 [In 1866 McKay was the owner of certain letters-patent for improve- 
 ments in machinery used in the manufacture of shoes ; from the pro- 
 ceeds of the business he had built a machine shop for the manufacture 
 of these machines. He was the legal owner, but others were 
 equitably interested in various amounts. He executed an instrument 
 of trust, declaring himself to hold the business in trust for all who 
 were, or might become, interested therein, upon condition that those 
 so interested who accepted the declaration of trust and had a certain 
 certificate evidencing their interest, should constitute and be an associa- 
 tion, to be known as the McKay Machine Association, but no member 
 shall have any right or authority to make any contract or bargain, or 
 transact any business whatever for the association, without special 
 authority ; it was to continue thirty years ; death of members was not 
 to dissolve or have any effect on the association, except that those 
 who succeeded to ownership of shares should succeed to the rights of 
 the decedent ; that the association should be the equitable owner of 
 the business, which was to be divided into 50,000 shares, to be dis- 
 tributed among the members in proportion to their interests, which 
 were to be evidenced by certificates indicating the number of shares, 
 the same to be transferable, by assignment in writing and surrender 
 to the trustee, who was to issue a new certificate, keeping record of 
 the same ; the general management was to be in an executive committee 
 of three or five, to be chosen by the whole body of shareholders ; and 
 this committee was to divide proceeds from time to time in proportion 
 to the respective interests ; provision was also made whereby the 
 business might be transferred to a corporation, when a majority should 
 so determine, and thereafter no member was to have or claim any 
 right to the property or business, and the declaration of trust was to 
 cease ; provision was also made for choosing a new trustee in case of 
 death or resignation of McKay. McKay was taxed, as trustee of said 
 
 1 Statement of facts condensed, and compiled partly from Hoadley v. County 
 Commissioners of Essex, 106 Mass. 519; arguments omitted.
 
 1 68 GLEASON v. M'KAY. 30 
 
 association, upon its real estate, machinery, tools and all personal 
 property. The commonwealth, in addition to the foregoing taxes, 
 sought to collect a tax upon the aggregate value of the shares of the 
 association. This was resisted.] 
 
 MORTON, C. J. The principal question in this case is whether the 
 statute of 1878, chapter 275, as applied to the defendant, is constitu- 
 tional. The first section of the statute provides that "chapter 283 of 
 the acts of the year 1865, and the acts in amendment thereof, are 
 hereby extended to apply, so far as applicable to companies, copart- 
 nership and other associations having a location or place of business 
 within this commonwealth, in which the beneficial interest is held in 
 shares which are assignable 'without consent of the other associates 
 specifically authorizing such transfer. And the tax provided for in 
 said chapter 283 shall be paid by such company, copartnership or as- 
 sociation upon the aggregate value of the shares of said capital stock, 
 in the manner provided in said chapter for taxes upon corporations." 
 
 The power of taxation, using the word in its generic sense as in- 
 cluding all rates and impositions laid or levied upon the people, is 
 conferred upon the legislature by the constitution, and is to be held 
 and exercised subject to the limitations imposed by the constitution. 
 Oliver v. Washington Mills, II Allen 268. The legislature is given 
 the power "to impose and levy proportional and reasonable assess- 
 ments, rates and taxes upon all the inhabitants of, and persons resident, 
 and estates lying within the said commonwealth," and also power "to 
 impose and levy reasonable duties and excises upon any produce, 
 goods, wares, merchandise and commodities whatsoever, brought 
 into, produced, manufactured or being within the. same." Const, of 
 Mass., chap, i, art. 4. 
 
 It is clear that the statute in question was not intended to lay a tax 
 upon property within the first of .these clauses. It does not purport 
 to do this. It merely extends to certain copartnerships and associa- 
 tions the provisions of the St. of 1865, c. 283, which chapter has been 
 held to levy an excise upon corporate franchises, and not to lay a 
 tax on property, and which chapter can be sustained as constitutional 
 only upon the ground that it levies an excise. Murray v. Berkshire 
 Ins. Co., 104 Mass. 586. Commonwealth v. Hamilton Manfg. Co., 
 12 Allen 298. Regarded as a tax on property, the tax we are con- 
 sidering would be invalid because not proportional ; it would be an 
 imposition upon certain property at a rate different from that to which 
 other property in the commonwealth is subject. But, as we have 
 said, it does not purport to be a tax on property. In levying an im- 
 position under this statute, no inquiry is made as to what property 
 liable to taxation any copartnership, or other association which comes 
 within its terms, has. Such property remains liable to taxation under 
 the general laws. This imposition is based " upon the aggregate 
 value of the shares of said capital stock." Such shares, if they can be 
 said to be property, are not the property of the copartnership or asso- 
 ciation which is taxed, but of the individual partners or shareholders. 
 It is very clear that this was intended as an excise upon some
 
 3 CORPORATION AND PARTNERSHIP. 169 
 
 franchises or privileges sought to be held by the copartnerships or 
 associations in supposed analogy to the franchises of corporations. 
 And the question is whether this imposition can be upheld as such 
 excise within the second clause of the constitution, cited above. In 
 this clause, there are two limitations upon the power of the legislature 
 in imposing excises. They must be reasonable, and they must be 
 excises upon some produce, goods, wares, merchandise or commodi- 
 ties, brought into, produced, manufactured or being within the com- 
 monwealth. 
 
 It will not be seriously contended that the privileges or rights which 
 are taxed by this statute can be properly described as either pro- 
 duce, goods, wares or merchandise. Do they fairly come within 
 the term "commodities," in the sense in which it is used in the con- 
 stitution? Ever since the adoption of the constitution, the legisla- 
 ture in its practice, and this court in its adjudications, have given a 
 very broad and extensive meaning to this term. It has been repeat- 
 edly held that corporate franchises enjoyed by grant from the govern- 
 ment are commodities, and subject to an excise. So with corporate 
 franchises granted by a foreign government, which by comity are 
 permitted to be exercised within this commonwealth. So where the 
 legislature has thought, upon considerations of public policy, that 
 certain occupations or callings, of a public or quasi public character, 
 should be carried on under governmental regulation it has been usual 
 to impose a reasonable fee for a license. Portland Bank v. Apthorp, 
 12 Mass. 252; Commonwealth v. People's Five Cents Saving Bank, 
 5 Allen 428; Commonwealth v. Hamilton Manuf. Co., ubi supra ; 
 Commonwealth v. Gary Improvement Co., 98 Mass. 19; Connecti- 
 cut Ins. Co. v. Commonwealth, 133 Mass. 161. 
 
 This imposition is clearly not in the nature of a license fee, but is 
 an excise upon a franchise or privilege. The right to levy excises 
 upon franchises has never been extended further than to corporate 
 franchises specially granted by the government, or enjoyed and ex- 
 ercised by its permission. 
 
 The defendant in this case is not a corporation. It is merely a 
 partnership, with all the incidents and responsibilities of a partnership. 
 The firm property is taxable at its business domicile. Hoadley v. 
 County Commissioners, 105 Mass. 519. It enjoys no franchises con- 
 ferred upon it by the legislature. It does not ask for or enjoy any 
 corporate or special privileges. It has constituted its partnership 
 under its common law rights and such legal agreements as it chooses 
 to make. The peculiar feature that the interest of each member may 
 be transferred without the special assent of the other members, is cre- 
 ated by agreement of the partners under their natural rights at com- 
 mon law. We do not see how this peculiar feature can be called a 
 commodity, subject to a special excise, any more than the agreement 
 of copartnership itself, or any clause or part of it, or any other agree- 
 ment, right or mode of transacting any business, can be called a com- 
 modity, and so liable to taxation at the will of the legislature. 
 
 If this tax can be upheld, it seems to us that the necessary result
 
 1 70 GLEASON V. M'KAY. 30 
 
 will be that the legislature has the power to select any business, occu- 
 pation or calling carried on, or any natural right enjoyed, under the 
 protection of our laws, and impose upon it at its will a special tax or 
 excise. This would be extending the meaning of the word "com- 
 modities" beyond any reasonable limits. Its effect would be to break 
 down the limitations which the constitution intended to impose upon 
 the power of the legislature, for the purpose of securing the end that 
 all sums necessary for the defense and support of the government 
 should, as far as practicable, be raised by the equal taxation of the 
 people. 
 
 We are therefore of opinion that the statute of 1878, chapter 275, 
 so far as it applies to the defendant, is unconstitutional. 
 
 Judgment for the defendant. 
 
 Note. See 1830, Pratt v. Bacon, 10 Pick. (Mass.) 123; 1833, Russell v. Mc- 
 Lellan, 14 Pick. (Mass.) 63; 1888, Pittsburg Melting Co. v. Reese, 118 Pa. 
 St. 355 ; and see Warner v. Beers ; People v. Coleman, Thomas v. Dakin ; 
 Edgeworth v. Wood, supra, pp. 2, 15, 19, 28. 
 
 The word partner is a contracted form of partitioner, and this indicates 
 somethingof its meaning. Partnerships were known to the Roman law under the 
 name of Societas, which was a contract based on the law which "natural rea- 
 son establishes between all men," i. e., the jus gentium. Most of the Roman 
 law of the subject is found in Dig. xvii, tit. 2, Pro Socio. Title 25, Book iii 
 of Justinian's Institutes relates to partnerships, and part of that is found in 
 Gaius iii, 148-154. The trade or commercial partnerships were the most com- 
 mon, though other kinds were recognized. The Roman laws of partnership, 
 so far as trade is conducted now as then, are still applicable. In England 
 the partnership law was introduced by the merchants as a part of the law or 
 custom of merchants, being one of the particular customs of the realm, some- 
 what in derogation of the common law, and consequently allowed, where the 
 rights of others were involved, only upon strict proof of the existence and 
 knowledge of the custom. In this way, many of the rules of the common 
 law were made applicable to partnerships. But the peculiar doctrines of no 
 survivorship; of the partners' act being that of all, if in reference to partner- 
 ship matter; and of dissolution by death of a partner, were from the law mer- 
 chant, and through it from the Roman law, and were contrary to the common 
 law rules of joint tenancy, and tenancy in common. The same difference be- 
 tween a partnership and a corporation, i. e., that the latter is a distinct entity 
 having rights and owing duties as such, as now recognized, was made in the 
 Roman law, and continued throughout the development of the common law 
 of England. 
 
 These differences perhaps can be classified as follows : 
 
 Corporation. Partnership. 
 
 As to creation : Only under special au- By contract alone. 
 
 thority of the state. 
 
 As to franchise : Has a franchise. Has no franchise. 
 
 As to management : Only in the way indicated Each member has au- 
 
 by law of its creation, thority to bind with- 
 
 and by the agents there in the limits of the 
 
 provided for. purpose. 
 
 As to powers: Has none, except neces- May be enlarged, or di- 
 
 sary to carry out purpose minished, at any- 
 indicated in charter, and time, or extended to 
 this can not be changed any other business, 
 exceptby consent of the by consent of all oon- 
 state. cerned.
 
 3i 
 
 CORPORATION AND JOINT STOCK COMPANY. 
 
 171 
 
 Corporation. 
 
 Has no effect on corpo- 
 rate existence. 
 
 As to succession of mem- 
 bership, death, with- 
 drawal, or insolvency : 
 
 As to property, owner- In the corporation, 
 ship: 
 
 As to conveyance : 
 
 As to suits, by or against 
 
 As to shares : 
 
 By the corporation only. 
 
 In name of corporation 
 only. 
 
 Transferable without con- 
 sent of corporation. 
 
 As to liability of mem- Limited. 
 
 bers: 
 As to termination : 
 
 Only upon surrender by 
 consent of the state, loss 
 of integral part, or for 
 non use or misuse of 
 franchise on complaint 
 of the state. 
 
 Partnership. 
 Dissolves. 
 
 In the members. 
 
 By the members only. 
 
 In name of members 
 only. 
 
 Not transferable with- 
 out consent of others, 
 or if so, dissolves 
 partnership. 
 
 Unlimited. 
 
 At the option of all the 
 parties or by the 
 death or withdrawal 
 of any member, not 
 by the state except 
 for illegal acts. 
 
 Sec. 31. (2) From joint-stock companies. 
 EDWARDS v. WARREN LINOLINE AND GASOLINE WORKS. 
 
 1897. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 168 
 Mass. Rep. 564-569, 38 Lawyer's Rep. Ann. 791. 
 
 TRUSTEE PROCESS. The principal defendant was described in the 
 writ as "a joint-stock company organized under the laws of Pennsyl- 
 vania." The trustee, which was a Massachusetts corporation, filed 
 an answer setting forth reasons why it should not be charged, and, on 
 interrogatories propounded by the plaintiff, made answers, the nature of 
 which appears in the opinion. The trustee moved that it be discharged. 
 The superior court allowed the motion, discharged the trustee with 
 costs, and dismissed the action ; and the plaintiff appealed to this court. 
 
 The case was argued at the bar in November, 1896, and afterwards 
 was submitted on briefs to all the justices. 
 
 LATHROP, J. It is conceded by the plaintiff that, as the jurisdic- 
 tion of the court depends upon charging the Walworth Manufacturing 
 Company as trustee, inasmuch as there was no service upon the 
 principal defendant, the action was properly dismissed upon discharg- 
 ing the trustee. 
 
 The question then is whether the trustee was properly discharged, 
 and this depends upon whether the principal defendant, an association 
 formed under the laws of the state of Pennsylvania, is a partnership 
 or a corporation. 
 
 The trustee's answers to interrogatories refer to Brightly's Purdon's 
 Digest (i2th ed), 1086-1088, and to the cases of Eliot v. Himrod, 
 1 08 Pa. St. 569, and Sheble v. Strong, 128 Pa. St. 315, as containing 
 the law relative to the statement in the answer, that the principal de- 
 fendant was a partnership and not a corporation. 
 
 From the digest it appears that such an association is styled a "part-
 
 1/2 EDWARDS V. WARREN LINOLINE, ETC., WORKS. 31 
 
 nership association," and not a corporation. By the terms of the various 
 acts which have been passed upon the subject, such an association 
 may be formed by three or more persons. The capital is alone to be 
 liable for the debts. There is no personal liability of the members, 
 except to the extent of any unpaid subscription, if certain provisions 
 of the act are complied with. "Interests in such partnership associa- 
 tions" are declared to be personal estate and are transferable, under 
 such rules and regulations as shall from time to time be prescribed; 
 but if there are no such rules and regulations, the transferee of any 
 interest in any such association is not entitled to any participation in 
 the subsequent business of the association, unless elected to member- 
 ship therein by a vote of a majority of the members in number and 
 value of their interests. The business is to be conducted by a board 
 of managers. The duration of the association may be fixed by the 
 articles of association, but is not to exceed twenty years. 
 
 Power to adopt and use a common seal is given in case the associa- 
 tion has occasion to execute a deed of conveyance or bonds and mort- 
 gages. Land sold to the association, or by it, is required to be 
 conveyed in the name of the association. It is further provided: 
 "Said association shall sue and be sued in their association name; 
 and when suit is brought against any such association, service thereof 
 shall be made upon the chairman, secretary or treasurer thereof, which 
 service shall be as complete and effective as if made upon each and 
 every member of such association." In Eliot v. Himrod, 108 Pa. St. 
 569, 580, it is said by Mr. Justice Trunkey, in delivering the opinion 
 of the court: "The formation of a limited partnership association is 
 materially different from the creation of a coiporation. Such association 
 is treated in the statute as a partnership which, upon the performance 
 of certain acts, shall possess specified rights and immunities. In con- 
 templation that the association may consist of many members, for 
 convenience it is clothed with many of the features and powers of a 
 corporation, such as the right to sue and be sued, grant and receive 
 in the association name. But no man can purchase the interest of a 
 member and participate in the subsequent business, unless by a vote 
 of a majority of the members in number and value of their interests. 
 No charter is granted to the persons who record their statement." 
 Sheble v. Strong, 128 Pa. St. 315, 318, is to the same effect. 
 
 If the question presented were an open one in this commonwealth, 
 it might well be held that such association could be considered to have 
 so many of the characteristics of a corporation that it might be treated 
 as one. 
 
 At common law, a joint-stock company formed for business pur- 
 poses is considered in this commonwealth merely as a partnership. 
 Tappan v. Bailey, 4 Met. 529; Tyrrell v. Washburne, 6 Allen 466. 
 
 The same rule has been applied to joint-stock associations formed' 
 under the laws of the state of New York, which do not differ, in am 
 essential respect, from the laws of Pennsylvania. Taft v. Ward, 106 
 Mass. 518, and in Mass. 518; Bodwell v. Eastman, 106 Mass. 525, 
 526; Gott v. Dinsmore, in Mass. 45, 51 ; Boston and Albany Rail-
 
 31 CORPORATION AND JOINT STOCK COMPANY. 1/3 
 
 road v. Pearson, 128 Mass. 445. See, also, Frost v. Walker, 60 
 Maine 468 ; Dinsmore v. Philadelphia and Reading Railroad, 32 Leg. 
 Int. 388, and n Phila. 483. 
 
 In Taft v. Ward, 106 Mass. 518, 524, speaking of the New York 
 statutes, it was said by Chief Justice Chapman: 
 
 "These statutes provide, in substance, that any association, con- 
 sisting of seven or more shareholders or associates, may sue and be 
 sued in the name of the president or treasurer; that in such suit a 
 judgment may be rendered against the company; and until an execu- 
 tion is issued against the company and returned unsatisfied, no action 
 shall be maintained against individuals. These statutes seem to apply 
 to all copartnerships consisting of seven or more members. The 
 members of such companies are authorized to hold their interests in 
 shares, which are assignable like shares of stock in a corporation, and 
 the action against the members is regarded as supplementary to the 
 action against the company. Waterbury v. Merchants' Union Ex- 
 press Co., 50 Barb. 157; Robbins v. Wells, i Robertson 666. 
 
 "So far as these statutes relate to the procedure in courts for the 
 recovery of debts, they are limited to the state of New York ; for 
 each state adopts its own forms of remedy. Story Confl. Laws, 
 sections 556558. The plaintiff could not in this commonwealth 
 bring an action against the president or secretary, and obtain a 
 judgment against the company by its name; nor could he bring an 
 action against the members, or any of them, as a supplement to such 
 an action. In order to do so, we must hold that the statutes of New 
 York prescribing forms of action are in force here. In this common- 
 wealth, such a company is a mere copartnership." 
 
 There is nothing inconsistent with an association being a partner- 
 ship that it has shares, or that the shares are transferable, or that the 
 death of a member shall not work a dissolution of the partnership. 
 Phillips v. Blatchford, 137 Mass. 510. See, also, Hoadley v. County 
 Comms., 105 Mass. 519; Gleason v. McKay, 134 Mass. 419. 
 
 The case mostly relied upon by the plaintiff is Liverpool Ins. Co. 
 v. Massachusetts, 10 Wall. 566, which was taken to the supreme 
 court of the United States on a writ of error from this court. See 
 Oliver v. Liverpool and London Ins. Co., 100 Mass. 531. It was a 
 bill in equity, filed by the treasurer of the commonwealth under the 
 statute of 1862, c. 224, section n, to restrain the defendant from 
 prosecuting its business until the tax assessed upon it by section 2 
 of the statute had been paid. This section provided that "each fire, 
 marine, and fire and marine insurance company incorporated or as- 
 sociated under the laws of any government or state other than one of 
 the United States," should annually pay a certain tax. The defend- 
 ant was an English company formed for the business of insurance, 
 and organized under a deed of settlement. Its property was divided 
 into transferable shares. It had power to sue and be sued by the name 
 of its chairman, and a suit did not abate by reason of the death of 
 such officer. The company could sue its own members, and be sued 
 by them. Execution on any judgment recovered against the com-
 
 174 EDWARDS V. WARREN LINOLINE, ETC., WORKS. 31 
 
 pany could be issued against any proprietor. The statute under which 
 it was formed, and subsequent statutes declared that it should not be 
 deemed to be incorporated. The company was composed in part of 
 British subjects and in part of citizens of the state of New York. 
 
 This court, after stating that it was not a pure corporation nor a 
 pure partnership, but was an association intermediate between corpo- 
 rations known to the common law and ordinary partnerships, and was 
 so far clothed with corporate powers that it might be treated, for the 
 purposes of taxation, as an artificial body, proceeded to say: "We 
 think the defendants are an association of the kind to which the statute 
 of 1862 was expressly intended to apply, as well as to bodies wholly 
 corporate in their character, and that, being permitted by the comity 
 of our laws to exercise their functions within this commonwealth, they 
 can claim no exemption from regulations appropriate to their collective 
 action on account of the citizenship or nationality of their individual 
 members." 
 
 In the supreme court of the United States the decree of this court 
 was affirmed on the ground that the company was a foreign corpora- 
 tion, but Mr. Justice Bradley, while agreeing in the result, differed 
 on the question whether the company was a corporation. He was of 
 opinion that it was one of those special partnerships called joint-stock 
 companies, and that it could not sue or be sued in this country with- 
 out legislative aid. 
 
 This view of Mr. Justice Bradley is in accord with the view of this 
 court, and we are not aware that the view taken by the supreme court 
 of the United States has been followed in this commonwealth. The 
 decisions which we have already cited show that a foreign joint-stock 
 company is considered as an association or partnership, and not as a 
 corporation. 
 
 An examination of the statutes further shows that the legislature 
 has clearly recognized the distinction between foreign corporations 
 and associations ; and that where it has deemed it best that an act 
 should apply to an association as well as to a corporation, it has said 
 so in plain language. Thus, the statute of 1882, c. 106, relating to the 
 taxation of foreign mining, quarrying, and oil companies, and requiring 
 the appointment of an agent here upon whom process may be served, 
 uses the language, "every corporation, company, or assopiation." 
 
 The statute of 1887, c. 214, in section i, provides: "When con- 
 sistent with the context, and not obviously used in a different sense, 
 the term ' company ' or ' insurance company ' as used herein includes 
 all corporations, associations, partnership, or individuals engaged as 
 principals in the business of insurance." The language is the same 
 in the statute of 1894, c. 522, section i. 
 
 By the statute of 1888, c. 429, section n, "fraternal beneficiary 
 corporations, associations, or societies," organized under the laws of 
 another state and then doing business here, were allowed to continue 
 business without incorporation under the act. But by the statute of 
 1892, c. 40, section i, this was amended by striking out the words 
 "associations or societies."
 
 3' CORPORATION AND JOINT STOCK COMPANY. I 7 5 
 
 The statute of 1884, c. 330, requires " Every corporation established 
 tinder the laws of any other state or foreign country," and hereafter 
 having a usual place of business here, before doing business, to appoint 
 in writing the commissioner of corporations, or his successor in office, 
 to be its true and lawful attorney, upon whom process might be served. 
 
 The statute of 1888, c. 321, allows "Manufacturing corporations 
 established under the laws of other states," which have complied with 
 the provisions of the statute of 1884, c. 330, to purchase and hold 
 such real estate here as may be necessary for conducting their busi- 
 ness. 
 
 By the statute of 1895, Ct 3 II: "Foreign corporations engaged in 
 the business of selling or negotiating bonds, mortgages, notes or other 
 choses in action," are made subject to the provisions of the statute 
 of 1884, c. 330. 
 
 The statute of 1896, c. 391, section i, contains a provision relating 
 to the personal liability, under certain circumstances, of "the officers 
 and members or stockholders in any corporation established under the 
 laws of any other state or foreign country." See also St. 1895, c. 157. 
 
 Many other instances of legislation might be given where the dis- 
 tinction between a corporation proper and a mere association or 
 organization is shown to be clearly in mind. 
 
 Unless the principal defendant can be considered a corporation, 
 it can not be sued here under the name -which the laivs of Pennsyl- 
 vania authorize it to use. Such laivs have no extra-territorial force 
 or effect. The trustee, therefore, -was properly discharged. 
 
 In the opinion of a majority of the court, the order discharging the 
 trustee and dismissing the action must be affirmed. 
 
 Note. Joint stock companies with transferable shares perhaps could be 
 formed at common law, or under the law merchant, without special authority. 
 (See Harrison v. Heathorn, 6 M. & G. 79; Mexican & S. A. Co., 5 Jur. N. S. 
 615, 27 Beav. 480.) But it has been said that acting as a corporation, without 
 authority, was an indictable offense at common law. (Kinder v. Taylor, 3 L. 
 J. 68; Duvergier v. Fellows, 5 Bing. 248, 5 M. & P. 403, 4 Am. & E. Enc. 185, 
 note 2.) But acting as a corporation also included the idea of a limited lia- 
 bility of members, and so far as innocent third parties were affected, this could 
 not be done without authority. By the Bubble act of 1719 (6 Geo. 1, c. 18), 
 joint stock companies were declared to be common nuisances, members were 
 subjected to penalties, and it was an offense for brokers to deal in their shares. 
 This act was repealed in 1825 (6 Geo. IV, ch. 91), though perhaps not often, if 
 ever, enforced for a long period before. In 1826, banking companies were 
 allowed to sue in the name of a certain officer, after complying with certain 
 rules, and in 1834, the crown was permitted to extend this privilege generally 
 to joint-stock companies. In 1844 (7 & 8 Viet., c. 110) all companies were 
 allowed to be incorporated, but the partnership liability was continued, but in 
 18-55, they were permitted to organize with a limited liability (18 & 19 Viet., 
 and 19 & 20 Viet., c. 47). In 1862, all former acts relating to companies were 
 consolidated into one act for the incorporation of companies, which, with some 
 modifications, is still the law in England. In the United States, most of the 
 states have provided for joint stock companies, with transferable shares, and 
 in some cases with limited liability, but the rules of partnership are applied 
 so far as possible where the statutes under which the)' are formed are silen' . 
 
 1. As to suits 1896, State v. Adams Express Co., 66 Minn. 271, 38 L. R. 
 A. 225, (Service of summons may be made on local agent of such foreign
 
 176 LEWIS V. TiLTON. 32 
 
 joint stock company)? 1889, Imperial Ref. Co. v. Wyman, 38 Fed. Rep. 574, 3 
 L. R. A. 503 (limited partnership created in Pennsylvania can not sue in 
 the United States courts, as a "citizen" of that state, citizens of other states) ; 
 1881, Fargo v. L., N. A. & C. R. Co., 6 Fed. R. 787 (is a citizen of state cre- 
 ating for purpose of suing and being sued in United States courts) ; 1876, Maltz 
 v. American Ex. Co., 1 Flip. (U. S.) 611, Fed. Cas. 9002, 3 C. L. J. 784 (is a 
 citizen of creating state for purpose of being sued in United States courts) ; 
 1875, Wescott v. Fargo, etc., Co., 61 N. Y. 542 (president of such an institu- 
 tion is a corporation sole for purpose of suits.) 
 
 2. As to failure to comply strictly with statute 1896, Staver, etc., A. 
 Mfg. Co. v. Blake, 111 Mich. 282, 38 L. R. A. 798 (technical non-compliance 
 with law does not make members liable as general partners, but see next 
 case) ; 1889, Vanhorn v. Corcoran, 127 Pa. St. 255, 4 L. R. A. 386 (failure to 
 comply makes members liable as general partners). 
 
 3. As to taxation 1885, State v. State Board of Assessors, 47 N. J. L. 36, 
 27 L. R. A. 684, 13 Am. & Eng. Corp. Cas. 403, 31 Atl. 220 (Pennsylvania 
 partnership association may be taxed in New Jersey as foreign corporation) ; 
 1892, People, etc., v. Coleman, 133 N. Y. 279, 16 L. R. A. 183, 37 Am. & Eng. 
 Corp. Cas. 1, supra, p. 15 (joint-stock companies in New York, are not cor- 
 porations for purposes of taxation) ; 1889, People, etc., v. Wemple, 117 N. Y. 
 136, 6 L. R. A. 303, 29 Am. & Eng. C. C. 610 (the United States Express 
 Company, a joint stock company, may be taxed in New York as an incorpo- 
 rated company.) 
 
 4. As to status generally 1896, Rouse, Hazard & Co. v. Detroit C. C. Co., 
 Ill Mich. 251, 38 L. R. A. 794; 1891, Allen v. Long, 80 Texas 261, 26 Am. St. 
 Rep. 735, 38 Am. & Eng. Corp. Cas. 68 (joint stock companies are governed 
 by general principles of partnership) ; 1890, Oliver's Estate, 136 Pa. St. 43, 20 
 Am. St. Rep. 894 (partnership association is an artificial person, members do 
 not own the property, and death of member does not dissolve). See also, 1890, 
 Fifth Avenue Bank v. Colgate, 120 N. Y. 381, 8 L. R. A. 712; 1889, Abbott v. 
 Hapgood, 150 Mass. 248, 5 L. R. A. 586, 22 N. E. Rep. 907 ; 1889, Tilge v. Brooks, 
 124 Pa. St. 178, 2 L. R. A. 796; 1888, Jennings' Appeal, 2 Monaghan 184 (Pa.), 
 2 L. R. A. 43. 
 
 Sec. 32. (3) From fraternity or society. 
 
 LEWIS v. TILTON ET AL. 
 
 1884. IN THE SUPREME COURT OF IOWA. 64 Iowa 220-223, 5 2 Am.. 
 
 Rep. 436. 
 
 The petition, as amended, states that the defendants and others 
 formed a benevolent society for the prevention and suppression of in- 
 temperance, known and designated as the Ottumwa Temperance Re- 
 form Club, and that they were chosen to represent such society as its 
 executive committee; that in March, 1878, the defendants entered into 
 a written contract of lease with plaintiff, by the terms of which said 
 Ottumwa Temperance Reform Club was to and did occupy the prem- 
 ises described in said lease, at the yearly rental of fifteen hundred dol- 
 lars (a copy of said lease is attached to the petition) ; that by virtue 
 of said lease the defendants, and the society of which they were mem- 
 bers, occupied said premises from March i, 1878, to July i, 1879, 
 and enjoyed all the benefits resulting from such occupancy ; that these 
 defendants verbally contracted with the Ottumwa Gas Light Company 
 to furnish said Ottumwa Temperance Reform Club the gas required
 
 32 CORPORATION AND FRATERNITY. 177 
 
 to light said opera house and rooms thereunder ; that by virtue of said 
 verbal understanding the gas company did from time to time, and as 
 required, furnish said club a large amount of gas; that said club was 
 not incorporated at the time the above contracts were made, and is 
 not now ; and that said account for gas has been assigned to plaintiff. 
 Upon the grounds above stated, the plaintiff sought to make the 
 defendants individually liable. To the petition there was a demurrer, 
 which was sustained, and the plaintiff filed an amended petition, 
 stating various acts and things done, and reaffirming all the allega- 
 tions of the petition, and thereupon asked judgment against the 
 defendants individually. To the amended petition the defendants de- 
 murred. The demurrer was sustained, and the plaintiff excepted, 
 and, electing to stand thereon, appealed. 
 
 SEEVERS, J. i. As we understand the petition, the verbal contract 
 entered into with the gas company is an original undertaking on the 
 part of the defendants. At their request the gas was furnished the 
 club, and, of course, it seems to us the defendants are bound to pay 
 for the gas so furnished. It matters not to whom it was furnished. 
 The gas company had the right to expect that the defendants would 
 pay for whatever was furnished at their request. There is no allega- 
 tion that credit was extended to the club, and the only presumption 
 which can be indulged in is that the credit was extended to the de- 
 fendants. As they contracted, they must pay. 
 
 2. The more serious question is whether the defendants are indi- 
 vidually liable under the lease, which, on its face, shows that it was 
 entered into between the plaintiff, as party of the first part, and the 
 Ottumwa Temperance Reform Club, party of the second part, and is 
 signed by the plaintiff, and by the defendants as follows : 
 
 CR. L. Tilton, 
 
 "Executive Committee of the Ottumwa j S. B. Thrall, 
 Temperance Reform Club, | David Eaton, 
 
 [Joseph Sloan." 
 
 It is insisted that the lease shows that credit was extended to the 
 club, and that the contract was made with it; that the principal was 
 named, and therefore the defendants can not be made individually 
 liable. This line of argument possibly would be conclusive if there 
 was a principal. But there is none. The club is a myth. It has 
 no legal existence, and never had. It can not sue or be sued. The 
 defendants contracted in the name of a supposed principal; that is, 
 they claimed there was a principal for whom they were acting, but 
 it now appears that there was no principal known to the law. But, 
 under the allegations of an amended petition, it should be assumed, 
 we think, that there was, as a matter of fact, a body of men associated 
 together for a benevolent purpose, who had assumed the name above 
 stated, for the avowed purpose, by their united efforts, of suppressing 
 intemperance. There is, however, some doubt in our minds whether 
 it can be said that the plaintiff extended credit to an organization that 
 had no legal existence. As the law does not recognize such an organ- 
 12 WIL. CASES.
 
 178 BELTON V. HATCH. 33 
 
 ization, we are at a loss to know how or why it can be said as a mat- 
 ter of law that the plaintiff contracted with and extended credit to a 
 mere myth. In legal parlance, the organization can not be named. 
 It has no habitation or place of abode. 
 
 It is also insisted that a fund was provided for the payment of debts, 
 and hence it must be presumed that the plaintiff contracted in reliance 
 upon such fund, and therefore the defendants can not be made indi- 
 vidually liable. What the fact may be we are not advised, but cer- 
 tainly this does not appear on the face of the petition, and we have 
 looked into the lease, and there is no provision in it from which such 
 an inference can be drawn. 
 
 It is also insisted that there is no known legal -principle or rule un- 
 der -which the defendants can be made liable. It is said that they are 
 not parties. This is true; that is to say, these defendants could not 
 bind any other members of the organization as a partner in a joint 
 enterprise, or a contract as to -which he had no knowledge, and to 
 which he did not assent. But we think "those who engaged in the 
 enterprise (that is, became members of the organization) are liable 
 for the debts. They contracted, and all are included in such liability 
 who assented to the undertaking or subsequently ratified it." It was 
 so held in Ash v. Guie, 97 Pa. St. 493; Fredendall v. Taylor et al., 
 26 Wis. 286; and this rule is supported to some extent by what was 
 said by this court in Keller v. Tracy, 1 1 Iowa 530, and Drake v. The 
 Board of Trustees, n Iowa 54. 
 
 But, it is said, these defendants did not contract. They certainly 
 represented that they had a principal for whom they had authority to 
 contract. They, for or on behalf of an alleged principal, contracted 
 that such principal would do and perform certain things. As we have 
 said, there is no principal, and it seems to us that the defendants should 
 be held liable, and that it is immaterial whether they be so held be- 
 cause they held themselves out as agents for a principal that had no 
 existence, or on the ground that they must, under the contract, be re- 
 garded as principals, for the simple reason that there is no other 
 principal in existence. We think the demurrer should have been 
 overruled. 
 
 Reversed. 
 
 Note. See cases cited under White v. Brownell, infra, p. 187. 
 
 Sec. 33. (4) From stock exchange. 
 
 BELTON v. HATCH. 
 
 1888. IN THE COURT OF APPEALS OF NEW YORK. 109 New York 
 593-594. 4 Am. St. R. 495. 
 
 Appeal from judgment of the general term of the supreme court in 
 the first judicial department, entered upon an order made May 29, 
 1885, which affirmed a judgment in favor of defendant, entered upon 
 an order overruling a demurrer to certain portions of the answer.
 
 33 CORPORATION AND STOCK EXCHANGE. 
 
 GRAY, J. Plaintiff, as the assignee of one Des Marets, formerly a 
 member of the New York Stock Exchange, sues to recover the pro- 
 ceeds received by that organization from a sale of the membership, 
 or, as it is sometimes technically termed, the seat of said Des Marets. 
 It is alleged by plaintiff in his complaint that Des Marets, for many 
 years a member of the New York Stock Exchange, in October, 1883, 
 became insolvent, and, under the laws governing that body, was sus- 
 pended ; that subsequently its governing committee determined that 
 the failure was caused by doing business in a reckless and unbusiness- 
 like manner, and resolved that Des Marets was ineligible for re- 
 admission, and in December following the failure the stock exchange, 
 pursuant to its constitution and by-laws, disposed of his membership 
 and seat for the sum of $25,000, which sum it retained and refused 
 to pay over to plaintiff, who demanded It as Des Marets' assignee. 
 The complaint also alleges 'rhat che New York Stock Exchange is an 
 unincorporated association, organized and located in New York city ; 
 that its members have voluntarily established certain rules, conditions 
 and articles of association or copartnership, which are designated as 
 their constitution and by-laws, which are signed and consented to by 
 the members and which govern them, their officers and committees, 
 and which control in the conduct of the transactions and concerns of 
 the association and are binding and obligatory upo,n the members. 
 
 The answer of the defendant, after admitting the allegations of the 
 complaint which I have mentioned, sets forth much of the constitu- 
 tion and by-laws of the exchange, and alleges the distribution of the 
 proceeds of the sale of Des Marets' membership to have been made 
 among his creditors in the exchange, pursuant to their provisions. 
 The plaintiff demurred to this portion of the answer on the ground 
 that it was insufficient in law upon its face. Although this matter 
 was not stated as a separate defense, totidem verbis, yet as it was 
 affirmative in its nature and constituted the defense and justification of 
 the association in disposing of Des Marets' membership and in retain- 
 ing the proceeds arising from such disposition, we shall not consider 
 the demurrer as improperly interposed and will dispose of the ques- 
 tions raised by these pleadings. 
 
 Their decision involves the legal relations to each other of the mem- 
 bers composing the association of the New York Stock Exchange, and 
 the extent and validity of the powers reserved by its constitution and 
 by-laws, and conferred upon its officers and committees in the man- 
 agement of its affairs and in the control over a member. The New 
 York Stock Exchange is a voluntary association of individuals, 
 united, without a charter, in* an organization for the purpose of afford- 
 ing to the members thereof certain facilities for the transaction of their 
 business as brokers in stocks and securities, and a convenient exchange 
 or sales-room for the conduct of such transactions. It can not be 
 said to be strictly a copartnership, for its objects do not come within 
 the definition of one. A copartnership results from a contract be- 
 tween the parties by -which they agree to combine their propertv or 
 labor, or both, in some common enterprise and for a common profit,
 
 ISO BELTON V. HATCH. 33 
 
 to be shared in the proportion stated in their agreement, 7^he objects 
 of a voluntary association of brokers do not, ho-wever, involve any suck 
 combination, or any communion of profits from the business trans- 
 acted by the members. Like a business club, its principal object is the 
 promotion of the convenience of its members by furnishing facilities 
 which aid them in doing their business, and are, therefore, of benefit 
 to them. It may be said, however, that the rights of the associates 
 are not substantially different from those of partners, so far as their 
 rights in the property of the association are concerned. The interest 
 of each member in the property of the association is equal, but it is 
 subject to the constitution and by-laws, which are the basis on which 
 is founded the association. They express the contract by which each 
 member has consented to be bound, and which measures his duties, 
 rights and privileges as such. 
 
 It seems most clear to me that this constitution and the by-laws de- 
 rive a binding force from the fact that they are signed by all the mem- 
 bers, and that they are conclusive upon each of them in respect of the 
 regulations of the mode of transaction of his business, and of his 
 right to continue to be a member. Whatever are the rights acquired 
 by a member and created by his admission to membership, the rules 
 by which the membership is created or dissolved, and which control 
 the affairs of the organization and the relations of members, entered 
 into those rights when created and remained a part of them. In this 
 proposition there is nothing against public policy, for the reason that 
 whatever a member acquires is subject to the self-imposed condition 
 that his title and the rights which accrue from his membership are 
 regulated by, and are dependent upon, the laws adopted by the asso- 
 ciation, and expressly consented to by him when he joined. When 
 Des Marets, plaintiff's assignor, joined the exchange, it may be per- 
 fectly true that he acquired property ; but it was property given by 
 the act of those who, in giving it, accompanied the gift with conditions 
 which were incident to and a part of the property ; and it was in no 
 sense property created by the individual's act. I consider that there 
 is an obvious 'distinction between property of the individual's own 
 creation, to which he attaches conditions, or in the disposal of which 
 he exerts a direction, whereby the claims of others are affected, and 
 property which comes to him subject to conditions which may deprive 
 him of its use or enjoyment. And so here, if the constitution, which 
 forms the basis of this association, appropriates to his creditors in the 
 association, or to any of its corporate objects, the peculiar property of 
 the member, who, by force of constitutional provisions, has lost his 
 membership, that was an incident entering into his title to it. When 
 membership and the rights belonging to that status 'were conferred 
 upon him, the gift was accompanied by a condition that the rights, of 
 'whatever nature, should revert to the association upon the happening 
 of certain events, and he can not be heard to complain; nor can third 
 persons, claiming to derive under him. He should be held to his 
 contract, which was reasonable, and when entered into prejudiced no 
 rights of others, nor conflicted with any statutory or common-law
 
 < 33 BELTON V. HATCH. l8l 
 
 right. A person acquires by his admission to membership only such 
 rights as the constitution and by-laws of the association give him; 
 and upon ceasing to be a member, by the competent judgment of the 
 governing committee, he ceases to have any further concern or interest 
 in the association, except it is given by its laws. 
 
 The New York Stock Exchange, by the accumulation of a great fund 
 from a large membership, by the wise and successful management of 
 the members, and by the acquisition of valuable facilities for the 
 transaction of business, has given to membership an important pecun- 
 iary value. It is fair to presume that this prosperity and success were, 
 in an important degree, due to the regulations adopted looking to the 
 conduct by a member of his business, and the restraints imposed upon 
 reckless or dishonest methods. Membership may be property ; but it 
 is not property in every sense. If it is property, it is incumbered 
 with conditions when purchased, without which it could not be 
 obtained. (Hyde v. Woods, 94 U. S. 523.) 
 
 By the constitution of this association, the powers of government 
 are vested in a governing committee, whose decision, after the trial 
 of a member for offenses under its laws, is final. Standing committees 
 are appointed by them, and the committee on insolvencies is charged 
 with the duty of immediately investigating every case of insolvency 
 and of reporting whether the same was occasioned by reckless dealing 
 or by doing business for improper parties. Should the governing 
 committee, upon this report, determine that a member's failure was 
 caused by doing business in a reckless and unbusinesslike manner, 
 he may be declared ineligible for readmission by a majority vote of 
 the entire governing committee. By section 2 of article 13 of the 
 constitution, it is provided that "in every case where a member is 
 deprived of his membership, or declared ineligible for readmission by 
 the governing committee by reason of any offense against or under 
 the laws of the exchange, his membership may be disposed of forth- 
 with by the committee on admissions." 
 
 The plaintiff, appellant, contends that in such a case as this of Des 
 Marets' severance from membership, there was no power under the 
 constitution to distribute the proceeds arising from the sale of his 
 membership, and that, in the absence of some express reservation of 
 the right to dispose of those proceeds, they are the property of the 
 member. The vice in plaintiff's argument is in the assumption that 
 a member has any absolute property of his own in such a case. As 
 we have before seen, the rules of the association were an incident to 
 the rights acquired by a person upon admission ; and one- of those 
 rules was that for conviction of an offense against or under the laws 
 of the exchange, a suspended member might be deprived of right to 
 readmission to membership. When expelled he ceases to have any 
 interest in the association. His privilege to transact his business at 
 that place has been lost. The association may fill the vacancy caused 
 by his expulsion, or not, as they please. They can not be compelled 
 to do so; but if they elect to admit a new member, and can derive, 
 from so doing, any profit, that is their unquestionable right, with the
 
 I'82 SKILLMAN V. LACHMAN. 34 
 
 exercise of which others are not concerned. They may do with their 
 own as they like. As I construe section 2 of article 13, above cited, 
 its effect is that of an express reservation of the right to deprive a 
 member, found guilty of an offense under its provisions, of all rights, 
 interest and claim whatever. 
 
 The right is given to a member in good standing to propose for ad- 
 mission in his stead some one acceptable to the committee on admis- 
 sions, and any profit he derives from his negotiations with the candi- 
 date is his. So if a member becomes honestly insolvent and fails to 
 qualify under the rules for readmission, or if he dies, after the claims 
 of the association are discharged, the proceeds may be paid to him or 
 his legal representatives, as the case may be. But in the case of a 
 member who, by misconduct cognizable by the laws of the association, 
 forfeits his right to continue to remain a member, there is reserved 
 by the constitution the right to dispose of his membership. These 
 rules are reasonable, and do not contravene any rule of public policy, 
 and having been consented to by the plaintiff's assignor, deprived him 
 of any interest or rights in the association, of which he had ceased to 
 be a member. These views lead to an affirmance of the judgment 
 appealed from. 
 
 All concur. 
 
 Judgment affirmed. 
 
 Note. See Board of Trade of Chicago v. Nelson, 162 111. 431, 53 Am. St. 312 ; 
 American Live Stock Co. v. Chicago Live Stock Exchange, 143 111. 210, 32 N. 
 E. Rep. 274; Green v. Board, etc., 174 111. 585, 51 N. E. Rep. 599 (and see 
 Evans v. Phil. Club, infra, p. 1165, and note). 
 
 Sec. 34. (5) From cost book mining companies. 
 SKILLMAN v. LACHMAN ET 
 
 1863. IN THE SUPREME COURT OF CALIFORNIA. 23 California 
 
 198-208. 
 
 Appeal from the county court, Nevada county. 
 The facts are stated in 'the opinion of the court. 
 
 CROCKER, J., delivered the opinion of the court NORTON, J., con- 
 curring, and COPE, C. J., concurring specially. 
 
 This is an action upon a promissory note for $102, with interest at 
 3 per cent, per month, against the defendants, as members of the 
 "Gold Hill Company," originally brought before a justice of the 
 peace, where a judgment was rendered against the defendants, from 
 which they appealed to the county court, where judgment was again 
 rendered against them for $260.46 cents, besides costs, that sum being 
 the principal and interest of the note, and from which they appeal to 
 this court. * * * 
 
 1 Arguments and opinion of the court on question of jurisdiction omitted.
 
 34 CORPORATION AND COST BOOK COMPANY. 183 
 
 The principal point raised by the appellant is that the owners of the 
 claim are tenants in common and not partners ; that Sprout was one 
 of the owners, and that one co-tenant can not bind his co-tenants by 
 a note given in the name of the company. This question of the re- 
 lation which exists between persons owning several interests in a mine, 
 and engaged in working the same, is a very important one. What" 
 ever may be the rights and liabilities of tenants in common of a mine 
 not being worked, it is clear that where the several owners unite and 
 co-operate in working the mine, then a new relation exists between 
 them, and, to a certain extent, they are governed by the rules relating 
 to partnerships. They form what is termed a mining partnership, 
 which is governed by many of the rules relating to ordinary partnerships, 
 but which has also some rules peculiar to itself one of which is that 
 one person may convey his interest in the mine and business, without 
 dissolving the partnership. (Ferreday v. Wightwick, i Russ. & Mylne 
 49.) Still, there may be a partnership in the working of the mine, 
 subject to the rules relating to an ordinary partnership in trade. (Story 
 on Part., 82.) And this relation of partnership may be constituted 
 either by express stipulation or by implication deduced from the acts 
 of the parties. (Rockw. on Mines, 575.) But in the case of an ordi- 
 nary mining partnership, something more will be required to raise the 
 presumption of liability arising from persons holding themselves out 
 to the world as partners than would be necessary in the case of an or- 
 dinary partnership. Such persons, in the absence of other circum- 
 stances, can not fairly be presumed to have intended to render them- 
 selves liable to all consequences of a commercial partnership. (Rockw. 
 on Mines, 575.) The same author concludes his examination of this 
 question as follows: "If the works are carried on by persons as mere 
 owners of land, concurring in a general system of management for 
 their common benefit, the shares of each person will only be liable for 
 his individual engagement, and to the payment of debts contracted by 
 himself, or his authorized agent, without interfering with the shares 
 of the other tenants in common." (Rockw. on Mines, 579.) 
 
 There have been several decisions relative to the rights and liabilities 
 of shareholders in mining companies to the public and among them- 
 selves, which it may be well to examine. In the case of Vice v. Lady 
 Anson (7 B. & C. 409), which was an action for goods sold and 
 materials furnished for working a mine, in which the defendant held 
 one share, evidenced only by a certificate issued by the secretary of 
 the company, the plaintiff, at the time he furnished the goods, had no 
 knowledge that she was a shareholder. She had paid the deposit on 
 some shares, and had spoken and written of herself (in private letters) 
 as a shareholder of the company. The judge held that the plaintiff 
 did not actually give credit to the defendant, and was not misled by 
 her, and that she never held herself out to the world as a partner, and 
 therefore she could only be chargeable on the ground of being really 
 interested. The fact that she thought she had an interest did not 
 make her interested; and he held that the certificate conveyed no 
 interest in the mine, and therefore she was not liable. The correct-
 
 184 SKILLMAN V. LACHMAN. 34 
 
 ness of this decision, that it was necessary to prove a conveyance of 
 an interest in the mine, has been doubted. 
 
 The case of Dickinson v. Valpy (10 B. & C. 128) was an action 
 by an indorsee of a bill of exchange, drawn and accepted by a mining 
 company, against the defendant as a member of the company. The 
 defendant had applied for and obtained shares in the company, on 
 which he had paid several installments. The business of the company 
 was transacted by a board of directors, and the bill had been drawn 
 and accepted in pursuance of a resolution passed by them. It was 
 held necessary for the plaintiff to show that the directors had power 
 to bind the shareholders by drawing bills of exchange ; and for that 
 purpose, evidence should have been given of the nature and character 
 of the business of the company, to show that in order to carry into 
 effect the purposes for which it was instituted the drawing and accept- 
 ing of bills was necessary, or to show from the practice of similar 
 companies that it was usual to draw such bills. It -was also held, 
 that although in ordinary trading partnerships the law implied that 
 one partuer had power to bind another by drawing and accepting 
 bills, yet that rule did not apply to mining partnerships, without 
 showing that it was necessary to carry on its business. 
 
 In Judson v. Bourne (6 M. & W. 461), it was held that the mem- 
 bers of a mining company have authority by law (in the absence of 
 any proof of a more limited authority) to bind each other by dealings 
 on credit for the purpose of working the mines, if that appears to be 
 necessary or usual in the management of the mines. In Hawtayne v. 
 Bourne (7 M. & W. 595), the managing agent of the mining company 
 had borrowed money from a bank to pay debts due to laborers who 
 had levied distress warrants upon the materials of the mine, and it 
 was held that there was no rule of law that such an agent could, even 
 in case of an emergency suddenly arising, raise money and pledge the 
 credit of his principals for its repayment; that the authority of the 
 agent was only that he should conduct and carry on the affairs of the 
 mine in the* usual manner, and there was no proof of express authority 
 to borrow money, or that it was necessary in the ordinary course of the 
 undertaking. 
 
 A joint-stock company was formed to work a mine, in which the 
 defendant became a shareholder and took part in its proceedings. The 
 prospectus, issued on the formation of the company, stated that all 
 supplies for the mine were to be purchased at cash prices, and no debt 
 was to be incurred, and the scrip certificates also bore an indorsement 
 to the same effect. The plaintiff supplied goods for the necessary 
 working of the mine on the order of a resident agent appointed by the 
 directors to manage the mine, which was the customary course in such 
 concerns. Held, that the defendant was liable to the plaintiff for the 
 price of such goods, notwithstanding the statements in the prospectus 
 and certificates, unless it were shown that the agent had, in fact, no 
 authority from the defendant, and that the plaintiff had notice thereof. 
 (Hawkin v. Bourne, 8 M. & W. 703.) 
 
 Where a defendant is charged with a debt in an action for work and
 
 34 CORPORATION AND COST BOOK COMPANY. 185 
 
 labor as a partner in a mining company, but is not shown to have 
 either contracted such debt personally or represented himself to the 
 plaintiff as a partner, the fact of his having been partner may never- 
 theless be shown by evidence short of strict proof that he had executed 
 a deed of copartnership, or was legally interested in the mine. The 
 fact may be proved by his admission made before or after the debt 
 was incurred. (Ralph v. Harvey, i Q. 6.845.) One of several co- 
 adventurers in a mine has not, as such, any authority to pledge the 
 credit of the general body for the money borrowed for the purposes 
 of the concern. And the fact of his having the general management 
 of the mine makes no difference, in the absence of circumstances from 
 which an implied authority for that purpose can be inferred. (Ricketts 
 v. Burnett, 4 Q. B. 686.) 
 
 Such is the uncertainty of mining operations that few are willing 
 to risk all their means in such undertakings ; and it is therefore cus- 
 tomary for a number of persons to unite in the enterprise ; and often 
 the interests owned by each differ greatly in amount, according as 
 each is able to furnish means, or is willing to take the risk. As a 
 general rule, it is impracticable for each proprietor to 'work his in- 
 terest in the mine separate from the others, hence arises the necessity 
 for an organization of some kind to work the mines, such as a corpo- 
 ration, joint stock company, or mining partnership. The company in 
 the present case is one of the latter class. As each owner has a right 
 to sell and convey his interest at any time, and as in ordinary part- 
 nerships such sale would dissolve the partnership, and compel a 
 winding up and settlement of the business, which would be most dis- 
 astrous to the mining enterprise, it has become an established princi- 
 ple that such sale does not dissolve a mining partnership, but it con- 
 tinues on as before. Such a radical change in the law of partner- 
 ship necessitates other changes. One result is, that new members 
 are thus introduced into the company without the consent, and often 
 against the wishes, of the other members; and it would be most unjust 
 to subject each proprietor to personal liabilities, which might sweep 
 away all his property, created against his consent, by those who be- 
 came members against his wishes. Hence arises the necessity of 
 establishing new rules for such partnerships, differing from those 
 regulating ordinary partnerships, especially those relating to the 
 power of any one member, or a majority of the members, or of the 
 superintendent or managing agent, to make contracts binding upon 
 the company or its members, and also regulating the extent and na- 
 ture of the liability of each proprietor for the company debts, as be- 
 tween themselves and third persons. The rules regulating ordinary 
 partnerships, will, to some extent, form a proper guide, but do not 
 necessarily determine these questions. It is impossible to lay down a 
 perfect code of rules upon this subject; but, like other legal rules, 
 they must be settled as they arise in cases requiring their determina- 
 tion. Such rules must be governed by the peculiar condition and 
 circumstances of the country, and must be founded upon sound prin- 
 ciples of justice, and such as will protect the rights of individual pro-
 
 1 86 SKILLMAN V. LACHMAN. 34 
 
 prietors against the unauthorized acts of others, and at the same time 
 properly secure the claims of creditors and insure the successful work- 
 ing of the mine. 
 
 In the present case it appears that the defendant Lachman, for a 
 long time prior and up to June 25, 1858, held a mortgage on the in- 
 terest in the mine of one Prior ; that on that day he took a conveyance 
 of that interest in satisfaction of the mortgage, and conveyed the same 
 interest to one of the defendants, Sprout, on the twenty-eighth day of 
 June, and received a mortgage on Sprout's interest in the mine to se- 
 cure payment of the purchase-money. This appears to be, in fact, all 
 the interest he had ; but it was proved that both prior to and after the 
 date of the note, which was dated June 20, he admitted to two per- 
 sons, one of whom was a brother of the plaintiff, and who delivered 
 most of the lumber, that he owned an interest in the mine. It does 
 not appear that any of these statements of Lachman were the means 
 of inducing the plaintiff to sell or deliver the lumber. These state- 
 rnents of the defendant Lachman do not operate as an estoppel upon 
 him, unless it appears that the plaintiff was induced thereby to sell and 
 deliver the lumber to the company. Neither the evidence nor the 
 findings of the court contain any facts or evidence establishing this 
 point. 
 
 But there is still a more important objection to the findings and 
 judgment in this case. There was no evidence of any authority hav- 
 ing been given by the company, or Lachman, to Sprout, a member of 
 the company and the managing agent, or foreman, to execute a prom- 
 issory note in the name of and binding the company for the indebted- 
 ness due the plaintiff, or any general authority to that effect. In fact, 
 several members, including Lachman, testified that they never gave 
 him any such authority. It is clear that the law does not, in the case 
 of mining partnerships, imply any such authority either to a member 
 of such partnership or to its managing agent. In this respect the rule 
 of law is different from that of ordinary commercial partnerships. It 
 was clearly the duty of the plaintiff to prove that the person executing 
 the note in the name of the company had power and authority to do 
 so. He might have had power to purchase the lumber for the use of 
 the mine, but that is very different from authorizing him to execute a 
 note in the name of the company, bearing interest at the rate of 3 per 
 cent, per month. In this case the county court failed to draw the 
 proper distinction between the liability of members of a mining part- 
 nership and ordinary trading partnerships, and in this it erred. 
 
 The judgment is, therefore, reversed and the cause remanded. 
 
 COPE, C. J. I think the conclusion arrived a<: i j Justice Crocker 
 is correct, and I, therefore, concur in the judgment. 
 
 Note. 1884, Bissell v. Foss, 114 TJ. S. 252 on 261; 1880, Kahn v. Smelting 
 Co.. 102 U. S. 641 ; 1871, Jones v. Clark, 42 Cal. 180
 
 35 CORPORATION AND UNINCORPORATED ASSOCIATION. 187 
 
 Sec. 35. (6) From unincorporated associations. 
 
 WHITE v. BROWNELL, PRESIDENT, ETC., ET AL. 
 
 1868. IN THE COURT OF COMMON PLEAS, City and County of New 
 York. General Term. 2 Daly (New York Common Pleas) 
 
 329-366. 
 
 Appeal to general term from an order dissolving an injunction to 
 restrain the Open Board of Brokers from interfering with plaintiff's 
 privileges as a member of that board. 
 
 By the court, DALY, F. J. The organization known as the Open 
 Board of Stock Brokers, which the plaintiff asks this court to restrain 
 from depriving him of his rights and privileges as a member of it, is 
 not a partnership, and the plaintiff is not entitled, as has been argued, 
 to the equitable remedies which courts afford for the protection of the 
 rights of a copartner. It is not a union ef persons joining together 
 property, labor or skill for their common benefit, in any pursuit or 
 business having a communion of profit and loss, and distinguishable 
 by the feature that, if earned, there is to be a division of gains. It 
 may be described as an association of persons engaged in the same 
 kind of business, who have organized together for the purpose of es- 
 tablishing certain rules, by which each agrees to be governed in the 
 conduct and management -of his separate transactions or business; 
 which is not a partnership. 
 
 The objects of the organization are set forth in the articles of asso- 
 ciation, which declare that greater facilities are requisite for the ex- 
 change and negotiation of commercial securities, a business which can 
 be successfully transacted only where there is the utmost confidence ; 
 that, as such confidence is begotten only by public, open, fair and up- 
 right transactions, so that each party interested can know not only 
 where, but how such business is done, the spirit of the age demands 
 for such transactions a great public mart, open to all ; and that, for 
 the purpose of supplying these requirements, the persons signing their 
 names associate themselves together, and adopt a constitution for an 
 association to be known as the Open Board of Stock Brokers, each 
 pledging himself to abide by the constitution, and by all by-laws, 
 rules and resolutions which may be passed by the board. To carry 
 out this object, the constitution provides that there shall be a room 
 where the members of the board shall have seats and desks, conveni- 
 ently inclosed within a railing, and that outside the railing, and in a 
 gallery, seats shall be provided for the public ; certain officers are 
 designated who are to call stocks at the board, and a standing com- 
 mittee to arrange the order in which such securities are called. A 
 record is to be kept by the secretary of all sales and purchases made 
 
 1 Statement of facts except as given in opinion omitted. Arguments omitted 
 and only a part of the opinion given.
 
 1 88 WHITE V. BROWNELL. 35 
 
 at the board. He is required to prepare an account of the same for 
 the newspapers, and no fictitious sales are to be allowed. It is, in fact, 
 the creation of a public mart for the sale of stocks or other commercial 
 securities, each purchase or sale of which is not for the joint benefit of 
 the body, but is, as it would be in any other place, an individual trans- 
 action between the parties making it. It is analogous to what, in 
 other branches of commerce, has long been familiarly known by the 
 word "change," a fixed place, where merchants meet at certain hours 
 for the transaction of business with each other, subject to such general 
 rules or understanding as they think proper to be governed by. There 
 may be property belonging to this body, derived from the payment of 
 dues or fines, or consisting of the furniture of the room where the 
 board meets; but the possession of it is a mere incident, and not the 
 main purpose or object of the association. A member has no sev- 
 erable proprietary interest in it, or a right to any proportionable part 
 of it upon withdrawing. He has merely the enjoyment and use of it 
 while he is a member, but the property remains with and belongs to 
 the body while it continues to exist, like a pew, the ultimate and dom- 
 inant property in which is in the congregation, and not in the pew- 
 holder; and when the body ceases to exist, those who may then be 
 members become entitled to their proportionate share of its assets. 
 (In re The St. James Club, 13 Eng. Law and Eq. Rep. 592 ; Fassett 
 v. The First Parish in Boylston, 19 Pick. 361.) This board of stock 
 brokers is, in fact, analogous to the organization which came under 
 consideration in Caldicott v. Griffith (8 Exchq. Rep. 898), called The 
 Midland Counties Guardian Society for the Protection of Trade, 
 which was decided not to be a partnership. 
 
 So far, therefore, as the plaintiff claims the equitable interference 
 of this court upon the assumption that this association is a co-partner- 
 ship, or upon the ground that the rules which regulate the action of 
 courts of equity in cases of partnership are to be applied to it, the 
 claim can not be supported. 
 
 It is not an incorporated body, and as a number of cases have been 
 cited upon the argument in which courts of equity have interfered and 
 restored a member of a corporation who had been expelled or ob- 
 structed in the exercise of his franchise by the acts of the corporation, 
 which are relied upon by the plaintiff as authorities applicable to the 
 present case, it will be necessary to inquire into the reasons why cor- 
 porations can not expel members except in certain extreme cases, and 
 to show that these reasons do not apply to a voluntary unincorporated 
 body, which comes into existence by the mutual agreement of the per- 
 sons forming it, and is thereafter carried on under rules which the body 
 adopts for 'its government. A member of a corporation, -whether it 
 be municipal, eleemosynary or private, is in the enjoyment of a fran- 
 chise, the right to -which is not derived from the body, but is created 
 by statute, or exists by prescription, and therefore can not be taken 
 away by the act of the corporation, except, as I have said, in certain 
 extreme cases. As it is a right conferred by statute, or derived from 
 immemorial custom, -which implies the existence of a grant, it can
 
 35 CORPORATION AND UNINCORPORATED ASSOCIATION. 189 
 
 neither be taken away by the act of the corporation or "withheld by the 
 act of the corporation, from any one eligible to the enjoyment of it. 
 Thus, in The People v. The Medical Society of the County of Erie 
 (32 N. Y. R. 187), an incorporated medical society was compelled 
 by mandamus to admit a licensed physician to membership, who was 
 excluded under a by-law which had been adopted by the corporation. 
 
 In a corporation, there is a distinction between what is called amo- 
 tion, or the right to remove an officer, which is a power inherent in 
 every corporation, and disfranchiscment. The former may be exer- 
 cised without interfering with the franchise, as the officer, when re- 
 moved, still continues a member; but disfranchisement is an absolute 
 expulsion of the member from the body, and the taking away of his 
 franchise, which can not be done unless the power is given by the 
 charter creating the corporation, or the member has been guilty of 
 crime, a conviction of which would work a forfeiture of all civil rights, 
 including the corporate franchise, or has committed acts which tend to 
 the destruction of the corporation, such as the defacing of its charter, 
 the obliteration or alteration of its records, or other acts tending to im- 
 pair or destroy its title to its rights or privileges; in which case, the 
 expulsion of the member is but the exercise of a power incident to the 
 right of self-preservation. Evans v. The Philadelphia Club, 50 Pa. 
 St. R. 107 j 1 Bagg's Case, n Coke R. 93; Earle's Case, Carthew's 
 R. 173; Commonwealth v. St. Patrick's Benevolent Society, 2 Bin- 
 ney R. 441 ; Fuller v. The Trustees of Plainfield Academy, 6 Conn. 
 532 ; People v. The Medical Society of Erie, 24 Barb. 570; Willcock 
 on Municipal Corporations, 270; Grant on Corporations, pp. 263, 
 264, 265, 266). 
 
 But in an unincorporated voluntary association, like the one now 
 under consideration, the privilege of membership is not given by 
 statute or derived through prescription, as in a corporation, but is 
 created by and conferred by the organization itself. It is not a 
 franchise a franchise being a particular privilege vested in in- 
 dividuals, which is conferred by grant from a sovereign or gov- 
 ernment (Finch's Law, 164; 3 Kent's Com., 458) ; -while on the con- 
 trary, the privilege of membership in a voluntary association is de- 
 rived exclusively from the body that bestows it, and may be conferred 
 or withheld at its pleasure. The law can not compel such an organ- 
 ization to admit an individual to membership,' as may be done in the 
 case of a corporation, nor can it interfere to restore a member who 
 has been deprived of the privilege for not complying with the condi- 
 tions upon which the enjoyment of it was made to depend. A mem- 
 ber of a body of this description has, as such, undoubtedly, rights which 
 the law will protect, but they do not rest upon the same ground, and 
 are by no means coextensive with the franchise enjoyed by a mem- 
 ber of a corporation. They depend upon the nature of the organiza- 
 tion, upon the object for which it was formed, and upon the rules, 
 regulations, constitution or by-laws which are explanatory of its pur- 
 pose, and which the body has adopted for its government. 
 
 1 Infra, p. 1165.
 
 190 WHITE V. BROWNELL. 35 
 
 Individuals who form themselves together into a voluntary associa- 
 tion for a common object may agree to be governed by such rules as 
 they think proper to adopt, if there is nothing in them in conflict with 
 the law of the land ; and those who become members of the body are 
 presumed to know them, to have assented to them, and they are bound 
 by them (Innes v. Wylie, i Car. & Kir. R. 262 ; Brancker v. Roberts, 
 7 Jur. N. S. 1185; Hopkinson v. The Marquis of Exeter, London 
 Times, Dec. 3ist, 1867, Law R., 5 Eq. Ca. 63). 
 
 Such an organization may prescribe the conditions upon which per- 
 sons will be admitted to membership, as well as the conditions upon 
 which the continuance of membership will depend ; and where they 
 have no regulation upon the subject, they may expel a member by a 
 vote of the majority, if he has been notified of the charge against him, 
 and afforded an opportunity of being heard in his defense (Innes v. 
 Wylie, i Car. & Kir. R. 262). Voluntary bodies of this kind will be 
 held to the fair and honest administration of the rules which are in 
 force when any proceeding is instituted against a member ; but where 
 a member is expelled in conformity with the rules, and the proceed- 
 ings are regular and in good faith, it is final, and no judicial tribu- 
 nal can interfere. (The Commonwealth v. The Pike Beneficial So- 
 ciety, 8 Watts & Serg. 250). The only question, therefore, that can 
 arise in the present case is whether the plaintiff was suspended from 
 the privileges of a member of this Open Board of Stock Brokers in 
 accordance with the constitution and by-laws which that body has 
 adopted for its government; for if he was, he has no ground of com- 
 plaint. 
 
 [The court held that plaintiff was expelled in accordance with the 
 by-laws, and so affirmed the decree dissolving the injunction.] 
 
 Note. 1887, Davison v. Holden, 55 Conn. 103, 10 Atl. Rep. 515; 1881, Ash 
 v. Guie, 97 Pa. St. 493, 39 Am. Rep. 818; 1855, Pipe v. Bateman, 1 Iowa (1 
 Clarke) 369 ; 1893, Burt v. Oneida Community, 137 N. Y. 346, 33 N. E. Rep. 
 307, 19 L. R. A. 297; 1893, McDowell v. Joice, 149 111. 124; 1888, Liggett v. 
 Ladd, 17 Ore. 89, 21 Pac. Rep. 133; 1891, Crawford v. Gross, 140 Pa. St. 297, 
 21 Atl. Rep. 356; 1891, Wicks v. Monihan, 130 N. Y. 232, 14 L. R. A. 243, 29 
 N. E. Rep. 139; 1889, Lawler v. Murphy. 58 Conn. 294, 8 L. R. A. 113, 20 Atl. 
 Rep. 457; 1896, Cheney v. Goodwin, 88 Maine 563, 34 Atl. Rep. 420; 1895, 
 Society of Shakers v. Watson, 68 Fed. Rep. 730, 15 C. C. A. 632, 37 U. S. App. 
 141 ; 1893, Grand Rapids Guard v. Bulkley, 97 Mich. 610, 57 N. W. Rep. 188; 
 1883, Ray v. Powers, 134 Mass. 22; 1883, Burt v. Lathrop, 52 Mich. 106; 1883, 
 Heath v. Goslin, 80 Mo. 310, 50 Am. Rep. 505 ; 1843, Eichbaum v. Irons, 6 
 Watts & S. (Pa.) 67, 40 Am. Dec. 540; 1841, Todd v. Emly, 7 M. & W. 427, e. 
 ".. 8 M. & W. 505.
 
 36 CORPORATION AND STATE INSTITUTIONS. 19 1 
 
 Sec. 36. (7) From state institutions. 
 
 NEIL v. THE BOARD OF TRUSTEES OF THE 0. A. & M. COLLEGE. 1 
 
 1876. IN THE SUPREME COURT OF OHIO. 31 Ohio State, 15-23. 
 
 Motion for leave to file a petition in error to reverse the judgment 
 of the district court of Franklin county. 
 
 [Action in lower court by the college board of trustees to collect 
 subscription made by Rudisill and others and guaranteed by N.eil, to 
 contribute to a fund to be raised in order to secure the location of 
 the college in Franklin county, the sums subscribed to be paid to the 
 treasurer of the college at the times indicated. The college was lo- 
 cated in Franklin county, as proposed, and the board sued for the 
 sums so subscribed. Neil demurred to the petition on the ground 
 (among others) that the board of trustees had not the legal capacity 
 to sue.] 
 
 BOYNTON, J. * * * It is claimed by the plaintiff that the board of 
 trustees of the college has not legal capacity to sue, and, therefore, that 
 the judgment was improperly rendered in its favor. It is not, however, 
 denied that the fourth section of the act establishing the college (67 
 Ohio L. 20) expressly confers upon the board the "right of suing and 
 being sued, of contracting and being contracted with;" but it is con- 
 tended that such act, "in so far as it attempts to constitute the defend- 
 ant in error the board of trustees of said college, and clothe it with 
 the power therein mentioned," is in conflict with the first section of the 
 thirteenth article of the constitution, which declares that the "general 
 assembly shall pass no special act conferring corporate powers," the 
 claim being that the board is, to all intents and purposes, created a 
 corporation and clothed with corporate functions and privileges. We 
 are not able to yield our assent to this construction of the statute. The 
 act is entitled "An act to establish and maintain an agricultural and 
 mechanical college in Ohio." It creates a board of trustees, to be ap- 
 pointed by the governor, by and with the advice and consent of the 
 senate, and commits to such board the government, control and gen- 
 eral management of the affairs of the institution ; and while the 
 statute authorizes the board to make contracts for the benefit of the 
 college, and to maintain actions, if necessary, to enforce them, and to 
 exercise other powers similar to those conferred on bodies corporate, 
 it does not assume to, nor does it in fact, create or constitute such 
 board of trustees a corporation, and hence does not clothe it with 
 corporate functions or powers. The State, ex rel. the Attorney-Gen- 
 eral, v. Davis, 23 Ohio St. 434. The college is a state institution, 
 designed and well calculated to promote public educational interests, 
 
 1 Arguments of counsel and opinion of court on other points omitted. State- 
 ment of facts condensed.
 
 IQ2 NEIL V. THE BOARD. 36 
 
 established for the people of the whole state, to be managed and con- 
 trolled by such agencies as the legislature in its wisdom may provide. 
 Similar powers, but perhaps less extensive, because less required, are 
 conferred on the trustees of the various hospitals for the insane (73 
 Ohio L. 80), and on the board of managers of the Ohio Soldiers' and 
 Sailors' Orphans' Homes (67 Ohio L. 53), and other institutions of 
 the state. The powers thus conferred are essentially necessary to ac- 
 complish the objects for which these institutions were established. 
 The power to establish them is found clearly granted in the seventh 
 article of the constitution. 
 Leave refused. 
 
 Note. There is considerable difficulty in determining the character of these 
 institutions, whether they are corporations or not. Several cases hold they 
 are, and several hold they are not. Perhaps, it is not improper to call them 
 public corporations, but they are obviously not the same as municipal cor- 
 porations, or public quasi corporations such as counties, townships, school 
 boards, etc. (See infra, pp. 214, 221, 222, 229.) They have, in the case of 
 banks, at least in one state, been held to be private corporations. (See infra, 
 p. 221.) The fullest information to be had on the character of these institu- 
 tions is to be found in a note to State v. Regents of Univ. of Kan., 55 Kan. 
 389 (1895), in 29 Lawyer's Rep. Ann., p. 378. Here information is given un- 
 der the heads Banks, Educational Institutions, Other State Institutions Lia- 
 bilities of Such, and Directors, Trustees and Officers of Such. 
 
 1. Universities, etc. Regents of University of Maryland v. Williams, 9 
 Gill & J. (Md.) 365, 31 Am. Dec. 72; Oklahoma Agr. & M. Coll. v. Willis 
 (Minn.), 40 L. R. A. 677; State v. Carr, 111 Ind. 335 (University of Indiana 
 is not a public corporation); State v. White, 82 Ind. 278, 42 Am. Rep. 496 
 (Purdue University is subject to mandamus} ; State v. Regents of University, 
 55 Kan. 389 (subject to quo warranto) ; Weary v. State University, 42 Iowa 
 335 (University is not a corporation) ; University of Alabama v. Winston, 5 
 Stew. & P. (Ala.) 17 (University of Alabama is a public corporation) ; Lewis 
 v. Whittle, 77 Va. 415 (Medical College of Virginia is a public corporation); 
 Tulane Ed. Fund v. Board of Assessors, 38 La. Ann. 292 (University of Louisi- 
 ana is a corporation) ; Regents of University of Michigan v. Det. Bd. of Ed., 
 4 Mich. 213 (University is a public corporation) ; to same effect, Regents of 
 University of Michigan v. Y. M. Society, 12 Mich. 138; Sterling v. Regents 
 of University of Michigan, 110 Mich. 369, 34 L. R. A. 150; Regents of Uni- 
 versity of Nebraska v. McConnell, 5 Neb. 423 (University of Nebraska is a 
 public corporation) ; University of North Carolina v. Maultsby, 43 N. C. (8 Ir. 
 Eq.) 257 (University of North Carolina is a public corporation); State v. 
 Knowles, 16 Fla. 577 (Florida Agricultural College is a public corporation); 
 Dunn v. University of Oregon, 9 Ore. 357 (Directors of University of Oregon 
 are a corporation) ; State v. Lindsley, 3 Wash. 125 (University of Washington 
 is a state institution) ; Butler v. Regents of University of Wisconsin, 32 Wis. 
 124 (University is a state institution); State Institutions, 9 Colo. 626 (Agri- 
 cultural College and School of Mines are state institutions by the constitution 
 and can not be moved) ; Lundy v. Delmas, 104 Cal. 655, 26 L. R. A. 651 (Re- 
 gents not individually liable for damages). 
 
 2. Banks, state. See Bank of Tennessee v. Woodson, 5 Coldw. (Tenn.) 
 176; Bank of Kentucky v. Wister, 27 U. S. (2 Pet.) 318; Briscoe v. Bank of 
 Commonwealth of Kentucky, 36 U.-S. (11 Pet.) 257; Woodruff v.Trapnall, 51 
 U. S. (10 How.) 190; Darrington v. Branch Bank of Alabama, 54 U. S. (13 
 How.) 12; Curran v. Arkansas, 56 U. S. (15 How.) 304; Barings v. Dabney, 
 86 U. S. (19 Wall.) 1; Jones v. Bank of Tennessee, 8 B. Mon. 122, 46 Am. 
 Dec. 540; McFarland v. State Bank, 4 Ark. 44/37 Am. Dec. 761; Linn v. 
 State, 2 111. 87, 25 Am. Dec. 71. 
 
 3. Other institutions. Cleaveland v. Stewart, 3 Ga. 283 ; Illinois Board of
 
 37 SOLE AND AGGREGATE CORPORATIONS. 193 
 
 Education v. Greenebaum, 39 111. 610 ; Downing v. State Board of Agriculture, 
 129 Ind. 443, 12 L. R. A. 664; Liggett v. Ladd, 23 Ore. 26 (Ag. Soc.) ; Selinas 
 v. Vermont Agricultural Society, 60 Vt. 249; Hern v. Iowa State Agricul- 
 tural Society, 91 Iowa 97, 24 L. R. A. 655. See, especially, the full notes upon 
 the subject of state institutions generally, in 29 L. R. A. 378, and 40 L. R. A. 
 677. 
 
 ARTICLE VI. CLASSES OF CORPORATIONS. 
 
 Sec. 37. Every body politike, or corporate, is either ecclesiastical 
 or lay; ecclesiastical, either regular, as abbots, priors, etc., 
 or secular, as bishops, deans, archdeacons, parsons, vicars, 
 etc. ; lay, as maior or communaltie, baylifes and burgesses, 
 etc. * * * And againe it is either sole, or aggregate of 
 many. * * And this body politike, or corporate, 
 
 aggregate of many, is by the civilians called collegeium or 
 universitas 
 
 Coke's Littleton, 413, c. 1613. 
 
 (a) As to number of members, corporations are : 
 
 1. Sole. 
 
 2. Aggregate. 
 
 OVERSEERS OF THE POOR OF THE CITY OF BOSTON v. SEARS 
 
 ET Ux. 1 
 
 1839. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 22 
 Pickering (Mass.) Rep. 122135. 
 
 [Writ of right by plaintiff against defendants to recover certain lands 
 in Boston, claiming upon the seizin of their predecessors within the 
 last forty years. Defendants demurred.] 
 
 SHAW, C. J., delivered the opinion of the court. It is a well-settled 
 rule of law, applicable to real actions, that it is not necessary, as in 
 personal actions, to plead a statute of limitations, and, therefore, if it 
 appear, on the face of the record, that the action is not brought within 
 the time limited by law, the tenant may avail himself of it by general 
 demurrer. Holmes v. Holmes, 2 Pick. 23. 
 
 By statute 1786, ch. 13, 3, no person or body politic shall sue or 
 maintain any action, for any lands, upon his or their own seizin or pos- 
 session therein, above thirty years next before the teste of the same 
 writ. And by statute 1807, ch. 75, i, no person shall sue or main- 
 tain any writ of right to any lands, upon the seizin of his or their an- 
 cestor or predecessor, beyond the term of forty years next before the 
 teste of the same writ. 
 
 1 Arguments and part of opinion omitted. Statement of facts condensed. 
 13 WIL. CASES.
 
 194 OVERSEERS, ETC., V. SEARS. 37 
 
 It is therefore manifest that if this writ is taken to be one on which 
 the plaintiff corporation count on their own seizin ; or, if they consti- 
 tute a corporation of such a character that they could have no prede- 
 cessor in legal contemplation, and, of course, could not count on the 
 seizin of predecessors, then this action can not be maintained. This 
 distinctly presents the question for consideration. On the part of the 
 tenants,, it is contended, that this is a common case of a corporation 
 aggregate, consisting of many persons, with the usual incidents of an 
 aggregate corporation, that as such they must declare upon their own 
 seizin within thirty years. On the contrary, it is contended by the de- 
 mandants, that although the plaintiff corporation is composed of many 
 persons, yet that is more analogous to the case of a sole corporation, 
 particularly in this, that they do not elect the members of their own 
 body, that they all go out at once and new members come in at once, 
 as the necessary consequence of an annual election by others, and, 
 therefore, that the corporation of one year and that of another, when 
 an election has intervened, bear to each other the legal relation of pred- 
 ecessor and successor. 
 
 It becomes, therefore, necessary to distinguish with some care be- 
 tween these different kinds of corporations. "The first division of 
 corporations," says Blackstone, "is into aggregate and sole. Corpo- 
 rations aggregate consist of many persons united together into one 
 society, and are kept up by a perpetual succession of members, so as 
 to continue forever. Corporations sole consist of one person only, 
 and his successors, in some particular station, -who are incorporated 
 by law in order to give them some legal capacities, particularly that 
 of perpetuity ." We are not aware that there is any instance of a 
 sole corporation in this commonwealth except that of a person who 
 may be seized of parsonage lands to hold to him and his successors, in 
 the same office, in right of his parish. There are some instances in 
 which certain public officers are empowered by statute to maintain 
 actions, as successors, such as judges of probate, county and town 
 treasurers; but it is only where expressly provided by statute. "There 
 are," says Chancellor Kent, 2 Commentaries (3d ed.), 273, 274, 
 "very few points of corporation law, applicable to a corporation sole." 
 "The corporations generally in use with us are aggregate or the union 
 of two or more individuals in one body politic, with a capacity of suc- 
 cession and perpetuity." 
 
 It becomes then necessary to consider what are the distinctions estab- 
 lished by law, between a sole and an aggregate corporation. The first 
 and the most important is that a corporation aggregate has a perpetual 
 existence without change, so that an estate once vested in it continues 
 vested without interruption. Whereas, when a bishop or parson, 
 holding estate as a sole corporation, dies or resigns his office, the fee 
 is in abeyance until a successor is appointed. From this flows one 
 necessary, but obvious legal consequence, which is that a grant to an 
 aggregate corporation carries a fee without the word "successors"; 
 but a grant to a corporation sole, without including successors, carries 
 a life estate only to the actual incumbent, who is the first taker. Co..
 
 37 SOLE AND AGGREGATE CORPORATIONS. 195 
 
 Lit., S, 9<5, 94$; 4 Cruise's Dig., 442. A life estate to an ideal 
 being having a perpetual and uninterrupted existence must be coex- 
 tensive with a fee or perpetuity, and words of limitation could not ex- 
 tend it. But where property vests in a bishop, parson or other sole 
 corporation, he holds it to his own use and benefit whilst he holds the 
 office, and afterward the estate and the enjoyment of it go together to 
 his successor when established. The transmission of the estate is per- 
 petual, but the beneficial enjoyment changes at each succession. 
 
 Another well settled distinction is that by the common law a sole 
 corporation can not take personal property in succession, and that its 
 corporate capacity is confined to real estate. 2 Kent's Com., 273. 
 An aggregate corporation may take personal property for themselves 
 and successors. The reason why a sole corporation can not, says 
 Blackstone, is that such movable property is liable to be lost or em- 
 bezzled, and would raise a multitude of disputes between the succes- 
 sor and executor, i Comm., 477. 
 
 There are a great variety of other particulars, in which the incidents 
 and characteristics which are considered essential to an aggregate cor- 
 poration do not extend to a sole corporation because by the reason and 
 nature of their respective modes of operation they do not apply ; upon 
 the principle that when the reason of a rule ceases the rule ceases. 
 
 An aggregate corporation may have and use a common seal by which 
 the will of the body is expressed and its acts executed ; they are to 
 take and grant by their appropriate corporate name ; may take and 
 hold real and personal property ; may make by-laws for the regulation 
 of all matters within the scope of their authority, not contrary to the 
 law of the land or repugnant to the provisions of the charter or act of 
 incorporation ; they must perform all corporate acts, by deed under 
 their common seal, by vote or by the agency of officers or agents duly 
 authorized for the purpose ; they must appear by attorney and can not 
 appear in person ; the will of the majority, orderly taken at a meeting 
 duly called and held, .is the will of the body and must govern unless 
 otherwise provided by charter or by-law; they must regularly keep a 
 record, journal or other written account of their votes and proceed- 
 ings, which is the proper evidence of their acts, and may elect and 
 qualify a clerk or secretary for that purpose ; they may elect a presi- 
 dent or head, a treasurer, managers, directors and other suitable offi- 
 cers, with such powers as the terms import, and such as may be spe- 
 cially conferred upon them by vote or deed to manage their affairs ; 
 they may elect members to fill vacancies when it is not otherwise pro- 
 vided by the charter. Indeed this last qualification must be added in 
 regard to almost all these enumerated powers, and it may be remarked 
 generally that when these are denominated incidents to an aggregate 
 corporation, it is to be understood that they are the most common and 
 usual characteristics of such a corporation, and that they exist by im- 
 plication, in cases where it is not otherwise provided in the charter; 
 but that its constitution and organization, the mode in which individu- 
 als may become and cease to be members, and also its action in all 
 respects, the manner, times, places and occasions on which meetings
 
 196 OVERSEERS, ETC., V. SEARS. 37 
 
 may be held, the members or particular individuals who must be 
 present and vote to constitute a valid act, the officers who may or must 
 be chosen, the property they may hold, the powers they may exercise, 
 the duration of their existence, may all be modified and regulated ad 
 libitum, by the power which constitutes the corporation. Nothing- 
 seems essential to a corporation but a capacity to have perpetual suc- 
 cession, under a special denomination and in an artificial form, a ca- 
 pacity to take, hold and grant property, to sue and be sued by its cor- 
 porate name, and in common to exercise powers and enjoy franchises 
 and immunities. 2 Kent's Com., 277. 
 
 In all these respects the distinction between an aggregate and sole 
 corporation, growing out of their different modes of constitution and 
 forms of action, is striking and obvious. A bishop or parson acting 
 in a corporate capacity, and holding property to him and his successor 
 in right of his office, has no need of a corporate name ; he requires no 
 peculiar seal ; he performs all legal acts under his own seal, in his own 
 name and name of office ; his own will alone regulates his acts, and he 
 has no occasion for a secretary, for he need not keep a record of his 
 acts ; no need of a treasurer, for he has no personal property, except 
 the rents and proceeds of the corporate estate, and these he takes to 
 his own use when received. By-laws are unnecessary, for he regu- 
 lates his own action, by his own will and judgment, like any other in- 
 dividual acting in his own right. But it is not necessary to pursue the 
 comparison into all its details ; the points suggested are sufficient to 
 show the legal distinctions between the two classes of corporations. 
 
 With these views of the characters of these two kinds of corpora- 
 tions, it becomes necessary to examine the act under which the de- 
 mandants were made a corporation, and under which they act, in 
 order to ascertain their legal character and rights. This act was 
 passed by the provincial government shortly before the revolution, in 
 1772. It recites that many charitably disposed persons had given 
 sums of money and other interest and estate to the poor of Boston, 
 and others were well inclined to make such charitable donations, but 
 the overseers of the poor of the same town, not being incorporated, 
 such good intentions had been frustrated, or not earned into full 
 effect ; it then enacts that the said overseers for the time being, be 
 made and incorporated into a body politic by the name, etc., and that 
 they and their successors in said office have a perpetual succession by 
 said name. The second section provides that all money and estate, 
 real or personal, before given, or which should be afterwards given 
 to the poor of said town, not exceeding the amount and value therein 
 limited, should be vested in the same overseers, and their successors 
 in their said corporate capacity ; and they were enabled to receive 
 and manage the same for the use of said poor. The third section 
 authorizes them to take and hold moneys, securities and personal 
 property to the amount of sixty thousand pounds and no more. The 
 fourth section again declares that the said overseers and their succes- 
 sors in said office, by the said name, shall have perpetual succession 
 and power, by their said corporate name, to purchase and hold lands.
 
 37 SOLE AND AGGREGATE CORPORATIONS. 197 
 
 not exceeding five hundred pounds annual income, to manage, lease 
 and sell the same, and do all other acts, as natural persons may, as 
 they shall judge best for the use and advantage of said poor. The 
 fifth section authorizes them to have a common seal, to make by-laws, 
 to choose a treasurer, clerk and other subordinate officers, and at 
 pleasure to displace them. The sixth and last section declares that all 
 instruments executed under their common seal, and all acts done or 
 matters passed upon by consent of a major part of said overseers for 
 the time being, shall bind said corporation and be valid in law. 
 
 Here are all the characteristics and incidents of a complete, full, 
 aggregate corporation. It was to be composed of several persons. 
 They were to hold personal as well as real estate, to make by-laws 
 for their government, to have a common seal, to have perpetual suc- 
 cession, and to act by the vote of a majority. Indeed it is not denied 
 that they are literally an aggregate corporation, consisting of many 
 persons, in contradistinction to a sole corporation ; but it is contended, 
 that as they have no power of electing their own members, and thereby 
 perpetuating their own existence, but all come in by annual election 
 and go out at the end of the year, they constitute a body more analog- 
 ous to a sole corporation than to an aggregate one. But this analogy 
 is not such as wholly to change the character of such a corporation. 
 Indeed, the analogy even in this respect is rather slight. 
 
 The strong argument is, that in this corporation there is no provis- 
 ion that the body shall perpetuate itself by an election of new mem- 
 bers in place of those who die or resign. But this mode of perpetu- 
 ating its existence is not essential ; all that is essential is, that some 
 mode be provided by the charter, or act by which it is constituted, by 
 means of which it shall be so perpetuated. Blackstone, in the defini- 
 tion already cited, says, that "corporations aggregate consist of many 
 persons, united together into one society, and are kept up by a per- 
 petual succession of members, so as to continue forever." i Comm., 
 469. If such a succession is effectually provided for, it is all that is 
 requisite. Here we are to consider that the legislature, in framing 
 this act of incorporation, had in their view the general laws of the 
 government, and the manner in which towns in general, and the town 
 of Boston in particular, were organized. Those laws provided, that 
 that town should annually choose twelve persons to be overseers of 
 the poor, and the general laws provided, that if overseers were not 
 specially chosen, the selectmen should act as overseers. Towns were 
 of themselves corporations, having perpetual succession, consisting of 
 all persons inhabiting within certain territorial limits, so that by the 
 ordinary operation of the laws, a perpetual succession of overseers 
 was secured. The better opinion is, that town officers thus annually 
 chosen hold their offices until others are chosen and qualified in their 
 place. But this is not essential to the argument ; it is made the duty 
 of towns to choose officers annually, it being for their interest to do 
 so; and when chosen, they become, by force of the statute, members 
 of the corporation, and thus all the purposes contemplated by the in- 
 corporation would be attained. And this mode of continuing a sue-
 
 1 98 OVERSEERS, ETC., V. SEARS. 37 
 
 cession of members, without election by the corporation itself, applies 
 to the great majority of corporations in this commonwealth. In all 
 quasi corporations, as cities, towns, parishes, school districts, mem- 
 bership is constituted by living within certain limits. In all bridge, 
 railroad and turnpike companies, in all banks, insurance companies, 
 manufacturing companies, and generally in corporations having a cap- 
 ital stock, and looking to profit, membership is constituted by a trans- 
 fer of shares, according to the by-laws, without any election on the 
 part of the corporation itself. In some, the assent of the corporation 
 is made necessary to such transfer and consequent membership. In 
 some instances more nearly resembling the present, all the members 
 of the corporation are chosen, annually or otherwise, by a body other 
 than itself, as trustees of ministerial funds, chosen by the parish, dea- 
 cons of Congregational churches and wardens and vestry of Episcopal 
 churches, by the members of those churches ; and in the latter case, 
 the corporators are elected by persons not themselves being a corpo- 
 ration, and having a perpetual existence as voluntary associations, 
 only by the ancient and established usages of the country. St. 1785, 
 ch. 51. 
 
 In the present case abundant provision was made for perpetuating 
 ?the corporation. Supposing the act to be framed with reference to 
 the established and perpetual laws then in force, it was equivalent to 
 declaring that those persons, who were then overseers of the poor, 
 and those who should thereafter be annually and successively chosen 
 by the town, forever, as such overseers, should be a body corporate 
 and have perpetual succession. And this was an ample provision 
 made in the act, for the perpetual succession of members, declared by 
 the act itself. It was stated in the argument for the demandants, on 
 the authority of Lord Coke, that by the ancient law an abbot or con- 
 vent would not take as an aggregate corporation, because, though 
 consisting of many, it had not power to perpetuate itself by election, 
 but the abbot comes in by appointment. But this argument is not 
 sustained by the authority. The reason assigned by Lord Coke is 
 that the abbot only is capable of taking ; the convent or monks are 
 dead persons in law, and for that reason the estate vests in the abbot 
 alone as a sole corporation. Co. Lit., 94<z, 94<^ 
 
 Some cases were cited from the New York Reports, supposed to 
 have a bearing on this subject, in which it was held that overseers 
 might sue and be sued upon the acts of their predecessors. Todd v. 
 Birdsall, i Cowen 260; Grant v. Fancher, 5 Cowen 369. These 
 cases have very little bearing upon the present question. They de- 
 pend upon general statute provisions, very different from ours. These 
 cases went on the ground that the overseers were not corporations, but 
 exercised certain public trusts and duties, which, when done within 
 the scope of their authority, devolved upon their successors in the 
 same trust, in the nature of corporate obligations. Whatever may be 
 the relation of the overseers of the poor in this commonwealth, by the 
 general laws, in this respect, these demandants were specially incor- 
 porated for the purpose of taking and holding property, for the use of
 
 37 SOLE ANU AGGREGATE CORPORATIONS. 199 
 
 the poor, and their rights and duties, in this respect, do not depend 
 upon these general laws. 
 
 If the legislature who granted this act of incorporation, knew and 
 recognized the distinction between an aggregate and sole corporation, 
 it is very clear that they intended to constitute an aggregate corpora- 
 tion, to take and hold personal property, and provided for the appoint- 
 ment of a treasurer for that purpose. * * * 
 
 If it be asked what reason can be assigned why a sole corporation 
 shall have forty years to bring a writ of right, counting on the seizin 
 of a predecessor, and why an aggregate corporation generally, or such 
 a corporation as the demandants, in particular, shall have only thirty 
 years, in addition to the technical reasons already assigned, we think 
 that there are some others bearing more directly on the merits. 
 
 A parson, acting in the capacity of a sole corporation, comes to the 
 estate of his predecessor, as an heir does to his inheritance, a stranger. 
 He is usually a young clergyman, knowing nothing of the parsonage, 
 till about the time of his settlement. He is dependent on the duty and 
 courtesy of the representative of his predecessor, to be furnished with 
 the title deeds. Considerable time may elapse before he can become 
 acquainted with the amount and condition of the estate, which he is 
 bound to preserve and defend for the benefit of himself, his parish, 
 and his successors. The condition of a corporation aggregate, situated 
 like the demandants, vested with corporate powers for the better 
 executing of a public trust, is altogether different. Looking at the 
 matter practically, as the legislature may be presumed to have done, 
 many, perhaps most of the overseers, will be re-chosen, and the board 
 will change gradually. But suppose an entire new board comes in, 
 the records, votes, and muniments of title are all in the hands of their 
 clerk; the money, securities and personal property are held by the 
 treasurer; confidential officers, the performance of whose duty is 
 usually secured by oath and bond. They are in as good a condition 
 to execute the trusts reposed in them, in regard to these charitable 
 funds, as to understand and perform the other duties confided to them. 
 They are in the same condition with all other city and town officers, 
 and indeed all officers of the state government, and of all corporations, 
 where they come in by annual election. In most cases of aggregate 
 corporations, the trustees, directors, managers and executive officers, 
 all those who are charged with the duty of investigating and maintain- 
 ing the rights of such corporations, either to real or personal property, 
 come into office by annual election, and yet they have but thirty years, 
 within which to commence writs of right. 
 
 On the whole, the court are all of opinion that the demandants 
 were constituted an aggregate corporation, with perpetual and con- 
 tinued succession ; that a grant to them of real estate would have 
 carried a fee without being to their successors ; that in a writ of right 
 they can count only upon their own seizin, within thirty years next 
 before the commencement of the action, and that, not having so 
 counted in the present case, the demurrer is well taken. 
 
 Note. 1807, Western v. Hunt, 2 Mass. 500, (Parson as to parsonage lands ie
 
 2OO OVERSEERS, ETC., V. SEARS. 37 
 
 a corporation sole) ; 1811, Brunswick v. Dunning, 7 Mass. 445-7, (Same) ; 1889, 
 Archbishop v. Shipman, 79 Cal. 288, (Roman Catholic bishop holding church 
 lands is a corporation sole) ; 1875, Westcott v. Fargo, 61 N. Y. 542, (Presi- 
 dent and treasurer of a joint stock company for purposes of suits under stat- 
 utes are substantially corporations sole) . 
 
 1. Officers. What were formerly classed as corporations sole in the old 
 digests with us are now usually classed as officers, and found under that title 
 in digests. 
 
 The King of England (Co. Lit. 43, 1 Bl. Com. 469, 1 Kyd 20), the cham- 
 berlain of the city of London for purpose of taking certain bonds to himself 
 and successors (Fulwood's Case, 4 Coke 64; Cro. Eliz., 464); minister of a 
 parish seized of its freehold (Pawlet v. Clark, 9 Cranch, U. S. 292) ; the gov- 
 ernor of the state (The Governor v. Allen, 8 Humph. (27 Tenn.) 176, infra, 
 p. 270); and certain county officers, in taking bonds, recognizances, etc. 
 (Kinney v. Sanders, 3 Ired. (N. C. )"360; McDowell v. Hemphill, 60 N. 0. 
 (1 Winst. Law) 96, have been held to be corporations sole. In Louisville 
 Banking Co. v. Eisenman, 94 Ky. 83, 42 Am. St. Rep. 335, it is said there is 
 no such being as a sole corporation in this state, and none such allowed to be 
 created by the statute. This was said concerning a corporation in which one 
 member had become the owner of all the shares, and in some measure mis- 
 conceived the difference between a corporation sole and a corporation aggre- 
 gate, the latter being one in which there is the capacity of having more than 
 one member at a time, and the former one in which there is the capacity of 
 having only one member at a time. 
 
 2. One man companies. In corporations with shares of stock, one man 
 may become the owner of all the shares of stock, but this does not convert 
 the corporation into a corporation sole, for there is yet the capacity to sell 
 shares by the owner, and bring in other members. For most purposes, as 
 Mr. Cook says ( 709), "the existence, relations and business methods of the 
 corporation continue." But in Maryland and Kentucky it is held that the 
 corporate existence or franchise is suspended while one owns all the stock to 
 the extent that the corporate property becomes liable for the debts of the sole 
 owner in the same way as his own ; but on the other hand, the sole owner 
 does not become individually liable for debts created for the corporation and 
 in its name. (Swift v. Smith, 65 Md. 428, 57 Am. Rep. 336; Louisville Bank- 
 ing Co. v. Eisenman, 94 Ky. 83, 42 Am. St. Rep. 335, 19 L. Rep. A. 684.) But 
 such distinction has not usually been made. See 1897, Salomon v. Salomon, 
 etc., L. R. App. Cas. 22; 1897, Harrington v. Connor, 51 Neb. 214, 70 N. W. 
 Rep. 911; 1897, Randall v. Dudley, 111 Mich. 437, 69 N. W. Rep. 729; 1896, 
 Parker v. Bethel Hotel Co., 96 Tenn. 252, 31 L. R. A. 706; 1896, National 
 Water- Works Co. v. Kansas City, 78 Fed. Rep. 428; 1895, Bank v. Macon 
 Construction Co., 97 Ga. 1 ; 1892, Union Pacific R. v. Chicago, etc., R.,51 Fed. 
 Rep. 309; 1891, Humphreys v. McKissock, 140 U. S. 304; 1889, Farmers, etc., 
 Trust Co. v. Chicago, P. & S. R. Co., 39 Fed. Rep. 143; 1886, England v. 
 Dearborn, 141 Mass. 590; 1884, Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 
 131. 
 
 See note, pp. 889, 890.
 
 3$ ECCLESIASTICAL AND LAY CORPORATIONS. 2OI 
 
 Sec. 38. Same. (#) As to purpose, corporations are: 
 
 (1) Ecclesiastical, or religious. 
 
 (2) Lay, which are (a) Eleemosynary, or (b) Civil. 
 
 HARDIN v. TRUSTEES OF SECOND BAPTIST CHURCH. 
 
 1883. IN THE SUPREME COURT OF MICHIGAN, 51 Mich. Reports, 
 PP- W-W, 47 Am - Re P- 555- 
 
 Error to Wayne. (Jennison, J.) June 13. June 22. 
 Case. Plaintiff brings error. Affirmed. 
 
 COOLEY, J. The preliminary objection to the maintenance of this 
 action is so unmistakably fatal that there can be no occasion or excuse 
 for considering any other. 
 
 The plaintiff, who, previous to February 2, 1881, was a member in 
 good standing of the Second Baptist Church of Detroit, brings suit 
 against the defendant to recover damages for having been on that day 
 unwarrantably and without trial upon charges expelled from member- 
 ship. The suit is against the corporate body known in law as "The 
 Trustees of the Second Baptist Church of Detroit," and which was 
 organized by voluntary association under authority conferred by the 
 Revised Statutes of 1838. The provision contained in that code is 
 substantially the same which has always existed in this state, and 
 which is simple and easily understood. Persons desirous of forming 
 themselves into a religious society sign articles of association for the 
 purpose, agree upon a name, elect trustees and put their articles on 
 record when duly perfected. They thereby become a corporation by 
 the name agreed upon, and may take, hold and convey property and 
 exercise the ordinary functions of corporate bodies. The associates 
 are not necessarily professors of any particular belief or faith, or mem- 
 bers of any church ; and corporate succession is kept up by conferring 
 the privileges of corporators on all who regularly attend worship in 
 the society and contribute to its support. And the trustees who are 
 to manage the temporal affairs of the corporation may or may not be 
 church members. 
 
 Connected with the corporation the statute contemplates that there 
 will be a church, though possibly this may not be essential. In this 
 case there is one. The church has its members, who are supposed to 
 hold certain beliefs and subscribe some covenant with each other, if 
 such is the usage of the denomination to -which the church is at- 
 tached. The church is not incorporated, and has nothing whatever 
 to do with the temporalities. It does not control the property or the 
 trustees; it can receive nobody into the society and can expel nobody 
 from it. On the other hand, the corporation has nothing to do with 
 the church, except as it provides for the church wants. It can not 
 alter the church faith or covenant ; it can not receive members ; it 
 can not expel members ; it can not prevent the church receiving or
 
 202 HARDIN V. TRUSTEES, ETC. 38 
 
 expelling -whomsoever that body shall see jit to receive or expel. This 
 concise statement is amply sufficient to show that this suit has no 
 foundation. The corporation is sued for a tort which it neither com- 
 mitted nor had any power to prevent, and which has occurred in a 
 proceeding where the interference of the corporation would have been 
 an impertinence. 
 
 But it is said that the church is an integral part of the corporation, or 
 rather, that it is the corporation in its spiritual capacity. Its being an 
 integral part of the corporation proves nothing. Counties, towns and 
 school districts are integral parts of the state, but the state is not for 
 that reason liable for their torts. And as to spiritual capacity, the 
 corporation has none ; it is given capacity in respect to temporalities 
 only. If the corporation had assumed to expel this plaintiff from the 
 church, she might treat its action with contempt. But as she makes 
 no complaint of wrongful corporate action, we must assume that the 
 corporation has never invaded her rights. If the church has done so r 
 the church alone is culprit. 
 
 The distinction between church and corporation in these cases is 
 sufficiently explained in the following authorities: Baptist Church v. 
 Witherell, 3 Paige 296, s. c. 24 Am. Dec. 223; Lawyer v. Cip- 
 perly, 7 Paige 281 ; Robertson v. Bullions, n N. Y. 243; Bellportv. 
 Tooker, 29 Barb. 256, and 21 N. Y. 267; Burrel v. Associate Re- 
 formed Church, 44 Barb. 282; Miller v. Gable, 2 Denio 492; Fer- 
 raria v. Vasconcellos, 31 111. 25; Calkins v. Cheney, 92 111. 463; 
 Keyser v. Stansifer, 6 Ohio 363 ; Shannon v. Frost, 3 B. Mon. 253 ; 
 German, etc., Cong. v. Pressler, 17 La. Ann. 127; O'Hara v. Stack, 
 .90 Pa. St. 477 ; Sohier v. Trinity Church, 109 Mass, i ; Walrath v. 
 Campbell, 28 Mich. in. See, also, Hale v. Everett, 53 N. H. 9. 
 
 The judgment must be affirmed with costs. 
 
 The other justices concurred. 
 
 Note. 1765, Rex v. Chancellor of Cambridge, 3 Burr. 1656, s. c. 1 W. Black. 
 550; 1815, Pawlet v. Clark, 9 Cranch 292; 1868, Hale v. Everett, 53 N. 
 H. 9, 16 Am. Rep. 82; 1883, Sale v. First Regular Baptist Church, etc., 62 
 Iowa 26, 49 Am. Rep. 136; 1883, Landis v. Campbell, 79 Mo. 433, 49 Am. Rep. 
 239; 1890, Lilly v. Tobbein, 103 Mo. 477, 23 Am. St. Rep. 887; 1895, Russie v. 
 Brazzell, 128 "Mo. 93, 49 Am. St. Rep. 542; 1832, First Baptist Church v. 
 Witherell, 3 Paige Ch. (N.Y.) 296, 24 Am. Dec. 223; 1890, Connelly v. Masonic, 
 etc., Association, 58 Conn. 552, 18 Am. St. Rep. 296; 1894, Reorganized 
 Church of Jesus Christ of Latter Day Saints v. Church of Christ, 60 Fed. Rep. 
 937, 45 Am. & Eng. Corp. Cas. 529; 1894, Auracher v. Yerger, 90 Iowa 558, 45 
 Am. & Eng. Corp. Cas. 554; 1883, White Lick Quarterly Meeting, etc., v. 
 White Lick Quarterly Meeting, etc., 89 Ind. 136, 4 Am. & Eng. Corp. Cas. 87; 
 1894, Buettnerv. Frazer, 100 Mich. 179, 58 N. W. Rep. 834; 1891, Winnepe- 
 eaukee Camp Meeting Ass'n v. Gordon, 67 N. H. 98, 45 Am. & Eng. Corp. 
 Cas. 576; 1883, Whitecar v. Michenor, 37 N. J. Eq. 6, 1 Am. & Eng. Corp. 
 Cas. 258; 1888, Liggett v. Ladd, 17 Ore. 89, 27 Am. & Eng. Corp. Cas. 406.
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 2O3 
 
 Sec. 39. Same. 
 
 EOBERTSON ET AL. v. BULLIONS ET AL. 
 
 1850. IN THE SUPREME COURT OF NEW YORK. 9 Barbour (N. Y.) 
 
 Rep., pp. 64-150. 
 
 [In equity. Appeal from the vice-chancellor. In 1754 "the As- 
 sociate Presbytery of Pennsylvania," subordinate to the Associate 
 Synod of Scotland, was organized out of the American congregations 
 of the Associate Church. In 1785, a church known as the Associate 
 Congregation of Cambridge, N. Y., adhering to the Associate Pres- 
 bytery of Pennsylvania, was formed. In 1802, connection with Scot- 
 land was dissolved, and the Pennsylvania Presbytery was terminated 
 by being divided into four presbyteries, one being called the Associate 
 Presbytery of Cambridge, and a synod called "Associate Synod of 
 North America," organized. Local churches were called congrega- 
 tions. In 1826 the Cambridge Associate Congregation became in- 
 corporated. In 1786 certain land was conveyed by F. to seven per- 
 sons designated as trustees of the Associate Congregation of Cambridge, 
 "adhering to the Associate Presbytery of Pennsylvania," and to their 
 successors forever. F/s wife failing to join in the conveyance of 
 1786, in 1810 a new deed was made to fourteen persons (three being 
 the same as formerly) described as trustees of the same congregation, 
 "adhering to the principles of the Associate Synod of North America, 
 and now under the inspection of the Associate Presbytery of Cam- 
 bridge, belonging to the said synod, and whereof the Rev. Alexander 
 Bullions is the present pastor," for the use and in trust for those who 
 then were or should thereafter be in full communion, and should com- 
 pose the said Associate Congregation. 
 
 In 1786, a church was built on this property, and in 1833, a new 
 one. In 1808, Dr. Bullions was called as pastor "by the elders and 
 other members of the Associate Congregation of Cambridge, in full 
 communion, as professed by the Associate Presbytery of Cambridge, 
 as subordinate to the Associate Synod of North America." And Dr. 
 Bullions on ordination promised to submit himself to the admonition of 
 the Cambridge Presbytery. In 1838, he was deposed and excommuni- 
 cated by this Presbytery ; its action was affirmed by the Synod of 
 North America, the pastorate declared vacant, and other pastors sent 
 by the Synod to preach temporarily, but a majority of trustees refused 
 to allow them to preach, but permitted Dr. Bullions to continue. The 
 bill prayed that the offending trustees be required to allow a clergy- 
 man in good standing to preach, that they be enjoined from using the 
 church or its funds in support of any other, be required to account for 
 all money so expended, that they be removed, and Dr. Bullions re- 
 strained from acting as minister. The answer alleged that the greater 
 part of the subscriptions by which the new church was built was con- 
 
 1 Statement of facts condensed. Arguments and much of the opinion omit- 
 ted. Dissenting opinion of CADY, J., omitted. See decision of court of ap- 
 peals, affirming the decree rendered by the supreme court, 11 N. Y. 243.
 
 2O4 ROBERTSON V. BULLIONS. 39 
 
 tributed by supporters of Dr. Bullions, of whom there were 340, in- 
 cluding 221 communicants, all the elders and all the trustees at that 
 time, while the complainants were only 75 persons including 60 com- 
 municants ; that Dr. Bullions had been wrongfully deposed by the 
 Presbytery, which was illegally constituted, and that neither he nor 
 his supporters had departed from the principles of the Associate 
 church. The vice-chancellor held that the property was vested in the 
 trustees for the use of the congregation, in accordance with the dis- 
 cipline and government of the Associate church of North America, 
 which did not allow excommunicated preachers to act as minister, 
 and the appropriation of the property fonsuch use would be enjoined. 
 Also that the trustees be removed, and new ones be elected by those 
 who adhered to the Associate Presbytery of Cambridge, including 
 those who statedly worshiped with them ; also that there be an ac- 
 counting for the use of the property. 
 
 The statute under which the corporation was formed provided : 
 "That it shall be lawful for the male persons of full age, belonging 
 to any church, congregation, or religious society, now or hereafter 
 to be established in this state, and not already incorporated, to assem- 
 ble at the church, meeting-house, or other place where they statedly 
 attend for divine worship, and by plurality of voices, to elect any 
 number of discreet persons of their church, congregation or society, 
 not less than three nor exceeding nine in number, as trustees, to take 
 charge of the estate and property belonging thereto, and to transact 
 all affairs relative to the temporalities thereof; and that at such elec- 
 tion every male person of full age, who has statedly worshiped with 
 such church, congregation or society, and has formerly been con- 
 sidered as belonging thereto, shall be entitled to vote ; and the said 
 election shall be conducted as follows: the minister of such church, 
 congregation or society, or in case of his death or absence, one of the 
 elders or deacons, church wardens or vestrymen thereof, and for want 
 of such officers, any other person being a member or a stated hearer 
 in such church, congregation or society, shall publicly notify the con- 
 gregation of the time when, and place where, the said election shall 
 be held, at least fifteen days before the day of election ; that the said 
 notification shall be given for two successive Sabbaths, or days on 
 which said church, congregation or society, shall statedly meet for 
 public worship, preceding the day of election; that on the day of said 
 election, two of the elders or church wardens, and if there be no such 
 officers, then two of the members of the said church, congregation or 
 society, to be nominated by a majority of members present, shall pre- 
 side at such election, receive the votes of the electors, be the judges 
 of the qualifications of such electors, and the officers to return the 
 names of the persons who by plurality of voices shall be elected to 
 serve as trustees for the said church, congregation or society, and the 
 said returning officers shall immediately thereafter certify under their 
 hands and seals the names of the persons elected to serve as trustees 
 for such church, congregation or society, in which certificate the name 
 or title by which the said trustees and their successors shall forever
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 20$ 
 
 thereafter be called and known, shall be particularly mentioned and 
 described ; which said certificate being proved or acknowledged as 
 above directed shall be recorded as aforesaid ; and such trustees and 
 their successors shall also thereupon by virtue of this act be a body 
 corporate by the name or title expressed in such certificate." 
 
 The law also empowered the trustees to take into their custody and 
 control all the temporalities belonging to the church, congregation or 
 society, to sue and be sued, to purchase and hold property for the use 
 of the same, to make repairs, to regulate the renting of pews, etc., 
 and all other matters relating to the temporal concerns and revenues 
 of such church. Appoint clerk, treasurer, etc. The law provided 
 that no one but such as "shall have been a stated attendant on divine 
 worship in said church, and shall have contributed to support" of 
 same, shall be an elector. Another section provided that the salary of 
 the minister should be fixed by a majority of electors, at a meeting 
 called for that purpose ; provision was also made for reducing the 
 number of trustees to not less than three ; for reporting yearly reve- 
 nues to the chancellor, for selling all the property in certain contin- 
 gencies, and upon dissolution, "for the religious society which was 
 connected with such corporation to reincorporate" in a way prescribed.] 
 
 HAND, J. * * * Then what kind of corporations are they ? The 
 answer to this inquiry may be of some importance in this case. Chan- 
 cellor Kent, in his Commentaries, denominates them "ecclesiastical cor- 
 porations," and Angel & Ames, in their valuable work on corporations, 
 upon this authority adopt the same application. (2 Kent, 274; Angel 
 & Ames on Corporations, 33.) Neither cites any decision. Consid- 
 ering the high authority from whence the remark emanates, I express 
 a dissent with much timidity ; but with deference, I think it correct. 
 I doubt whether, in a technical sense, there are any ecclesiastical cor- 
 porations in this state, particularly under the third section of this act. 
 As an ecclesiastical body they have no legal existence ; they have no 
 ecclesiastical power. They are not controlled by and can not control 
 the church, or any church judicatory, or interfere in spiritual concerns. 
 Their object and purpose is to manage the temporalities of the society. 
 "Ecclesiastical corporations," says Blackstone, "are, where the mem- 
 bers who compose it are entirely spiritual persons, such as bishops, 
 certain deans and prebendaries ; all archdeacons, parsons and vicars, 
 which are sole corporations ; deans and chapters at present, and for- 
 merly prior and convent, abbots and monks, and the like, bodies 
 aggregate." And in describing the class of lay corporations, known 
 as eleemosynary, he adds: "And all these eleemosynary corporations 
 are, strictly speaking, lay, and not ecclesiastical, even though com- 
 posed of ecclesiastical persons, and although they in some things par- 
 take of the nature, privileges and restrictions of ecclesiastical bodies." 
 (i Bl. 470. And see Phillips v. Bury, i Ld. Ray. 6; Cawdrey's 
 Case, 5 Co. fol. 15; 2 Bac. Abr., 2; i Kyd, 22.) 
 
 It is not the profession of piety by the individuals that renders the 
 corporation, of which they are the members, ecclesiastical. The cor- 
 poration must be spiritual in a legal and not in a popular or scriptural
 
 206 ROBERTSON V. BULLIONS. 39 
 
 sense. Lay corporations may be for the advancement of religion, and 
 the members may all be clergymen, even, but that does not make the 
 corporation ecclesiastical. The king is said, inCawdrey's case, to be 
 "vicar of the highest of kings," and he is a corporation, but I believe 
 he is not considered an ecclesiastical corporation. And if he were, 
 it would be because he is the head of the church, an ecclesiastical body 
 in law. Dartmouth College is an lay and not an ecclesiastical corpo- 
 ration, and would be if the individual members were all ecclesiastical 
 persons. (Dartmouth College v. Woodward, 4 Wheat. 518. See 
 the opinion of Mr. J. Story, Ang. & Ames, 34.) And one distinctive 
 feature of ecclesiastical corporations is, that they are subject to the ju- 
 risdiction of the ecclesiastical courts or the visitatorial power of the 
 ordinary, (i Bl. 471, n. i ; Toml. Die., 436; I Kyd, 22 ; Holt, C. J., 
 
 1 Show. 252.) Our religious corporations have no such amenabilities. 
 There the ordinary is the visitor of ecclesiastical corporations, and 
 from him there is an appeal. The king, as the "supreme ordinary," 
 visits the metropolitan, and the metropolitan the bishop. Church 
 wardens (in England) are said to be lay corporations, although insti- 
 tuted for the benefit and advancement of religion and to suppress pro- 
 faneness and immorality, and to see that public worship be performed 
 with due decency and reverence ; and are elected by the parish or the 
 minister and parish, (i Bac. Abr., 597; Dawson v. Fowle, Hardr. 
 378. Holt, C. J., in Rex v. Rees, 12 Mod. 116. Toml. Die. 
 "Church wardens." i Lill. Abr. "Church wardens." i Burn's Eccl. 
 L., 378.) It may be added, that our corporations have power to build 
 school-houses and dwellings for the minister, and other buildings, etc. 
 If these were ecclesiastical corporations, there would be no visitor, for 
 the reason that no person or officer, with us, has any such jurisdiction. 
 That system is a part of the ecclesiastical polity of England, and does 
 not apply to our religious corporations. (2 Kent, 304.) 
 
 If lay corporations then they are either eleemosynary or civil. If 
 the former, the visitatorial power is with the founders or their heirs ; 
 unless it has been delegated by them to some other person. If a-civil 
 corporation, they are not subject to this species of visitation at all. 
 (2 Kent, 304.) Perhaps, for the purpose of ascertaining the power 
 of a court of chancery in this case, it is not important to decide 
 whether they are eleemosynary or civil ; for that court has no visita- 
 torial power over a private eleemosynary corporation. Where there 
 is a. failure or want of a visitor in such cases, in England, the crown 
 becomes the visitor, and that power is exercised by the court of king's 
 bench if not a charity (Rex v. Gregory, 4 T. R. 240, i, n.), and if a 
 charity, within the statute of charitable uses (43 Eliz., ch. 4), by a 
 petition to the great seal and not by bill or information ; and then the 
 lord chancellor acts in his visitatorial capacity. (Ex parte Wrangham, 
 
 2 Ves. Jr. 609; Attorney-General v. Earl of Clarendon, 17 Ves. Jr. 
 499; Attorney-General v. Dixie, 13 Ves. Jr. 519; Attorney-General 
 v. Smart, i Ves. Sen. 92; In re Bedford Charity, 2 Swanst. 524; 
 Dann, Ex parte, 9 Ves. 547, 3 Atk. 109, i Jac. i ; Hill on Trustees, 
 460.) His jurisdiction over charities, it is said, is a personal author-
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 2O/ 
 
 ity of the chancellor, and not within the ordinary powers of equity. 
 (Corporation of Bedford v. Lenthall, 2 Atk. 553.) I am aware of 
 the conflict of opinion in the English courts as to the extent of the 
 jurisdiction of the king's bench in cases of private eleemosynary 
 foundations. (King v. Cath. Hall, 4 T. R. 233; Eden v. Footer, 2 
 P. Wms. 326, 12 Mod. 116, F. N. 6.42; King v. Bishop of Ches- 
 ter, 2 Str. 797; Rex v. Gregory, 4 T. R. 240, i, n. ; Green v. Ruther- 
 food, i Ves. Sen. 471; King v. Bishop of Ely, 2 T. R. 339; Ex 
 parte Wrangham, supra.") Visitatorial power, perhaps, is not now 
 professional language when speaking of the law courts; but the king's 
 bench has a superintendent authority where other jurisdictions are de- 
 ficient. And at all events, the power where it exists on the other side 
 of the courts belongs to the great seal and not to chancery as a court 
 of equity jurisdiction, except on the ground of trust. 
 
 But I am inclined to the opinion that these corporations are not 
 eleemosynary, although occasionally so called. Eleemosynary corpora- 
 tions "are constituted for the perpetual distribution of the free alms or 
 bounty of the founder of them, to such persons as he has directed," 
 (i Bl., 471); and are of two general descriptions ; hospitals for the 
 maintenance and relief of poor and impotent persons, and colleges for 
 the promotion of learning, and the support of persons engaged in 
 literary pursuits. Blackstone says, that the universities of Cambridge 
 and Oxford are not eleemosynary corporations, "though stipends are 
 annexed to particular magistrates and professors, any more than other 
 corporations where the acting officers have standing salaries, for these 
 are rewards pro opere et labore, not charitable donations only, since 
 every stipend is preceded by service and duty." No writer upon 
 elementary law uses the term in a different sense than that given by 
 Blackstone, which also accords with its etymology. (2 Kent, 274; i 
 Wooddes., 474; i Kyd on Corp., 25; Phillips v. Bury, i Ld. Ray. 5, 
 s. c. 2 T. R. 346, s. c. Holt, 724; Webst. Die. tit. Eleemosynary; 
 Babb v. Reed, 5 Rawle 151.) Those institutions are considered of 
 this .kind, where the plan is one of bounty, charity, and benevolence 
 to others ; not those which are for the use of, and beneficial and make 
 return to, the donors. Even a school, unless it be a free school, does 
 not come within the statute of charitable uses, 43 Eliz. (Attorney- 
 General v. Hewer, 2 Vern. 387.) In this very case, the land was pur- 
 chased and paid for by, and conveyed to the society for their own use, 
 and the attorney-general is not a necessary party. Religious societies 
 may be the means of dispensing the richest bounties, but the bene- 
 ficiaries are, in a great measure, the founders themselves. 
 
 If, then, these corporations are not ecclesiastical nor eleemosynary, 
 they fall into the remaining class, private and civil. I think they 
 possess the nature and qualifications of private, civil corporations, 
 created mainly for the purpose of aiding in the promotion and enjoy- 
 ment of religion by managing the property of the church. Civil cor- 
 porations are subject to no visitation, except in England by the king, 
 who exercises this power in the king's bench, which is his representa- 
 tive, by mandamus or quo -warranto ; and here this power, in a degree,
 
 208 ROBERTSON V. BULLIONS. 39- 
 
 belongs to the government and was exercised in our supreme court, 
 which is the representative, in our judicial system, of the king's bench, 
 and, in the same manner, if such power did formerly exist here at all, 
 as the king's bench superintends the civil corporations of the kingdom. 
 (3 Bl., 42 ; 2 Kyd on Corp., 174; 2 Kent, 304; Ordinance of 1704, 
 establishing our Supreme Court; 2d R. L. App. 6.) Our statutes 
 now give certain powers over corporations to the supreme court and 
 the court of chancery, but religious corporations are expressly ex- 
 cepted from their operation, (i R. S. 603, 5, 605, n ; 2 R. S. 
 462, 33, 35 ; 466, 57.) So the law, as to these, remains as be- 
 fore. The king of England and the legislature here, as founders in a 
 certain sense of all civil corporations, are said to have visitatorial ca- 
 pacity; and they are visited and inspected, where no statute interposes, 
 in the court of king's bench according to the rules of common law, 
 and not elsewhere or by other authority, (i BL, 481 ; Attorney-Gen- 
 eral v. Utica Ins. Co., 2 John Ch. Rep. 371 ; Auburn Academy v. 
 Strong, Hopk. R. 278; 2 Kent, 300.) But whether ecclesiastical, 
 eleemosynary or civil, our court of chancery has no jurisdiction as 
 visitor over these religious corporations. * * * 
 
 Another important inquiry is, who are the corporators? This is not 
 without difficulty. Chancellor Walworth, in Lawyer v. Cipperly, 
 says that the statute of 1784 recognized three distinct classes or bodies 
 existing in a religious corporation; "the church or spiritual body, 
 consisting of the office-bearers and communicants; the congregation 
 or electors, embracing all the stated hearers or attendants on divine 
 worship who are competent to vote for trustees; and the trustees of 
 the corporation." (7 Paige, 285. See 16 Mass. 503,4; 10 Pick. 
 193; ii Pick. 494.) * * * 
 
 The chancellor adds, in The Baptist Church in Hartford v. With- 
 erell, that, although a church or body of professing Christians is almost 
 uniformly connected with such a society or congregation, the members 
 of the church have no other or greater rights than any other members 
 of the society who statedly attend with them for the purposes of divine 
 worship. (3 Paige, 301.) If it be one of the integral parts of the 
 corporation, and the church should become extinct, the corporation 
 would be dissolved. That was so settled in the well-considered case 
 of King v. Pasmore (3 T. R. 199). This would be so clearly, unless 
 the corporators have power to restore the church. A neglect to elect 
 trustees is provided for by the statute, and is, perhaps, more properly 
 a suspension. (Phillips v. Wickham, i Paige 590. And see Angel 
 & Ames on Corporations, 464, 734, 5.) The language of the third 
 section is that it shall be lawful for the "male persons belonging to 
 any other church, congregation or religious society" to choose the 
 trustees. The whole statute has reference to religious associations. A 
 "church" (ecclesia) may be: First, a temple or building consecrated 
 to the honor of God and religion ; or second, an assembly of persons 
 united by the profession of the same Christian faith, met together 
 for religious worship. (Jac. Law Diet. "Church;" Toml. Die. 
 "Church;" 5 Petersd. Abr., 409 ; Town of Pawlet v. Clark, 9 Cranch
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 2OQ 
 
 292.) These give the legal, though the word has various popular, defi- 
 nitions. (Webster's Die. "Church.") In our statute I think it is used 
 in the sense of the second definition above. "Congregation" has per- 
 haps no settled legal signification. The pleadings in this case state and 
 admit that in the Associate Church it is used to designate a local church, 
 and it would seem that the word "church" with them implies the 
 church of that denomination in its aggregate capacity, the same as the 
 term "Church of England," which is not a corporation. (Town of 
 Pawlet v. Clark, 9 Cranch 292, Story, J. ; Comm. v. Green, 4 Whart. 
 531.) The word "congregation" occurs frequently in the books 
 made exhibits in this suit. (See the Ordination Vows, in the book con- 
 taining the Narrative and the Declaration and Testimony, 174 et seq.; 
 the Form of Church Government, "Of Particular Congregations," p. 
 572; Perdivan, b. i, tit. i, and, indeed, throughout; 2 Gib's Display 
 76, and Church Government, art. 3.) "Congregation" was an ap- 
 pellation given to the Protestants in Scotland in 1559, from their 
 union. (Robertson's History of Scotland, b. 2.) The term is used 
 in the penal laws of England against disturbing public worship, par- 
 ticularly those to protect the worship of Protestant dissenters, (i W. 
 & M., ch. 1 8.) . But, as used in this statute, a congregation, I take 
 it, is an assembly met, or a body of persons who usually meet in some 
 stated place for the worship of God and religious instruction, and 
 may or may not include a church or spiritual body. 
 
 And the same may be said of the term "religious society," used in 
 the same connection in the third section. The church, congregation 
 or society must, to organize, have stated "divine worship," for the 
 electors must have attended the same to constitute them such by the 
 third and seventh sections. Whether religion and divine worship in 
 their broadest sense, or Christian sects only, are intended, it is not 
 necessary now to inquire. The statute declares that the persons 
 chosen trustees shall be a body corporate. Most of our statutes, in 
 similar cases, use different expressions; as in the acts for the incor- 
 poration of literary, manufacturing, and medical societies, cities and 
 villages, etc. And the i3th and i6th sections speak of the corpora- 
 tion being dissolved (not suspended) and authorizes the "religious 
 society which was connected therewith" to reincorporate. But the 
 9th section permits a religious corporation to reduce the number of 
 trustees, and the congregation or society, I think, is there intended. 
 The nth section speaks of the "society, to which the real estate 
 so sold did belong;" and the act of 1826 declares that if there be an 
 omission to elect trustees, the church, congregation or religious society 
 shall not be deemed thereby to have been dissolved. Several ambigu- 
 ous expressions of this nature are found in the statute. Upon the 
 whole, I am inclined to think, all of the electors are corporators. 
 They elect the trustees and from their own body, and these are the 
 officers of the society. It is true, a right of election is often vested in 
 others besides the corporators. This is almost invariably so with sole 
 corporations. Church wardens, who are a corporation for certain pur- 
 14 WIL. CASKS.
 
 2IO ROBERTSON V. BULLIONS. 39 
 
 poses, are elected by the parish, or by the minister and parish. But 
 several opinions concur in the position that the electors are corpo- 
 rators. Those of Chancellor Walworth in the Baptist Church v. 
 Witherell, 1 and Lawyer v. Cipperly, 2 have been stated. A. V. Ch. 
 Sandford seems to have entertained the same opinion. (Cammeyer 
 v. United German Lutheran Churches, 2 Sandf., ch. 186), and so 
 I infer did Gardiner, president, in Miller v. Gable, in the court for 
 the correction of errors. (2 Denio 548.) The persons entitled to vote 
 are designated by the statute. At the first election, for the purpose 
 of organizing, they must be male adults, belonging to the church, 
 congregation or society, and must have statedly worshiped with the 
 same, or have formerly been considered as belonging thereto. And 
 after the first election they must have been stated attendants on divine 
 worship in said church, congregation or society, at least one year 
 previous, and have contributed to the support of the church, congre- 
 gation or society, according to its usages and customs. 
 
 The statute, therefore, declares who are the corporators, and the court 
 of chancery can not indirectly disfranchise a member by declaring that 
 he does not possess the necessary qualifications. That power is ex- 
 pressly given to others by the act, and law courts, in case of contro- 
 versy, alone can review the matter, if that can be done by any tribunal. 
 
 If the foregoing views are correct, then those parts of the decree 
 appealed from in this case, which removed some of the defendants as 
 trustees or officers of the corporation, and which declare that the ad- 
 herents of Dr. Bullions are not members of the corporation, and who 
 are electors therein, and which provide for a new election of trus- 
 tees, are erroneous; the court of chancery having no power of amotion 
 of an officer of these corporations, or to disfranchise a member thereof , 
 or interfere with or control the election of its officers. 
 
 But, although a court of chancery has no jurisdiction with regard to 
 the election or amotion of corporators, it may, in some cases, where a 
 corporation is a trustee, take from it the trust fund, if the trust be 
 abused. * * * 
 
 In this case the corporation, together with four of the six trustees, 
 and Dr. Bullions, claiming to be and officiating as minister, are made 
 defendants. It is admitted that the legal estate is in the corpora- 
 tion. The officers of the corporation, as individuals, have no more 
 beneficial interest than any other corporators. It was said in Ver- 
 plank v. The Mer. Ins. Co. that the relation of cestui que trust and 
 trustee does not exist between the corporation and stockholders of an 
 incorporated company, (i Edw. Ch. Rep. 47, per McCoun, V. C.) 
 But the vice-chancellor further added, that a relation was created be- 
 tween the stockholders and those directors, who in their character of 
 trustees become accountable for any dereliction of duty or violation of 
 the trust reposed in them. And he saw no objection to the exercise 
 of an equity power over such persons, in the same manner as it would 
 be exercised over any other trustees. Now a trustee is a "person in 
 whom some estate, interest or power, in or affecting property of any 
 
 1 3 Paige 296 . * 7 Paige 281 .
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 211 
 
 description, is vested for the benefit of another." (Hill on Trustees, 
 411.) In The People v. Runkle the congregation are said to be the 
 constituents of the tnistees. (9 John. 156.) In the case of the 
 Dutch Church in Garden Street v. Mott, the chancellor speaks of the 
 legislature having power to "transfer the legal title from the naked 
 trustees to the cestui que trust, after the latter were incorporated." 
 (7 Paige 82.) In Gable v. Miller, the chancellor decided that the 
 property of the corporation was held in trust for the support of the 
 worship of God by a church to be in a particular connection ; and for 
 teaching certain particular doctrines. (10 Paige 649.) Senator 
 Porter, in the same cause, in deliving an opinion in the court for the 
 correction of errors, in favor of sustaining the decree, considered those 
 members of the church who had remained faithful to their allegiance 
 to the government of the church as "the rightful members of the church, 
 and the only ccstuis que trust of the property held for the use of the 
 church." (2 Denio 568.) In Bowden v. McLeod, Vice-Chancellor 
 McCoun thought equity would exercise jurisdiction over the property 
 of religious societies, as being trust property. In that case, by a 
 special act, the minister, elders and deacons were constituted trustees for 
 life, (i Edw. Ch. Rep. 588. And see 16 Mass. 495, 505, 510.) By 
 the fourth section of the statute under which religious societies are in- 
 corporated, the trustees, as we have seen, take possession of and hold all 
 the estate, whether real or personal, and whether before held directly 
 by the church, congregation or society, or by some other person to 
 their use, and however acquired, or by whomsoever held ; and they 
 may purchase and demise, lease and improve the same for the use of 
 the church, congregation or society, or other pious uses. * * * 
 
 The legal estate is clearly in the trustees, and they are to manage 
 the same, and regulate and order all matters relating to the temporal 
 concerns and revenues of the church, congregation or society. It is 
 said they hold the property in trust, and this is so stated in the plead- 
 ings. But I think not in the ordinary sense of that expression. They 
 too, individually, are usually cestuis que trust, only holding the legal 
 estate while in office, but in the management of it, and in everything 
 relating to their responsibility, they are upon the same footing with 
 the officers of any incorporated company, and liable for fraud or neg- 
 ligence, or gross mismanagement. Mere trustees are liable for these, 
 but in this case the trustees are, as to the management of the prop- 
 erty, more properly officers or agents, and with a broader discretion 
 in some respects than mere trustees. (Ang. & Ames on Corp., 
 306-7.) * * * 
 
 This brings us to the great question in this cause : are the defend- 
 ants, or any of them, violating the trust reposed in them, or their 
 duty, by adhering to and supporting Dr. Bullions? For, if that is so, 
 although a court of chancery can not remove them, and can not divest 
 them of this property, it can compel them to do their duty in relation 
 to it. * * * 
 
 Upon this examination of the subject, it seems to me that certain 
 general rules are applicable to these institutions when incorporated
 
 212 ROBERTSON V. BULLIONS. 39 
 
 
 
 under the third section of the act that chancery has no power to dis- 
 franchise one of the members, nor to remove the trustees or declare 
 their election void ; nor direct who shall vote ; or in any way interfere 
 with their election. This I have already very fully considered ; that 
 the trustees may be restrained from wasting the property, and from 
 such management of it as the court can clearly see, unreasonable and 
 unconscientiously deprives the society, or some part of it, of its enjoy- 
 ment ; and also from applying it to the promotion of tenets clearly op- 
 posed and adverse to the fundamental principles of the faith and doc- 
 trine professed by the church or society at the time the corporation 
 purchased the property. But the exercise of this jurisdiction should 
 generally be restrictive, and not mandatory ; for the statute is their 
 guide and authority for the future, and gives a very broad margin for the 
 exercise of discretion and religious freedom. (Lord Cottenham in 
 The Attorney-General v. Shore, 1 in the House of Lords ; Lord Broug- 
 ham in Milliganv. Mitchell; 2 Lane v.Newdigate, loVes. 193;) that the 
 support of particular doctrines, or systems of worship or government, 
 or a connection with some particular judicatory, may be made a con- 
 dition in a grant or donation, but if no such condition be expressed, 
 none should be implied, except as to cardinal points. This last prin- 
 ciple, I think, may be deduced from the cases already cited, particu- 
 larly The Attorney-General v. Pearson, 3 The Attorney-General 
 v. Shore, 1 The Attorney-General v. Drummond, 4 Craigdallie v. 
 Aikman, 5 Milligan v. Mitchell, 2 Porter v. Clark, 6 Miller v. Gable, 7 
 Baptist Church v. Witherell, 8 Lawyer v. Cipperly, 9 The Presbyte- 
 rian Church v. Johnston. 10 It is hardly necessary to remark that, 
 in Deun v. Bolton, 11 the office bearers of the church were, 
 by statute, ex officio trustees, and of course a deposition of 
 the former would be an amotion of the latter. Another general 
 rule is, that the church or spiritual body is authorized to call the min- 
 ister, either by itself or by some other mode, according to usage. In 
 order to reach the revenues of the corporation, that call must be rati- 
 fied by the congregation or body entitled to elect trustees, by fixing 
 the salary of the minister; and then the trustee may apply the reve- 
 nues to his support. * * * 
 
 But whether the use of the house by a majority of the congrega- 
 tion under the ministry of the defendant, Dr. Bullions, is such an act 
 as that the minority can complain in this court, and ask for restrictive 
 measures, is a point of much difficulty. * * * It must be remem- 
 bered that this associate church adheres to the presbyterial form of 
 government. (Dec. and Tes., p. 3, art. 8, Ch. Gov. andDis.,p. i, 
 art. 4; p. 3, art. 12.) And after the cases of Diefendorf v. Re- 
 formed Calvinistic Church, 12 and The Dutch Church v. Bradford, 13 I 
 
 1 7 Sim. 309 n, 9 01. & F. R. 355. 7 2 Denio 492. 
 2 1 Myl. & K. 446, 8 Myl. & C. 72, 8 3 Paige 296. 
 
 433,511. 9 7 Paige 281. 
 
 3 7 Sim. 290. 10 1 Watts & S. 9. 
 
 4 1 Con. & L. 210. J1 7 Halst. 206. 
 
 6 1 Dow's P. C. 1. 12 20 John. 12. 
 
 6 2 Sim. 520. 13 8 Cowen 457.
 
 39 ECCLESIASTICAL AND LAY CORPORATIONS. 213 
 
 do not see how we can look beyond the decision of the synod. All the 
 authorities agree that the civil courts can not, upon the merits, over- 
 hale the decisions of ecclesiastical judicatories in matters properly 
 within their province. Dr. Bullions himself took the case to the synod, 
 and the deposition of a minister is purely an ecclesiastical matter ; 
 though the effect of that deposition upon civil rights is quite another 
 thing. The church judicatories had power to depose him, but they 
 could not sequester the property of the corporation, nor compel the 
 congregation, against the will of a majority, and the trustees, to re- 
 ceive a minister. The defendants, in their answer, admit that a min- 
 ister who is under rightful sentence of excommunication can not be 
 permitted to occupy the pulpit or administer divine ordinances. Our 
 courts have, as we have seen, declared that such dissolution of the 
 connection between pastor' and flock discharges the civil contract, 
 even the individual subscriptions for the support of the former. It is 
 true, a majority of the church in those cases were probably opposed 
 to the minister, but the decisions were not put upon that ground. Dr. 
 Bullions must, for the purpose of this case, be deemed deposed from 
 the office of the holy ministry; and, notwithstanding a large majority 
 of this enlightened society still consider him in good standing, a mi- 
 nority of the corporators are of the opposite opinion, and, giving full 
 effect to proceedings against him, insist that his employment is a griev- 
 ance that deprives them of a reasonable enjoyment of the corporate 
 property, which can be redressed in this court. And with much hesi- 
 tation, I have come to the conclusion that, upon this point, the law is 
 with them. * * * 
 
 There must be a decree restraining the defendants from using the 
 temporalities of the corporation for the support of Dr. Bullions' min- 
 istry as long as he is under sentence of deprivation. All the other 
 portions of the decree which have been appealed from must be re- 
 versed. Neither party can have costs against the other on this 
 appeal. The complainants have asked too much, and neither side is 
 free from blame. The rule is, where both parties have claimed what 
 they are not entitled to, and each has succeeded as to part of the mat- 
 ters in litigation between them, to give costs to neither. (Crippen v. 
 Hermance, 9 Paige 211.) Nor am I disposed to burden the corpo- 
 rate funds with the costs, except the costs of putting in the answer by 
 the corporation. Each party must in all other respects bear their own. 
 
 It was stated on the argument that the complainants, under the 
 vice-chancellor's decree, had taken possession of and occupied the 
 church edifice. The defendants, who were trustees at the time of the 
 commencement of the suit, and their successors, are entitled to the 
 possession of the property of the corporation, but, under all the cir- 
 cumstances of this case, there should be no accounting for the mere 
 use of the property. 
 
 If there has been waste or destruction of property, that should be 
 made good. 
 
 PAIGE, P. J., concurred. 
 
 (Dissenting opinion of CADY, J., omitted.)
 
 214 THE BOARD, ETC., V. MIGHELS. 40 
 
 Note. See particularly 1819, Dartmouth College v. Woodward, 4 Wheat. 
 518, infra, p. 708; 1815, Phillips Academy v. King, 12 Maes. 546; 1823, Societv 
 for Propagating the Gospel v. New Haven, 8 Wheat. (U. S.) 464; 1864, Board 
 of Education v. Greenbauru, 39 111. 610 ; 1893, Bakewell v. Board of Education, 
 (111.), 33 N. E. Rep. 186; 1879 r Magdalen Hospital v. Knotts, 4 A pp. 
 Cas. 324 ; 1872, Gooch v. Association for Relief of Aged Females, 109 Mass. 
 558; 1895, Hibernian Benev. Soc. v. Kelly, 28 Ore. 173, 52 Am. St. Rep. 769; 
 1894, Philadelphia v. Masonic Home, 160 Pa. St. 572, 40 Am. St. Rep. 736; 
 1880, Hennepin Co. v. Brotherhood, etc., 27 Minn. 460, 38 Am. Rep. 298 ; 
 1874, Mitchell v. Treasurer of Franklin Co., 25 Ohio St. 143; 1890, Wagner 
 Free Institute v. Philadelphia, 132 Pa. St. 612, 19 Am. St. Rep. 613; 1888, 
 Fire Ins. Patrol v. Boyd, 120 Pa. St. 624, 6 Am. St. R. 745; 1822, American 
 Asylum v. Phoanix Bank, 4 Conn. 172, 10 Am. D. 112; 1876, McDonald v. 
 Massachusetts Gen'l Hospital, 120 Mass. 432, 21 Am. Rep. 529 ; 1883, Coit v. 
 Comstock, 51 Conn. 352, 50 Am. Rep. 29; 1893, Sears v. Chapman, 158 Mass. 
 400, 35 Am. St. Rep. 502; 1889, Coe v. Washington Mills, 149 Mass. 543 ; 1886, 
 Howe v. Wilson, 91 Mo. 45, 60 Am. Rep. 226; '1880, Rhymer's Appeal, 93 Pa. 
 St. 142, 39 Am. Rep. 736, n. 738; 1881, Manners v. Philadelphia Library Co., 
 93 Pa. St. 165, 39 Am. Rep. 741, note 748; 1882, Bangor v. Masonic Lodge, 73 
 Me. 428, 40 Am. Rep. 369. 
 
 Sec. 40. Same. Civil corporations are : 
 
 1. Quasi. 
 
 2. Pure or complete. 
 
 THE BOARD OF COMMISSIONERS OF HAMILTON COUNTY v. 
 
 MIGHELS. 1 
 
 1857. IN THE SUPREME COURT OF OHIO. 7 Ohio State Reports 
 
 109-125. 
 
 In error to the superior court of Cincinnati. 
 
 BRINKERHOFF, J. The defendant in error brought suit in the 
 superior court of Cincinnati against the plaintiffs in error, and, on the 
 I4th of May, 1855, filed therein the following petition, to wit: "The 
 plaintiff, a citizen of the state of Ohio, and a resident of the county of 
 Hamilton, says that the defendants, the board of county commission- 
 ers of the county of Hamilton, in the state of Ohio, being authorized 
 by law, in the exercise of their discretion, to erect a good and con- 
 venient court-house, upon such plan as they might project, in the city 
 of Cincinnati, the seat of justice of such county, were, on the eleventh 
 and twelfth days of December, 1854, engaged in the erection of such 
 court-house, in the city of Cincinnati, which building was designed 
 and then used for the holding of the courts of the county of Hamil- 
 ton, and for the offices of the sheriff, clerk of the courts and certain 
 other county officers, under the direction and sanction of the defend- 
 ants. On the eleventh and twelfth days of December, 1854, the 
 rooms of the northwest corner of said building, on the first floor, were 
 used, under the direction of the defendants, for the holding of the 
 criminal court of Hamilton county, and a certain trial was then and 
 there had, at which the plaintiff was required, by a writ of subpena, 
 to appear and testify, and was detained under the order of the court, as 
 such witness, till night. In the erection of such court-house, upon the 
 
 1 Arguments and part of opinion omitted.
 
 4O QUASI AND COMPLETE CORPORATIONS. 21$ 
 
 plan projected by the defendants, there was a certain stairway from the 
 first to the second floor, opposite to the main entrance into the building, 
 which persons in their egress from the said court-room by the usual 
 passages into the street must necessarily pass, and under said stair- 
 way was a large opening into the cellar, which the defendants wrong- 
 fully and unjustly permitted to remain open, unprotected and 
 uncovered, and wrongfully and negligently omitted in any manner to 
 guard the same, so as to prevent persons passing along said passage 
 from falling into such opening, and wholly omitted to light the same 
 at night, by reason whereof, and for want of such light and protection 
 over said opening, the plaintiff, being such witness required to be 
 in such building, and necessarily detained there in obedience to the 
 order of said criminal court of Hamilton county, till after nightfall on 
 the twelfth day of December, 1854, in passing along said passages on 
 his way from the court-room to the street, necessarily and unavoidably 
 slipped and fell into said opening, and thereby the thigh and two ribs 
 of the plaintiff were fractured and broken, and the plaintiff became 
 sick, lame and disordered, and so remained for a long space of time, 
 during all which time he suffered great pain, and was prevented from 
 attending to and transacting his necessary and lawful business, and 
 was obliged to expend and did expend a large sum of money in en- 
 deavoring to get healed of said wound, sickness or disorder. The 
 plaintiff, therefore, demands judgment against the defendants for 
 $10,000 damages." 
 
 To this petition the defendants below demurred on the ground that 
 it did not state facts sufficient to constitute a cause of action. On 
 hearing, the demurrer was overruled and leave was taken to answer. 
 An answer was filed, admitting a part of the material facts alleged 
 in the petition, and denying the remainder. The case was tried by a 
 jury who found the issues in favor of the plaintiff below, and assessed 
 his damages at $7,750. After motions for a new trial, and in arrest 
 of judgment were made, heard and overruled, judgment was entered 
 on the verdict. No bill of exceptions was taken to any ruling of the 
 court below on the trial. 
 
 The case having been reviewed on error by the superior court at 
 general term, and the judgment there affirmed, a petition in error is 
 filed here to reverse that judgment of affirmance. 
 
 All the errors assigned or assignable on the record present but the 
 single question which was originally made by the demurrer to the 
 petition, z. <?., does the petition state facts sufficient to constitute a 
 cause of action ? If it does, there is no error apparent on this record ; 
 if it does not, the judgment is erroneous and must be reversed. 
 
 It will be noticed that this is an action brought by an individual 
 plaintiff against the commissioners of a county in their official or 
 quasi corporate capacity, to recover damages resulting from the negli- 
 gence and misconduct of those officers. No claim is made against 
 those officers as individuals, but the recovery is sought against the 
 county, and if this judgment can be maintained, it must in some way 
 be met and paid by the people of Hamilton county. And thus we
 
 2l6 THE BOARD, ETC., V. MIGHELS.- 40 
 
 are presented with the question, is a county, or, in other words, the 
 people of a .county, liable in an action sounding in tort, for the per- 
 sonal misconduct or negligence of the county commissioners while in 
 the performance of their official functions? 
 
 If a county be thus liable, that liability must be derived either ex- 
 pressly or by necessary implication from the provisions of some statute, 
 or must rest on the principles of the common law. 
 
 [After holding there was no statutory liability proceeds:] 
 
 2. Is the action maintainable on the principles of the common law? 
 In entering on this inquiry, it is but justice to ourselves to say, that, 
 assisted by the researches of diligent counsel, we have given it an un- 
 usual share of labor and attention ; and this not only because of the 
 importance of the question itself, but for the reason that the conclusion 
 to which our minds have been compelled is in conflict with a case 
 (Commissioners of Brown County v. Butt, 2 Ohio Rep. 348) decided 
 by judges for whose judgment we entertain that degree of respect 
 which renders even involuntary and irresistible dissent from their con- 
 clusions reluctant and self-distrustful. 
 
 For the purpose of maintaining this action, an effort has been made 
 in argument to assimilate counties to natural persons and municipal 
 and other corporations proper. Now it is conceded, that if the neg- 
 ligence, and consequent injury to the plaintiff below had been the act 
 of a natural person in the construction of a private building, to which 
 the plaintiff below had been invited, the party guilty of the negligence 
 would properly be liable in damages. So, also, it now seems to be 
 well settled that, had the defendants below been the agents of a muni- 
 cipal or other corporation proper, and had the plaintiff below been 
 injured through like negligence and under like circumstances, the cor- 
 poration might be held to answer for the injury. And why? Because 
 where there is a wrong there ought to be a remedy ; persons, whether 
 natural or artificial, are bound so to use their own property and con- 
 duct their own affairs as not to injure others ; and where an act is 
 done to the injury of another by a natural person in the pursuit of his 
 own interests, or, through its agents, by an artificial person, a corpo- 
 ration proper, which is called into existence, either at the direct solici- 
 tation or by the free consent of the persons composing it, for the pro- 
 motion of their own local and private advantage and convenience, 
 and which can work only through agents, such natural or artificial 
 person is, on every principle of justice and enlightened reason, bound 
 to rectify the consequence of his own misfeasance. And it is freely 
 admitted that if counties are in all material respects like municipal 
 corporations proper, and may be fairly classed with them, then this 
 action ought to be maintained. But how is the fact ? This question 
 is vital, and on its solution the case must depend. 
 
 As before remarked, municipal corporations proper are called into 
 existence, either at the direct solicitation or by the free consent of the 
 people who compose them. 
 
 Counties are local subdivisions of a state created by the sovereign 
 power of the state, of its own sovereign will, without the particular
 
 40 QUASI AND COMPLETE CORPORATIONS. 2 1/ 
 
 solicitation, consent or concurrent action of the people who inhabit 
 them. The former organization is asked for, or at least assented to 
 by the people it embraces ; the latter is super-imposed by a sovereign 
 and paramount authority. 
 
 A municipal corporation proper is created mainly for the interest, 
 advantage and convenience of the locality and its people ; a county 
 organization is created almost exclusively with a view to the policy of 
 the state at large, for the purposes of political organization and civil 
 administration, in matters of finance, of education, of provision for 
 the poor, of military organization, of the means of travel and trans- 
 port, and especially for the general administration of justice. With 
 scarcely an exception, all the powers and functions of the county 
 organization have a direct and exclusive reference to the general policy 
 of the state, and are, in fact, but a branch of the general administration 
 of that policy. Ward v. County of Hartford, 12 Conn. 406; Boalt v. 
 Commissioners of Williams County, 18 Ohio Rep. 16; C. W. & Z. 
 Railroad v. Commissioners of Clinton County, i Ohio St. Rep. 89. 
 
 The idea that the board of county commissioners is the agent of the 
 county or of its people is prominently advanced and pressed on our 
 attention. That board is, in some sort, the agent of the county, it is 
 true ; inasmuch as it alone is authorized to sue and be sued in respect 
 to contracts growing out of the county organization. There is an ad- 
 ministrative necessity that some name should be employed as the rep- 
 resentative of the public interests involved in such suits ; and that of 
 the board of county commissioners has, by law, been designated for 
 that purpose ; but the name of the county auditor, or the name of the 
 county itself, had the legislature chosen so to prescribe, would have 
 answered the same purpose quite as well ; and, in fact, we think, has 
 no special weight or significance. 
 
 But, it is said, the members of the board of county commissioners 
 are chosen by the electors of the county, and hence the board is to be 
 regarded as the agents of the county, for whose torts in the perform- 
 ance of artificial duties the county ought to be responsible. True, the 
 people of the county elect the board of county commissioners ; but 
 they also elect the sheriff and treasurer of the county. Are the peo- 
 ple of the county, therefore, responsible for the malfeasance in office 
 of the sheriff, or for the official defalcations of the county treas- 
 urer? This will not be pretended. And yet, if this case is to rest on 
 the principles governing the relation of principal and agent, wherein is 
 the distinction between the case at bar and the case supposed? We 
 confess our inability to discover any such distinction. In the case of 
 municipal corporations proper, the electors are, mediately or immedi- 
 ately, invested with very ample control over their agents, not only as 
 to what shall be done, but how it shall be done, and by whom it shall 
 be done ; they may exact such guarantees as they deem proper for 
 their own indemnity, and may prescribe by-laws for their government. 
 As between the commissioners and the electors of a county all this is 
 wanting. All his powers and duties are prescribed by the supreme 
 legislature ; and the electors can exercise no control over him whatso-
 
 2l8 THE BOARD, ETC., V. MIGHELS. 40 
 
 ever, except such as springs from the bare fact of election ; and to this 
 extent they can control a sheriff or treasurer as well as a commissioner. 
 
 Chancellor Kent (i Com. 572-3) says, that "a great proportion of 
 the rules and maxims which constitute the code of the common law, 
 grew into use by the application of the dictates of natural justice and 
 cultivated reason to particular cases;" and that "the best evidence" 
 of what that law is, "is to be found in the decisions of courts of jus- 
 tice, contained in books of reports, and in the treatises and digests of 
 learned men." 
 
 Now, on what principles of "natural justice," or of "cultivated 
 reason," aside from positive statute, the people of a county should be 
 held responsible for the personal or official misconduct of a county 
 commissioner, we are wholly unable to perceive. 
 
 But how stands the case upon authority, "by the decision of courts 
 of justice, and the treatises of learned men?" 
 
 The county organization, substantially similar in all its general 
 features and functions, has existed in England from the earliest times, 
 and in all the states of this Union, with perhaps one or two exceptions, 
 more nominal than real, from the period of their settlement; yet the 
 researches of diligent counsel have failed to furnish a single case 
 where an action has been maintained against a county in a case like 
 the one before us, except that of the Commissioners of Brown County 
 v. Butt, before cited, and which was recognized as authoritative in 
 Richardson v. Spencer, 6 Ohio Rep. 13, but, apparently without any 
 particular examination of the principles on which it was based, or of 
 the authorities bearing upon them. 
 
 It is said that the court below sustained the action in the case before 
 us, on the authority of Commissioners of Brown County v. Butt ; and 
 we concur with the court below in the opinion that if that case was 
 properly decided this action must be maintained. We have looked in 
 vain for any substantial distinction between them. In that case, the 
 debtor, having been surrendered by his appearance bail, and commit- 
 ted to the custody of Butt, who was sheriff of Brown county, escaped 
 by reason of there being no jail in Brown county, and the sheriff not 
 being by law at liberty to imprison the debtor elsewhere than in the 
 jail of the county. The creditor having recovered against him, as 
 sheriff, for the escape, Butt brought his action on the case against the 
 board of commissioners of the county to recover the damages he had 
 thus sustained by reason of its neglect of duty to provide a jail. The 
 court, Burnet, J., dissenting, held the action to be well brought, on 
 the ground that the commissioners were the agents and representatives 
 of the county. In that opinion, for the reason before indicated, as 
 well as on the authorities about to be noticed, we find ourselves unable 
 to concur. We can not but think that county commissioners are not 
 agents or representatives of the county in any such sense or manner 
 as to render the people of the county justly answerable for their neg- 
 lect. The reported opinion of the majority of the court in that case 
 may furnish very abundant reason why the utter neglect of county 
 commissioners to furnish a jail, and. the sheriff himself being in no
 
 4O QUASI ANlTcOMPLETE CORPORATIONS. 219 
 
 fault, a plea of these facts ought to be held a good bar to an action 
 for an escape, and the creditor turned over to an action against the 
 commissioners personally, or why, if such plea be held bad, the sheriff 
 might maintain his action against the county commissioners in their 
 individual capacity, for the personal injury resulting to him from their 
 neglect and as to these alternatives, the question not being directly 
 before us, we express no opinion but it affords to our minds no satis- 
 factory reason why the people of a county should be held pecuniarily 
 responsible for the delinquencies of officers over whose acts that peo- 
 ple have no supervision or control whatsoever. And the case itself, 
 as before remarked, stands alone. At the time it was made it was 
 unsupported by any reported case ; and, so far as we can ascertain, it 
 remains still unsupported by any case outside of Ohio, while the cases 
 on the other side are uniform and so numerous as to render a particu- 
 lar notice of all of them too tedious to be attempted. 
 
 The leading case on this subject seems to be that of Russell v. The 
 Men of Devon, 2 T. R. 667, which was an action on the case against 
 the men dwelling in the county of Devon, to recover satisfaction for an 
 injury done to a wagon of the plaintiff in consequence of a bridge 
 being out of repair, which ought to have been repaired by the county ; 
 to which two of the inhabitants, for themselves and the rest of the 
 men dwelling in that county, appeared and demurred generally. On 
 hearing, the court of king's bench unanimously sustained the demur- 
 rer ; and this, apparently, on three grounds: (i) That there was 
 no precedent for such an action. (2) By reason of the inconvenience 
 resulting from the multiplicity of actions for contribution to which 
 a recovery and levying of the judgment upon the inhabitants of the 
 county would give rise ; and, (3) That the county of Devon had no 
 fund out of which satisfaction could be made. And this last reason, 
 it seems to us, applies with great weight to the case in hand. It is 
 true, counties in Ohio have a treasury, and in it various funds. But 
 those funds are all raised for specific purposes ; to those purposes they 
 must be devoted ; the commissioners are authorized to levy no tax, ex- 
 cept for such purposes as are authorized by statute ; and we have 
 no statute authorizing the levy of a tax to satisfy such a judgment as 
 this. And in Boalt v. Commissioners of Williams County, before 
 cited, it was decided that a bill in chancery would not lie against a 
 county to subject equities, and, in the opinion of the court in that 
 case, it is assumed, arguendo, as indisputable, that county bridges, 
 court-house, public offices, jail or poor-house, can not be sold on exe- 
 cution at law. 
 
 In Riddle v. The Proprietors of the Locks and Canals on Merri- 
 mack River, 7 Mass. Rep.. 169, 1 Parsons, C. J. , delivering the opin- 
 ion of the court, clearly lays down the principle on which we proceed. 
 He says : "We distinguish between proper aggregate corporations, and 
 the inhabitants of any district who are by statute invested with particular 
 powers without their consent. These are in the books sometimes called 
 quasi corporations. Of this description are counties and hundreds in 
 
 ' ft'nra, p. 47.
 
 22O THE BOARD, ETC..V. MIGHELS. 40 
 
 England ; and counties, towns, etc., in this state. Although quasi cor- 
 porations are liable to information or indictment, for a neglect of 
 public duty, imposed on them by law ; yet it is settled in the case of 
 Russell et al. v. Inhabitants of the County of Devon, that no private 
 action can be maintained against them for a breach of their corporate 
 duty, unless such action be given by statute. And the sound reason is 
 that having no corporate fund and no legal means of obtaining one, 
 each corporator is liable to satisfy any judgment rendered against the 
 corporation. This burden the common law will not impose, but in 
 cases where the statute is an authority, to which every man must be 
 considered as assenting. But in regular corporations, which hav'e, or 
 are supposed to have, a corporate fund, this reason does not apply." 
 
 The same doctrine is asserted by the same court in Mower v. In- 
 habitants of Leicester, 9 Mass. Rep. 247 ; and is recognized as settled 
 law by Angell & Ames on Corporations, section 630, note. So in 
 South Carolina, 2 Nott & McCord 537 ; Young v. Commissioners of 
 the Roads; and White v. City Council, 2 Hill's Rep. 571. So in 
 Connecticut, Ward v. The County of Hartford, 12 Conn. 404. The 
 case of the Freeholders of Sussex County v. Strader, 3 Harr. N. J. 
 Rep. 158, before alluded to, was an action brought by Strader against 
 the county of Sussex, New Jersey, to recover damages for an injury 
 to a team of the plaintiff, on account of a defect in a public bridge 
 which the chosen freeholders of the county were bound to keep in 
 repair. In that case the court not only sustain the doctrine and dis- 
 tinction laid down 'in the Men of Devon, and by Chief Justice Parsons 
 in 7th Mass. ; but Chief Justice Hornblower, in delivering his opinion, 
 supposes, and remarks upon almost the very case before us. He says : 
 "It is the duty, for instance, of the board of freeholders, to erect and 
 keep in repair court-houses and jails ; a neglect to do so may occasion 
 great inconvenience, perhaps positive loss or injury, to some individual 
 whose business or duty requires his attendance at court ; the building, 
 by being old and out of repair, may give way, and break a man's 
 limbs, or occasion him an injury in some other way, but no one will 
 pretend that in such a case an action would lie by the person injured 
 against the county." 
 
 The same doctrine was recognized and applied in Illinois, in Hedges 
 v. The County of Madison, i Oilman's Rep. 567, by the supreme 
 court of the United States in Fowle v. Common Council of Alexan- 
 dria, 3 Peters 409, and is also applied and strongly urged and approved 
 by the supreme court of New York in the able opinion of Selden, 
 J., in Morey v. The Town of Newfane, 8 Barb. S. C. Rep. 645. 
 
 It is undoubtedly competent for the legislature to make the people 
 of a county liable for the official delinquencies of the county commis- 
 sioners, and, if they think it wise and just, without any power in the 
 people to control the acts of the commissioners, or to exact indemnity 
 from them ; but this has not yet been done, and we think that such lia- 
 bility can not be derived from the relation of the parties either on the 
 principles or the precedents of the common law. 
 
 In conclusion, and at the risk of the penalties of tautology, I repeat,
 
 41 PUBLIC, QUASI-PUBLIC AND PRIVATE CORPORATIONS. 221 
 
 that while, both upon principle and authority, we find ourselves com- 
 pelled to overrule the case of The Commissioners of Brown County 
 v. Butt, as having been erroneously decided, we do so with extreme 
 reluctance, and with all respect for the judgment and veneration for 
 the memory of the judges who decided it, but, with our convictions, 
 we could not do otherwise, and, in overruling it, we are satisfied we 
 are contributing to place the law of Ohio upon a footing of sound 
 principle, as well as in harmony with that of other states whose juris- 
 prudence, like our own, rests on the basis of common law. 
 
 Judgment reversed. 
 
 BARTLEY, C. J., and SWAN, BOWEN and SCOTT, JJ., concurred. 
 
 Note. 1816, Rumford School District v. Wood, 13 Mass. 193 ; 1823, Todd v. 
 Birdsall, 1 Cowen (N. Y.) 260; 1834, Andrews v. Estes, 11 Maine 267, 26 Am. 
 Dec. 521 ; 1835, McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 689; 1837, Chase 
 v. Merrimac Bank, 19 Pick. (Mass.) 564, 31 Am. Dec. 163; 1841, Connell v. 
 Woodward, 5 How. (Miss.) 665, 37 Am. Dec. 173; 1843, Gaskill v. Dudley, & 
 Met. (Mass.) 546, 39 Am. Dec. 750; 1873, Whitney y. Stow, 111 Mass. 368; 
 1878, Talbot Co. v. Queen Anne Co., 50 Md. 245. Joint stock companies are 
 sometimes called private quasi corporations, i. e., they have some of the feat- 
 ures of corporations, but not all. Morawetz Corp., 6, and cases cited. 
 See case cited supra, p. 110. 
 
 Sec. 41. (^) Corporations in their relation to the state are : 
 
 1 . Purely public. 
 
 2. Quasi-Public. 
 
 3. Private. 
 
 THE BANK OF THE STATE OF SOUTH CAROLINA v. GIBBS, 
 
 EXECUTOR. 
 
 1825. IN THE COURT OF APPEALS OF SOUTH CAROLINA. 3 McCord 
 (S. Car.) Reports *37y. 
 
 The question in this case was, whether a simple contract debt due 
 to the Bank of the State of South Carolina was a debt due to the 
 public, within the provisions of the executor's act (Pub. Laws, 494), 
 and as such entitled to a preference, as a public debt. 
 
 NOTT, J. The act of the legislature, upon the construction of 
 -which the decision of this case depends, directing the order in which 
 the debts due by a testator or intestate shall be paid, provides, "that 
 the funeral and other expenses of the last sickness, charges of probate 
 of the will, or of letters of administration, shall be first paid ; next, 
 debts due to the public," etc. 
 
 The question now is, whether the debt in this case is in the sense 
 of the act a debt due to the public. There is nothing on the face of 
 the proceedings which will authorize us to view it in that light, for we 
 must look beyond the case itself to see that the state has any interest 
 in it. It is not then a debt due to the public ; but it is due to the cor- 
 poration, though the money, when received, may be for the use of 
 the state. In the case of the United States Bank against the Planters' 
 Bank of Georgia (9 Wheat. 907), Chief Justice Marshall, who de-
 
 222 M'KIM V. ODOM. 42 
 
 livered the opinion of the court, said: "The suit is against a corpo- 
 ration, and the judgment is to be satisfied by the property of the cor- 
 poration and not by that of the corporators. The state does not, by 
 becoming a corporator, identify itself with the corporation. The 
 Planters' Bank of Georgia is not the state of Georgia, although 
 the state holds an interest in it. It is," he says, "a sound principle, 
 that when a government becomes a partner in a trading company, it 
 divests itself, so far as concerns the transactions of that company, of 
 its sovereign character, and takes that of a private citizen." I can 
 not distinguish that case from the one now under consideration. It is 
 true, the state of Georgia held but a part of the interest in that bank, 
 and the state of South Carolina owns the whole in this. But, never- 
 theless, we may, with truth, say, in the language of that opinion, the 
 Bank of the State of South Carolina is not the state of South Caro- 
 lina ; it is only a corporation created for particular purposes, possess- 
 ing the same powers and privileges of other corporations, and no 
 more. The state did not transfer any portion of its sovereignty to 
 this corporation, nor communicate to it any of its privileges or prerog- 
 atives, but has placed it on the same level with other corporate bodies, 
 with the same privilege of suing, and liability of being sued, as an in- 
 cident to such corporations. I am of opinion, therefore, that the 
 same principle by which the case referred to was governed is appli- 
 cable to this case, and that the bank is not entitled to any such prefer- 
 ence as is contended for and that is the opinion of the court. 
 The motion is therefore refused. 
 
 Note. See cases cited to People v. Morris, infra, pp. 229, 234. 
 
 Sec. 42. Same. 
 
 McKIM v. ODOM. 1 
 
 1831. IN THE HIGH COURT OF CHANCERY OF MARYLAND. 3 Bland 
 Chancery (Md.) 407-433. 
 
 [This bill was filed on the 23d of June, 1827, by William S. Moore 
 and John McKim, Jr., John Odom, George Law, William G. Har- 
 rison, William F. Anderson and the president and directors of the 
 Franklin Bank of Baltimore. The bill states that the plaintiff, Moore, 
 and the defendant, Odom, being joint and equal owners of the 
 schooner Beauty, sent her on a voyage from Baltimore to Montevideo, 
 under Odom as master ; that, for the better management of the con- 
 cerns of their vessel, they employed the defendants, Law & Harrison, 
 then partners in trade, as her ship's husband ; that it was agreed by 
 these owners, before their vessel sailed, that she might be sold, and 
 she was sold accordingly, at Montevideo, for about $12,000; and 
 there were remitted in specie, by the United States ship Cyane, as a 
 part of the proceeds of sale, about $9,000, with a bill of lading for 
 
 ^Statement of facts abridged. Arguments omitted; much of the opinion 
 omitted.
 
 42 PUBLIC, QUASI-PUBLIC AND PRIVATE CORPORATIONS. 223 
 
 the defendant Law; that on the roth of April, 1826, the plaintiff 
 Moore assigned all his interest in the schooner and her earnings to the 
 plaintiff McKim, of which Law was duly notified ; that afterward and 
 immediately on the arrival of the ship Cyane, the defendant Law, by 
 means of his bill of lading, obtained possession of the specie remitted, 
 had it exchanged in Philadelphia, and thence transmitted to Baltimore, 
 where he had the greater part of it deposited in the Franklin Bank, 
 in the name of the defendant Anderson, 'in trust for his, Law's, use; 
 that the object of the defendant Law in withholding, and thus secretly 
 depositing the proceeds of sale, was fraudulently to compel the 
 plaintiff McKim to submit to certain unjust and improper charges, 
 which he, Law, as ship's husband, claimed a right to have allowed 
 and deducted from those proceeds. Upon which the plaintiffs prayed 
 relief and an injunction to stay the money so deposited in the hands 
 of the bank. An injunction was granted accordingly. 
 
 On the 1 2th of December, 1828, the plaintiffs, by their petition, 
 stated that the president and directors of the Franklin Bank of Balti- 
 more had been regularly returned summoned, and had refused to 
 answer the amended bill, whereupon the plaintiffs prayed that a 
 distringas might be issued against that corporation.] 
 
 BLAND, Chancellor. * * * The mode of proceeding against 
 contumacious natural persons, who neglect or refuse to answer, is well 
 established and sufficiently energetic, but the course of proceeding for 
 that purpose against artificial bodies or corporations is different, more 
 feeble and much more tardy, there being no legislative provision for 
 enforcing an appearance or answer from such defendants. 
 
 So far as I have been able to ascertain, this is the first instance of 
 an application to this court for coercive process against a body politic. 
 Coi-porations have latterly become very numerous, and new ones are 
 created at almost every session of the legislature ; the matter now sub- 
 mitted for determination, therefore, has an importance much above 
 the interests of the case out of which it arises, and requires to be care- 
 fully considered with a view to the course of proceeding in future. 
 
 Under the provincial government corporations were framed and called 
 into existence, as in England, either directly by or with the immedi- 
 ate sanction of the lord proprietary or the monarch. But, however 
 they may have been originated formerly or elsewhere, it is certain 
 that they can now only be established here by the authority of the 
 legislature. The multitude of bodies politic that have been created 
 either by the government of the province or of the republic, most of 
 which still subsist, may be considered, in reference to their objects, as 
 belonging to one or other of three distinct classes. 
 
 [Public.] The first kind are such as relate merely to the public police, 
 which, by assuming upon themselves some of the duties of the state, 
 in a partial or detailed form, and having neither power nor property 
 for the purposes of personal aggrandizement, can be considered in no 
 other light than as the auxiliaries of the government of the Republic; 
 and consequently, as the secondary and deputy trustees and servants 
 of the people. The right to establish, alter or abolish such corpora-
 
 224 M'KIM v. ODOM. 42 
 
 tions seems to be a principle evidently inherent in the very nature of 
 the institutions themselves, since all mere municipal regulations 
 must, from the nature of things, be subject to the absolute control of 
 the government. These institutions, being, in their nature, the auxil- 
 iaries of the government in the great business of municipal rule, can 
 not have the least pretention to sustain their privileges, or their exist- 
 ence, upon any thing like a contract between them and the govern- 
 ment, because there can be no reciprocity of stipulation, and because 
 their objects and duties are incompatible with everything of the na- 
 ture of such a compact. 
 
 The power of acquiring and holding property, although almost 
 always given, is by no means a necessary incident to corporations of 
 this class; they may be established without any such capacity; as 
 in the instance of the commissioners for emitting bills of credit. 1 
 The preservation of morals, and the administration of justice are the 
 chief ends for which government has been instituted ; and infancy, 
 insanity, infirmity and helpless poverty have an undoubted claim 
 upon the protecting care of the republic. 2 Bodies politic of this 
 class, having these objects in view, are city corporations; 3 levy 
 courts; 4 county schools for the provincial or state government; 5 
 public colleges; 6 hospitals; 7 trustees of the poor of several coun- 
 ties, 8 etc. 
 
 [Private.] The second class of corporations are such as have no con- 
 cern whatever with the duties of the republic; nor in any manner 
 bound to perform any acts for its benefit ; but whose only object is 
 the personal emolument of its members. The corporators in such in- 
 stitution may also, in some sense, be considered as trustees; but then, 
 even in that character, they are the mere factors of individuals; and, 
 therefore, their resignation or removal can not divest or alter any of the 
 rights of the individuals they represented. Each member of such an 
 aggregation either was a proprietor at the commencement, or became 
 so during the existence of its incorporation ; and consequently, unless 
 he has aliened his right, must continue to be so after its dissolution. 
 A corporation not being, like a natural person, one of the elements of 
 society, of which government is formed, can only be considered as a 
 creature of the law. It is the law alone which gives to it a personality 
 distinct from that of each of its members, and confers on it the right to 
 act by its president, directors, or agents, in a manner analogous to 
 that in which the government itself acts by its regularly constituted 
 functionaries. This individuality of character, and the right so to 
 act is, then, nothing more than a portion of the power of the govern- 
 ment with which it has been invested. It is this power which is given 
 by the creation of a body politic, and which, by its extinguishment, is 
 resumed, and nothing more ; the rights of property vested in its 
 
 1 1769, ch. 14, 6. 5 1696. ch. 17 ; 1723, ch. 19. 
 
 'Montesq. Sp. Laws, b. 23, ch. 29. 6 April, 1782, ch. 8. 
 
 1708, ch. 7; 1796, ch. 68. 7 1797, ch. 102; 1816, ch. 156. 
 
 * 1804, ch. 73. 8 1768, ch. 29 ; 1785, ch. 15.
 
 42 PUBLIC, QUASI-PUBLIC AND PRIVATE CORPORATIONS. 22$ 
 
 several members, in all other respects, remain unaffe-ted by its dis- 
 solution. 
 
 It is remarkable that there is no instance of the creation of any 
 body politic of this description under the provincial government ; but 
 since the establishment of the republic they have increased and multi- 
 plied to a very large and still rapidly growing family. The examples 
 of this class of corporations are the insurance companies; 1 the Free 
 Mason societies; 2 the banks; 3 the manufacturing companies;* the 
 library companies, 5 etc. 
 
 [Quasi-public.] The third species of corporations partake, in many 
 respects, of the nature of the first two classes; and are such as have a 
 concern with some of the expensive duties of the state, the trouble and 
 charge of which are undertaken and defrayed by them,- in considera- 
 tion of a certain emolument allowed and secured to their members. 
 In cases of this kind there is certainly many of the material features 
 of a contract between the government and the corporation ; there is 
 manifestly a quid pro quo. But this contract, if it be so, is, and of ne- 
 cessity must be, like all others to which a government or state is a 
 party, one of imperfect obligation as regards the state; 6 and, as such, 
 subject to be dealt with by the government of the state as the public good 
 may require, on making a just compensation for any private property 
 which maybe taken for a public use. No bodies politic of this descrip- 
 tion were ever created under the provincial government ; but since our 
 independence, a great number of them have been called into existence ; 
 such as canal companies; 7 bridge companies; 8 turnpike road com- 
 panies; 9 etc. 
 
 In regard to the irrepealable nature of an act of incorporation, it may 
 be well not only to bear in mind the distinctions as explained above in 
 the text, according to which it is quite obvious that at least two out of 
 the three kinds of corporations, there described, may be modified or re- 
 pealed at the pleasure of the legislature, without the slightest interference 
 with the rights of private property of any kind, but that there must also 
 be a variety of cases in which corporations of the third class, such as turn- 
 pike roads, may have their stock, even considering it as private property, in- 
 definitely depreciated, or, in effect, totally annihilated, without, in the opin- 
 ion of any one, giving rise to a claim for compensation, as in cases where 
 mere private property is taken, by virtue of the government's power of emi- 
 nent domain, for public use. Without going into an argument, it will be suffi- 
 cient to state a caae which has occurred. By the act of 1812, chapter 78, the 
 legislature incorporated a company for making a turnpike road from Balti- 
 more to Washington ; under which the road was made, and the stock yielded 
 a considerable dividend annually. After which the legislature, by the act of 
 1830, chapter 158, authorized the construction of a railroad between the same 
 cities, and nearly parallel with the turnpike road, which was accordingly put 
 in operation. In consequence of which the annual dividends on the stock of 
 
 1 April, 1787, ch. 20. 
 
 2 1821, ch. 147. 
 
 1 1790, ch. 5. 
 
 * 1808, ch. 49. 
 
 6 1797, ch. 35. 
 
 6 Vattel Law Nation, Prelim., 17. 
 
 'November, 1783, ch. 23. 
 
 8 1795, ch. 62. 
 
 9 1797,ch. 65. 
 
 15 WIL. CASES.
 
 226 M'KIM v. ODOM. 42 
 
 The right and capacity to sue and be sued is an incident to bodies 
 politic of all descriptions ; l even to those which have been incor- 
 porated by and are located in another state or in a foreign country. 2 
 It is held to be incumbent upon every body politic, not being incor- 
 porated by a public law of which the court is bound to take notice, 
 Which comes into a court of justice as a plaintiff, if required, even 
 upon the general issue only being pleaded, to show the authority 
 under which it has assumed to act as a corporation. 3 When 
 called on as a defendant its corporate capacity is thus admitted, and 
 it appears by attorney and responds under its seal, or in the manner 
 specially prescribed to it. 4 But there is no legislative enactment 
 which directs in what mode a corporation of any kind may be com- 
 pelled to answer in case it should neglect or refuse to do so. 
 
 It is admitted on all hands that in a suit against a corporation none 
 of its members can be taken or personally punished, except, perhaps, 
 as a last resoi't, on account of any contumacy in their corporate 
 capacity. The only mode of proceeding, either to enforce an answer 
 or obedience to a decree, is by a distringas and sequestration of 
 the property of the body politic. 5 The state itself is regarded 
 in many respects as a mere body politic; 6 and in the various 
 instances where it becomes necessary to have it made a party to 
 the litigation, it is represented by its attorney-general ; in which cases 
 the course of the court merely allows that he should be attended with 
 a copy of the bill ; but he can not be forced to answer in any manner 
 whatever; 7 and therefore, if the bill can not be taken pro confesso 
 against the state, 8 the further progress of the case must await his 
 good pleasure. 
 
 Every corporation is and must be composed of, and conducted by, 
 natural persons ; yet the distinction between the natural and artificial 
 capacities and liabilities of its members has been drawn in such a man- 
 ner as to create the most serious inconvenience. A body politic, it 
 has been quaintly said, has no soul ; and therefore can not be called on 
 to answer under the obligation of an oath by which a natural person 
 may be bound. 9 To avoid this difficulty the court of chancery has 
 
 the turnpike road have been very materially diminished. Carrie v. The Mu- 
 tual Assurance Society, 4 Hen. & Mun. 315. 
 
 1 1 Blac. Com. 475. 
 
 z 1 Blac. Com. 385; 4 Com. Dig. 487; Henriques v. Dutch West India Com- 
 pany, 2 Ld. Raym. 1532; The National Bank of St. Charles v. De Bernales, 
 11 Com. Law Rep. 475. 
 
 8 4 Com. Dig. 487 ; McMechen v. The Mayor of Baltimore, 2 H. & J. 41 ; 
 Agnew v. The Bank of Gettysburg, 2 H. & G. 479. 
 
 4 1804, ch. 73, 6. 
 
 5 Bac. Abr. tit. Corporations, E. 2; Lynch v. The Mechanic's Bank, 13 
 Johns. 127. 
 
 6 1785, ch. 36. 
 
 7 Willis Eq. Plea. 7. 
 
 8 2 Mad. Pr. Chan. 335 ; 1 Fowl. Exch. Prac. 401 ; Nabob of the Carnatic v. 
 The East India Company, 1 Ves., Jun., 371; B. c. 1 Hoven. Supp. 149. 
 
 9 The case of Button's Hospital, 10 Co. 33.
 
 42 PUBLIC, QUASI-PUBLIC AND PRIVATE CORPORATIONS. 22/ 
 
 had recourse to a singular shift, which it is admitted rests on very 
 questionable principles ; it allows the secretary, bookkeeper or some 
 one or more of the chief members of the body politic to be made co- 
 defendants for the express purpose of obtaining an answer on oath, 
 which answer, contrary to the general rule in other cases, is received 
 as evidence against the corporation itself. 1 Thus allowing the 
 plaintiff to select from among the corporators such one or more of 
 them as he may think proper to make witnesses, and to extract from 
 them only such proof as may be entirely responsive to his case. 
 
 It is said, in one of the very respectable treatises on equity plead- 
 ing, that, in the case of a corporation aggregate, where the answer is 
 under the common seal, the bill must pray that a writ called a writ 
 of distringas may issue under the great seal, which is for the pur- 
 pose of distraining them by their goods and chattels, rents and profits, 
 until they obey the summons or direction of the court. 2 . What is 
 here said, however, as to the prayer of the bill, is certainly wrong, 
 the authorities cited warrant no such assertion. 3 And it has also 
 been said, that a subpena is not the proper original process against a 
 corporation, because it has no conscience. 4 This is also an error, 
 for, in all cases, where a corporation is made defendant, the first and 
 proper process for calling it in to appear and answer is the same as 
 that used for summoning a natural person, that is, a subpena; and 
 accordingly the bill prays for a subpena, and no other process. 8 
 The bill, it is true, must always ask for that original process which 
 is suited to the nature of the case ; against natural and artificial per- 
 sons a subpena is prayed for; against non-residents an order of pub- 
 lication made the substitute of a subpena, is asked, and against the 
 attorney-general it is prayed that he may be attended with a copy of 
 the bill ; 6 which form of prayer, as against the attorney-general, 
 appears to be recognized by several acts of assembly, 7 with only 
 two exceptions, in which he is directed to be summoned, or served 
 with a subpena.* These prayers are indispensably necessary, be- 
 cause it is an established rule, that no one is to be considered a party 
 to the suit, against whom no process or publication is prayed and 
 served with it, or the publication made. 9 
 
 If the body politic neglects or refuses to appear as required by the 
 subpena which has been served on the mavor, president or any director 
 or manager, or other officer, then the next process is a distringas, the 
 
 1 Fenton v. Hughes, 7 Ves. 289; Dummer v. Corporation of Chippenham, 
 14 Ves. 253. 
 1 Coop. PI. Eq. 16. 
 8 Harvey v. East India Company, 2 Vern. 395; e. c. Prec. Cha. 128. 
 
 4 Com. Dig. tit. Franchises, F. 19. 
 
 5 Willis Eq. Plea. 8 ; Lowten v. The Mayor of Colchester, 2 Meriv. 395. 
 
 6 Willis Eq. Plea. 7; 2 Mad. Pra. Chan. 202. 
 
 '1785, ch. 72, e. 29, and ch. 78, B. 1 ; April, 1787, ch. 30, 8. 4; 1799, ch. 79, 
 8. 7. 
 
 8 1786, ch. 49, s. 8 ; 1794, ch. 60, B. 6. 
 
 'Windsor v. Windsor, 2 Dick. 707; Reilly v. Ward, 5 Bro. P. C. 495; 
 Lingan v. Henderson,' 1 Bland 245.
 
 228 M'KIM v. ODOM. 42 
 
 form of which writ is substantially the same at law as in equity. 1 
 By this writ the sheriff is commanded to make a distress upon the 
 lands and tenements, goods and chattels of the corporation ; and it is 
 indorsed thus: "By the court at the suit of A. B. for want of an ap- 
 pearance (or answer, as the case may be)." But in England upon the 
 first writ the sheriff generally levies forty shillings issues ; upon the 
 alias distringas, four pounds ; on the pluries distringas he levies the 
 whole property ; and on the return of the pluries a sequestration is 
 granted. 2 Thus far there appears to be not the slightest difference 
 to be found in the books, either as to the form of the process, or in 
 reference to the character of the corporation to be affected by it. 
 
 I can, therefore, feel myself at liberty to make no other alteration 
 than to settle the amount in reference to the present value of money, 
 and to declare, that upon the first distringas to compel an appearance 
 or answer, the sheriff shall take issues or personal property of the 
 corporation, to the amount of twenty dollars; and upon the alias dis- 
 tringas he shall levy forty dollars ; and on the pluries distringas he 
 shall distrain the whole of the personal estate, together with the rents 
 and profits of the lands. 3 
 
 If it shall be ascertained by the return of all these successive writs 
 that the corporation has no property upon which a distringas may be 
 levied, or which can be taken under a sequestration, then the bill may 
 be taken pro confesso, and the plaintiff may obtain relief accord- 
 ingly; 4 or if, having no property, or after all its property has 
 been sequestered, it still stands out, and refuses to appear and answer, 
 then, according to what seems to be the better and more reasonable 
 opinion, the plaintiff may have an attachment against the members, 
 or, at least, those of them who have been duly summoned, or served 
 with the subpena, and thus notified of the institution of the suit. 5 
 
 If, after a decree, the corporation neglects to comply therewith, 
 upon being served with a copy of it according to the ancient 
 practice, 6 as recognized by the act of assembly, 7 now dis- 
 pensed with, 8 the plaintiff may obtain a distringas to enforce 
 obedience to it, and after the return of the first writ of distringas he 
 may have a sequestration, 9 and if the sheriff returns that the body 
 politic has nothing upon which the distringas can be levied, then the 
 members of the corporation may be attached, or such other proceed- 
 ings had according to the nature of the case, and having proper re- 
 
 1 2 Harr. Ent. 674; 1 Harri. Pra. Chan. 264; 1832, ch. 306, B. 5. 
 1 Harr. Prac. Chan. 264. 
 3 East India Company's case, 1 Salk. 191. 
 
 * Salmon v. The Hamborough Company, 1 Ca. Chan. 204; Curson v. African 
 Company, 1 Vern. 121. 
 
 5 Rex v. Gardner, Cowp. 85; London v. Lynn, 1 H. Blac. 206. 
 
 6 2 Mad. Pr. Chan. 466. 
 '1785, ch. 72, s. 25. 
 
 8 1818, ch. 193, s.4. 
 
 9 Harvey v. East India Company, 2 Vern. 395; s. c. Prec. Chan. 129; Com.. 
 Dig. tit. Franchises, F. 19.
 
 43 PUBLIC AND PRIVATE CORPORATIONS. 22Q 
 
 gard to the extent of the liability of the members of the body politic 
 as may be deemed proper and lawful. 1 
 
 Whereupon it is ordered that a writ of distringas be issued as 
 prayed by the said petition of the plaintiffs, which writ is hereby 
 directed to be indorsed and levied as above prescribed. 
 
 [Soon after the president and directors of the Franklin Bank of 
 Baltimore put in their answer, and, after hearing, the bill of complaint 
 was dismissed as to them.] 
 
 (See cases cited to People v. Morris, infra, p. 234.) 
 
 Sec. 43. Same. 
 
 THE PEOPLE v. MORRIS. 8 
 
 1835. IN THE SUPREME COURT OF NEW YORK. 13 Wendell (N.Y.) 
 
 3 2 5-337- 
 
 [Error from the St. Lawrence oyer and terminer. The defendant 
 was tried on an indictment for selling spirituous liquors and "permit- 
 ting the same to be drank in his grocery store, without having ob- 
 tained a license as a tavern keeper. 
 
 The village charter of 1824 authorized the trustees to regulate and 
 "license grocers, and keepers of victualing houses, where fruit victuals 
 and liquor shall be sold to be eaten or drank in such houses or grocer- 
 ies." In 1830 the revised statutes went into effect and provided 
 that only certain excise commissioners could grant licenses to sell 
 liquors and wines to tavern and inn-keepers to be drank in their 
 houses, and licenses to grocers should be granted to sell only in five- 
 gallon quantities or over, but not to be drank in their houses. De- 
 fendant had obtained his license from the village authorities under the 
 charter, and admitted the selling in his grocery to be drank there, after 
 the revised statutes went into effect.] 
 
 By the court, NELSON, J. The defendant insists that the stat- 
 ute under which he has been convicted is inoperative, upon the 
 grounds, ( i ) That the power or franchise of the corporation of the 
 village of Ogdensburgh to grant licenses to grocers to sell spirituous 
 liquors to be drank in their houses is a vested right, and can not be 
 impaired or taken away; and (2) That if .such power can be taken 
 away, it can be done only by bill having the assent of tivo-thirds of 
 the members elected to each branch of the legislature, in conformity 
 to the ninth section of the seventh article of the constitution of the 
 state. 
 
 As to the first objection urged by the defendant, the only limita- 
 
 J 2 Mad. Pr. Chan. 466; Salmon v. The Hamborough Company, 1 Cha. 
 Cas. 204; Adley v. The Whitestable Company, 17 Ves. 324; B. c. 1 Meriv. 107. 
 z Statement of facts abridged. Much of the opinion omitted.
 
 230 THE PEOPLE V. MORRIS. 43 
 
 tion to the powers of the legislative department that can exist must be 
 found either in the constitution of the United States or of this state, 
 or in the natural and inherent rights of the citizens, which they can not 
 part with or be deprived of by the society to which they belong. * * 
 
 Vested rights are indefinite terms, and of extensive signification, 
 not unfrequently resorted to when no better argument exists, in cases 
 neither within the reason nor spirit of the principle. Rights in one 
 sense vested, that is, vested as it regards every other body or power 
 except the government, are numerous, and the subject of common 
 regulation and even abrogation. All general and local laws, restrain- 
 ing the free action of the citizen as to person or property, the imposi- 
 tion of burthens and of duties, partake more or less of this character, 
 and may be referred to in illustration of the remark. Government was 
 instituted for the purpose of modifying and regulating these rights with a 
 view to the general good, and under the constitution the mode by which 
 it was thought this great object might best be attained was left to the 
 wisdom and direction of the people themselves, acting through the 
 medium of their representatives. We may concede to the defendant 
 that if any rights vested under the national or state constitutions, or 
 others inherent and inalienable, and, therefore, also vested, have been 
 violated by any provision of the revised statutes, such provision is in- 
 operative and void. But if such rights have not been violated, we do 
 not perceive how its penalties can be eluded. Now the defendant's 
 rights are in no way improperly interfered with by the revised stat- 
 utes, except so far as there may be an infraction of the corporate 
 privileges of the village, because it will not be pretended that the 
 right to sell spirituous liquors falls within the most extended class of 
 vested rights. Nor can it be claimed that the right of any corporator, 
 in his individual capacity, has been at all touched by this statute. It 
 acts solely and exclusively upon the powers and privileges previously 
 conferred upon the whole or aggregate body of citizens by the village 
 charter. It is this power, thus previously granted to the corporation, 
 which the revised statutes intended to modify, not the private rights 
 of an individual member of it. 
 
 What was the power thus conferred by the village charter ? We 
 answer that it was wholly political. Instead of prescribing at their 
 discretion every duty to be performed, and forbidding every act to be 
 avoided, in a word, directing the whole system of government to be 
 observed and executed, the legislature have merely defined the out- 
 lines and leading principles, and conferred upon the inhabitants, 
 within the bounds of the corporation, the power at discretion to fill 
 up and carry them into operation. Strictly speaking, individual 
 rights or private interests are no more involved in the arrangement 
 than they are in the general laws passed with reference to the govern- 
 ment of a town, a county or the state. Their rights, as citizens of the 
 government, subject to its control, and to be so regulated and directed 
 as to harmonize with the general good, are those and those only, 
 within the contemplation of the charter. * * *
 
 43 PUBLIC AND PRIVATE CORPORATIONS. 231 
 
 [The constitution, article 7, section 9, provided: "The assent of 
 two-thirds of the members elected to each branch of the legislature 
 shall be requisite to every bill, etc., creating, continuing, altering, 
 or renewing any body politic or corporate."] 
 
 We are of the opinion the constitutional provision does not apply to 
 public corporations. 1 That the village of Ogdensburgh is "a body 
 politic and corporate," is not denied. The charter falls within the 
 definition of Lord Coke and of other approved authors. "A body 
 politic," he says, "is a body to take in succession, framed as to its 
 capacity by policy, and therefore is called by Littleton (section 413) a 
 body politic; and it is called a corporation or body corporate because 
 the persons are made into a body, and are of capacity to take, grant, 
 etc., by a particular name." Viner's Abr. Corp. (#2). A public 
 corporation is also defined to be, "an investing the people of the 
 place with the local government thereof." This latter description is 
 the most appropriate, and is justified by the history of these institu- 
 tions, and the nature of the powers with which they were and are in- 
 vested. * * * 
 
 The fact conceded that they are "bodies politic and corpoi'ate," is 
 -not, by fair reasoning, necessarily conclusive. So are towns and 
 counties, for they come within one or other of the above or most ap- 
 proved definitions. They possess every requisite to constitute them 
 corporations, besides being declared to be so by statute, as are also 
 superintendents of the poor and trustees of school districts, i R. S. 
 337, 42 id. 364, 486, 617, 498. Each town, as a body corporate, has 
 capacity to sue and be sued ; to purchase and hold real estate ; to 
 make such contracts and hold such personal property as may be neces- 
 sary to its corporate and administrative powers ; and to make such 
 order for the disposition, regulation and use of its public property as 
 may be conducive to the interests of the inhabitants. Large powers 
 are also conferred, as has already appeared, in respect to their munic- 
 ipal and domestic regulations. So in respect to superintendents of the 
 poor. It is expressly declared (i R. S. 617, 16) "they shall be a 
 corporation by the name of the superintendents of the poor of the 
 county for which they shall be appointed, and shall possess the usual 
 powers of a corporation for public purposes." Large powers are 
 conferred upon them also to enable them to execute their trust, and 
 especially for the "good order and government of the place and poor- 
 houses belonging to the county, for the employment, relief, manage- 
 ment and government of the persons placed under their care." The 
 trustees elected in a town having lands belonging to it for the support 
 of the gospel, or of schools, or both, "shall be a corporation for the 
 purposes of their office, by the name of the 'Trustees of the Gospel 
 and School Lot,' " in the town in which they are elected. They shall 
 have power, "besides the ordinary powers of a corporation," to man- 
 age these lots, as particularly set forth in the statute, i R. S. 497, 8. 
 Other cases might be referred to. That they come within the letter 
 of the provision is not enough, unless the different bodies above 
 
 1 The subsequent case of Purdy v. People, 4 Hill (N. Y.) 384, held that this 
 constitutional provision applied to public as well as private corporations.
 
 232 THE PEOPLE V. MORRIS. 43 
 
 alluded to are also included, which probably will not be pretended ; 
 for, if so, most of the legislation of the state must be in conformity 
 to this provision of the constitution. 
 
 Are they within the evil this provision was designed to remedy? 
 No one, I think, acquainted with the history of the times, or with the 
 introduction of this clause into the constitution, will venture upon this 
 ground. It may be fortunate for truth, and what is deemed a sound 
 exposition of this provision, that all who may desire to examine it can 
 recur to his own recollection and challenge that of others upon this 
 point. We think we hazard nothing in asserting that the multiplica- 
 tion of cities or villages by the legislature has at no time been a sub- 
 ject of complaint. Only four of the former existed in the state at the 
 adoption of the constitution. The latter, which were somewhat numer- 
 ous, have always been viewed by the people of the state as a matter 
 in which the inhabitants of the village were exclusively interested, and 
 to be left to their option. But 'private incorporations had multiplied 
 to an extent that had attracted public attention, especially banking in- 
 stitutions. These had been sought for with zeal, and their enactment 
 attended with circumstances that awakened public suspicion and 
 alarm. So extreme had the evil become at one period of our history, 
 that the chief magistrate of the state felt it his duty to exercise the 
 power then existing in the constitution, of proroguing the legislature, 
 and was triumphantly sustained by the people in the execution of this 
 high and delicate trust. The fact affords strong evidence of the deep 
 impression made upon the public mind as to these and similar private 
 corporations, and of the scope and purpose of the clause on this sub- 
 ject. If we resort to the history of its introduction into the new con- 
 stitution, the above view will be confirmed. Mr. King, chairman of 
 the committee of the legislative department, reported the section; and 
 when it came under consideration, said that the committee had looked 
 upon the multiplication of corporations as an evil ; they had been 
 created for a great variety of purposes ; they were exceptions to the 
 common law ; they could not be proceeded against in the ordinary way 
 of prosecutions against individuals in courts of justice ; they ought not 
 to be increased, but should be diminished as far as could be done con- 
 sistently with the preservation of vested rights. It is obvious, though 
 the language used in the clause in question is general, that the honor- 
 able chairman had in his mind (and he spoke for the committee) the 
 case of private corporations ; that the great inducement to the adoption 
 of the clause was a check upon them ; and that the organization of 
 communities, and the investing them with the privileges of mere 
 municipal jurisdiction and authority, were not at all in contempla- 
 tion. 
 
 The distinction between public and private corporations is strongly 
 marked, and, as to all essential purposes, they correspond only in 
 name. We speak of the erection of a town or a county, and the 
 term would be just as appropriate when applied to cities or villages. 
 They are severally political institutions, erected to be employed in the
 
 43 PUBLIC AND PRIVATE CORPORATIONS. 233 
 
 internal government of the state. There is no contract between the 
 government and governed, for but one party is concerned the public; 
 and the inhabitants upon whom the powers and privileges are con- 
 ferred are mere trustees, who hold and exercise such powers for the 
 public good. The only interest involved is the public interest, and no 
 other is concerned in their creation, continuance, alteration or renewal. 
 The nature and operation of these corporations repudiate the idea of 
 vested rights, and, therefore, no evil arising out of them could have 
 influenced the convention. We know of no vested rights of political 
 power, in any citizen or body of citizens, except those conferred by 
 the constitution. That is our bill of rights, and is analogous to those 
 granted to kingdoms or minor communities, such as towns and 
 cities, by princes and superior lords on the continent, or by the crown 
 of England. 
 
 Private corporations are the private property of the corporators. 
 They are designed to regulate private interests. Large investments 
 are made in pursuance of their authority, and the tenure by which 
 such corporate property is held is like that of an individual to his 
 farm or personal estate ; and an invasion of such corporate power is 
 like a violation of private right. One of the strongest reasons why 
 these private corporations should be cautiously granted arises from 
 the inviolability of the rights acquired under them ; for notwithstand- 
 ing the reserved power in the charter to modify or repeal, an inter- 
 ference seriously affecting this species of property is calculated to 
 shake public confidence in the security of these corporations gener- 
 ally, and might and probably would be immediately disastrous to 
 the property invested under their faith, in the particular instance in 
 which the legislature exercised its reserved power. This wide dis- 
 tinction was well known to the members of the convention, and shows 
 that the clause in the constitution may be fully satisfied by confining 
 its operation to the case of private corporations. Nor can it be ad- 
 mitted that it was intended to restrict the action of the legislature, in 
 the municipal regulations of the state, as to one place more than an- 
 other, or that less latitude was to be given to such regulations in the 
 government of the citizens residing within the bounds of cities and 
 villages than of those residing in towns and counties. The nature 
 and object of the power exercised and the claims of those concerned, 
 are alike, and it is difficult to discover any solid reason for the dis- 
 tinction. All our public laws, civil and criminal, however impor- 
 tant or severe their operation, enacted for the good government of 
 the people throughout the state, are passed by majority votes ; and 
 it would be inconceivably strange if laws passed with a view to a 
 more perfect government of a particular place (laws better adapted 
 to the organization of society and the business and conditions of the 
 governed residing in small districts), should depend upon a different 
 and greatly restricted rule of action on the part of the legislature. 
 
 Judgment affirmed.
 
 234 THE STATE V. THE STANDARD LIFE ASSOCIATION. 44 
 
 Note. 1898, State v. Maryland Institute, etc., 87 Md. 643, 41 Atl. Rep. 126; 
 1897, United States v. Trans. Mo. Frt. Assn., 166 U. S. 290, on 320-2; 1894, 
 Chicago, etc., R. Co. v. Wabash, St. L., etc., R., 61 Fed. Rep. 993; 1891 r 
 Downing v. Ind. St. Bd. of Ag., 129 Ind. 443, 35 Am. & Eng. C. C. 216; 1890, 
 Wolfe v. Underwood, 91 Ala. 523, 8 So. Rep. 774; 1889, State v. District of 
 Narragansett, 16 R. I. 424, 24 Am. & Eng. C. C. 131 ; 1889, Appeal of Pitts- 
 burgh, 123 Pa. St. 374, 25 Am. & Eng. C. C. 364; 1888, Turlock Irrigation 
 Dist. v. Williams, 76 Cal. 360, 22 Am. & Eng. C. C. 198; 1888, Wambersie v. 
 Orange Humane Soc., 84 Va. 446, 28 Am. & Eng. C. C. 83; 1885, Hockett v. 
 State, 105 Ind. 250; 1883, Pierce v. Commonwealth, 104 Pa. St. 150; 1876, 
 Munn v. Illinois, 94 U. S. 113; 1869, Miners' Ditch Co. v. Zellerbach, 37 Cal. 
 543, 99 Am. Dec. 300 ; 1868, Foster v. Fowler, 60 Pa. St. 27 ; 1866, Commonw. 
 v. Lowell Gas Co., 12 Allen (Mass.) 75; 1862, State of lowav. Wapello Co., 13 
 Iowa 388, on 400-403; 1850, Mills v. Williams, 11 Ire. (N. C.) Law 558; 
 1842, Inhabitants of Worcester v. Western R. Co., 4 Met. (Mass.) 564; 1841, 
 Ten Eyck v. Canal Co., 18 N. J. L. 200; 1819, Dartmouth College v. Wood- 
 ward, 4 Wheat. 518, infra, p. 708. 
 
 Sec. 44. Same. (1) Private corporations, as to the method of 
 acquiring or losing membership, are: 
 
 1. Stock, or 
 
 2. Non-stock. 
 
 THE STATE v. THE STANDARD LIFE ASSOCIATION. 1 
 
 1882. IN THE SUPREME COURT OF OHIO. 38 Ohio State Reports 
 
 281-299. 
 
 [Quo WARRANTO: The object of this action is, to oust the defend- 
 ant, a corporation organized under section 3630 of the Revised 
 Statutes, from its franchise to do business, as an insurance company, 
 on the co-operative or assessment plan, as authorized by said section. 
 The ground alleged is misuser of its corporate privileges, and the 
 exercise of rights and privileges not conferred by law. Among other 
 things it is specified as grounds for the judgment of ouster, that this 
 company has issued certificates of membership for the payment of 
 stipulated sums of money for the member's benefit, instead of the 
 benefit of his family or heirs as the law authorizes ; that it has issued 
 such certificates to very aged and infirm persons without regard to 
 their prospects of life ; that it has issued them for the benefit of 
 cousins, sons-in-law, and other relatives who are not of the family or 
 heirs of such member ; that it has delayed the approval of proofs of 
 death, and making the proper assessments to pay in case of death ; 
 and that it has treated others than the family or heirs as beneficiaries, 
 making assessments against them, and looking to them and not to the 
 member for the payment. 
 
 1 Statement of facts abridged, part of opinion omitted.
 
 44 STOCK AND NON-STOCK CORPORATIONS. 235 
 
 The answer puts in issue these allegations, and avers that the defend- 
 ant is doing a business authorized by law.] 
 
 JOHNSON, J. This association was incorporated September i, 1880. 
 The record of the company shows that seven persons, to wit: D. R. 
 Johnston, W. H. Carter, J. B. Netscher, Jerry Shank, George W. 
 Cole, S. W. Anderson and John F. Wood, met on that day in Mans- 
 field for the purpose, as is stated, of organizing an association "to 
 furnish mutual protection and relief to its members," under section 
 3630 of the Revised Statutes ; Mr. Anderson was made chairman of 
 the meeting, and he thereupon presented a plan of operations, which 
 was unanimously adopted. What that plan was does not appear from 
 the record of the company, but is subsequently disclosed in the pro- 
 ceedings and acts of the association. 
 
 At the same meeting, those present drew up, and five of them ex- 
 ecuted, articles of incorporation, which were subsequently authenticated 
 and filed with the secretary of state, under which they became a body 
 corporate. 
 
 Before adjourning, and, of course, before they had become incor- 
 porated, these seven persons proceeded to elect themselves "officers 
 and trustees" of the association for one year, giving to each an office, 
 and also appointed an executive committee from among themselves. 
 It appears that by-laws were also adopted, but the record of the trus- 
 tees is silent as to their provisions. This record and the books of the 
 association show they proceeded to transact business as a corporation 
 soon after. 
 
 The certificate of corporation, after stating the name and place of 
 business, states the purpose of the association to be "to receive 
 money, either by voluntary donation or contribution, or to collect the 
 same by assessment of its members, and to distribute and appropriate 
 the same to the families or heirs of its deceased members, in such 
 manner as may be prescribed by the rules and regulations of the asso- 
 ciation, not inconsistent with the laws of Ohio, and so as to carry out 
 the objects and purposes of the association as above expressed." The 
 section of the Revised Statutes authorizing such a corporation is as 
 follows : 
 
 "Section 3630. A company or association may be organized for 
 the mutual protection and relief of its members, and for the pay- 
 ment of stipulated sums of money to the families or heirs of the de- 
 ceased members of such company or association, and may receive 
 money, either by voluntary donation or contribution, or collect the 
 same by assessment on its members, and may distribute, invest and 
 appropriate the same in such manner as it may deem proper; but the 
 aggregate sum stipulated to be paid to the family or heirs of any 
 member at his decease shall in no case exceed $7,000, nor shall any 
 assessment on account of the death of any member be made against 
 any surviving member exceeding one-fifth of one per centum stipu- 
 lated to be paid to such survivor at his decease, and such association 
 shall not be subject to the preceding sections of this chapter."
 
 236 THE STATE V. THE STANDARD LIFE ASSOCIATION. 44 
 / 
 
 It will be noticed that this section authorizes such corporation for 
 the mutual protection and relief of its members, and also for the pay- 
 ment of stipulated sums of money to the family or heirs of the de- 
 ceased members. The certificate of incorporation is silent as to 
 furnishing mutual protection and relief to members. It limits the 
 scheme, so far as relief is concerned, to the distribution of its funds to 
 the family or heirs of deceased members. 
 
 It does not purport, therefore, to afford any relief or protection to 
 its members, but only to provide for their family or heirs after their 
 decease. It is in no sense, therefore, according to the charter, a mutual 
 aid association to members, but a mutual insurance company of 
 members, for the benefit of the family or heirs of members. 
 
 It has issued what are termed certificates of membership, but the 
 real nature of the contract is that of insurance. 
 
 The so-called member, for in fact he is not treated as a member of 
 the corporate body, contracts to pay an admission fee, and annual 
 dues of specified amounts, and a stated assessment for each death in 
 the class to which he belongs, in consideration of which the company 
 agrees to pay his beneficiary named the assessment collected (less the 
 deductions stated hereafter), not exceeding the amount of insurance 
 named in the certificate, which is either $2,000 or $3,000. 
 
 In Commonwealth v. Wetherbe, 105 Mass. 149, it was held, that 
 such a contract was one of insurance, whatever be the terms of pay- 
 ment of the consideration by the assured, or the mode of payment of 
 the sum to be paid in the event of loss, and although the object of the 
 insurer, in making the contract, is benevolent and not speculative. 
 
 It was further held in that case that it was none the less a contract 
 of mutual insurance because the amount to be paid is not a gross sum, 
 but one graduated by the number of members, nor because a por- 
 tion of the premiums are to be paid upon uncertain periods of the 
 death of members, nor because in case of non-payment of assessments 
 the contract provides no mode of enforcing payment thereof but 
 merely declares the contract forfeited. 
 
 From the specific terms of the charter, as well as from the tenor of 
 certificates of membership, the contract entered into is one of insur- 
 ance on the lives of members, and not one for the mutual protection 
 and relief of its members. 
 
 Whether it is competent to become a corporation for that single 
 purpose when the statute authorizes such corporations for the double 
 purpose of mutual protection and relief of its members, and also for 
 life insurance for the benefit of the family or heirs of such members, 
 is a question we need not now stop to answer, as the petition admits 
 that the association was duly incorporated. 
 
 Section 3630 provides, however, that these corporations shall not 
 be subject to the preceding sections of the chapter, relating to life 
 insurance companies "on the mutual or stock plan." Chapter 10, 
 sections 3587 to 3629, Revised Statutes. 
 
 This leads to the inquiry, to what extent they are regulated by law,
 
 44 STOCK AND NON-STOCK CORPORATIONS. 237 
 
 and to what extent such associations may adopt their own rules and 
 regulations? 
 
 Though not subject to the provisions relating to life insurance in 
 chapter 10, they are subject to the general provisions relating to cor- 
 porations found in chapter i of title 1 1 of the Revised Statutes. 
 
 That chapter provides for two classes of corporations, (i) those for 
 profit, which must have a capital stock, and (2) those not for profit, 
 which need not have a capital stock. 
 
 If it is of the first kind, its name must begin with "The," and end 
 with "Company," and in each kind the place of business and purpose 
 for which it is formed must be stated in the certificate. R. S., sec- 
 tion 3226. By section 3240 a majority of the subscribers to the arti- 
 cles of incorporation of a corporation, other than for profit, may elect 
 not less than five trustees, who shall hold their offices until the next 
 election, or until their successors are elected and qualified. In the 
 case at bar, the incorporators elected seven trustees for one year. 
 
 By section 3246, unless the regulations otherwise provide, the annual 
 election for trustees or directors shall be held (this section applies as 
 well to corporations not for profit as those for profit) on the first 
 Monday in January of each year. It further contemplates that the 
 elective body consists of the "members" of the corporation in those 
 not for profit, and the "stockholders," in those for profit. 
 
 Section 3249 provides that every corporation may adopt a code of 
 regulations for its government, not inconsistent with the laws of the 
 state. 
 
 Section 3250 authorizes the trustees or directors of a corporation to 
 adopt a code of by-la-ws for their government not inconsistent with 
 the regulations of the corporation, or the constitution and laws of the 
 state, and may change them at pleasure, but section 3251 requires that 
 regulations may be adopted or changed by the assent in writing of two- 
 thirds of the stockholders, or, if there is no capital stock, of the mem- 
 bers, or by a majority of the stockholders or members, at a meeting 
 held for that purpose, of which due notice is given. 
 
 By section 3252, a corporation, by its regulations, when no other 
 provision is especially made in this title, may provide, first, for the 
 time, place, etc., of meetings; second, the number of stockholders or 
 members to make a quorum; third, the time for the election of trus- 
 tees or directors; fourth, the duties and compensation of officers; 
 fifth, the mode of filling and tenure of all offices other than trustees 
 or directors ; and, sixth, the qualification of members when the corpo- 
 ration is not for profit. 
 
 By section 3261, the trustees of corporations, other than for profit, 
 are made personally liable for all debts by them contracted. 
 
 These are the chief provisions of the statute relating to corporations 
 other than for profit. 
 
 We are of opinion ( i ) That associations incorporated for the pur- 
 poses named in section 3630 are corporations other than for profit,
 
 238 THE STATE V. THE STANDARD LIFE ASSOCIATION. 44 
 
 and hence any plan or scheme which is intended to earn profits for its 
 trustees, managers or agents, is in violation of law. 
 
 (2) That the members of such a corporation, and not the incorpo- 
 rators nor the first board of trustees, elected by them, are the elective 
 body. These members, and not the trustees or incorporators, are au- 
 thorized to elect trustees, and adopt regulations for the government 
 of the corporation in the transaction of its business. Hence the trus- 
 tees are the chosen agents of the members. They have no authority 
 to adopt or alter regulations, nor to prescribe their terms of office, 
 though they may make by-laws for their government and change them 
 at pleasure. 
 
 The facts in this case show that this association has been organized 
 and is doing business in direct violation of these provisions of law. 
 
 I. The members of the corporation have had no voice in the elec- 
 tion of trustees or in the management of its affairs. The incorporators, 
 at the first meeting to organize, elected themselves trustees for one 
 year. At the end of that year these same trustees re-elected them- 
 selves ; the meeting, as the record shows, was the annual meeting of 
 the trustees, and all being present. 
 
 On January 25, 1882, they adopted a new code of "by-laws, rules 
 and regulations," by which they provided that they should hold office 
 during life, and in case of vacancy by death or resignation, or re- 
 moval for good cause, which could be done by a majority vote, such 
 vacancy should be filled by the remaining trustees. Thus they arro- 
 gated to themselves all authority. They made regulations, and con- 
 ducted the whole businesss on the theory that the members had no 
 voice. They were under no obligations to become members, and 
 most of them were not. 
 
 They thus became a perpetual body, invested with all the franchises 
 and powers which the statute vested in the members. 
 
 II. The plan upon which the business has been done, was to make 
 money for these trustees and their agents. 
 
 These self-constituted trustees clothed themselves with supreme 
 and perpetual power, and then proceeded to manage this self-imposed 
 trust for their own interest, and at the expense of their over-confiding 
 members, or their speculative beneficiaries. I am aware this is a 
 serious charge, but it is not made without the most convincing evi- 
 dence, taken from the books and papers of the company. * * * 
 
 This is not the case of exceptional excess of corporate power. 
 The whole plan of operations, and their practical exemplification, 
 manifest a carefully formed purpose to make money for the trustees. 
 It is a speculative insurance company, in a most objectionable form. 
 To prolong its existence and thus enable the trustees to continue in 
 such business, would be a failure of duty on the part of the court. 
 
 Judgment of ouster. 
 
 OKEY, C. J., took no part in the decision of this case. 
 
 Note. 1858, Union Insurance Co. v. Hoge, 21 How. (62 U. S.) 35; 1871, 
 Bryant v. Ohio Dental College, 1 Cin. Sup. Ct. Rep. (Ohio) 67, 307 ; 1887,
 
 45 CORPORATIONS DE JURE. 239 
 
 Ohio College of Dental Surgery v. Rosenthal, 45 Ohio St. 183; 1889, Crawford 
 v. Gross (Pa. Com. PL), 7 Pa. Co. Ct. Rep. 419, 7 R. & Corp. L. J. 123. See 
 below, The Corporate Funds, p. 760 ; Lindley 's Partnership, vol. 1 , p. 5, et seq. ; 
 "Stock, Its Nature and Transfer," by Henry Budd, Jr.,Y So. Law Rev. 430. 
 It seems that originally the idea of a stock company was one in which each 
 member traded on his individual stock, but in accordance with rules laid 
 down by the company. The East India Company, incorporated in 1600, was 
 of this character originally each voyage to the East Indies was on a separate 
 joint-stock, to which each member, if he wished, might contribute such sum 
 as he chose ; each took shares in each voyage, as had been the immemorial 
 shipping customs of merchants. But in 1612 it was determined by the com- 
 pany that it would have one joint-stock the aggregate of the subscriptions of 
 the members all to be managed by the governor and directors of the com- 
 pany. Most of the trading companies afterward were either organized upon 
 or changed to this plan. See Cunningham's Growth of Eng. Indus., Modern 
 Times, pp. 124, 162, 225. In 1731 the colony of Connecticut incorporated the 
 New London Society for Trade and Commerce United, with a capital stock to 
 be controlled by members voting in proportion to their shares. 
 
 Sec. 45. Same. (2) Private corporations, as to the perfection 
 of their organization, are : 
 
 1. De jure. 
 
 2. De facto. 
 
 3. By estoppel. 
 
 CAPPS & McCREARY v. HASTINGS PROSPECTING COMPANY. 1 
 
 1894. IN THE SUPREME COURT OF NEBRASKA. 40 Nebraska Re- 
 ports, 470-478. 
 
 Error from district court of Adams county. 
 
 RAGAN, C. J. The Hastings Prospecting Company sued Lucius J. 
 Capps and Willis P. McCreary, co-partners, doing business under 
 the name, firm and style of Capps & McCreary, in the district court 
 of Adams county, on a subscription or writing obligatory signed by 
 them, in words and figures, as follows: "For the purpose of organiz- 
 ing a corporation, with a capital stock of $15,000, to bore for gas, 
 oil or coal, at or near the city of Hastings, Adams county, Nebraska, 
 and to buy or lease the land to experiment thereon for such purposes, 
 and to buy, lease or hire the necessary machinery and labor for such 
 purposes, we, the undersigned, agree to subscribe and pay for the 
 amount of stock set opposite our names, said stock to be paid for in 
 the manner following, to wit: Ten per cent, within thirty days from 
 the organization of said corporation, and the balance at the call of the 
 directors; provided, that said directors shall not have power to call 
 for more than 10 per cent, of said stock at any one time ; and, pro- 
 vided further, that payment shall not be called for oftener than once 
 
 1 Arguments omitted.
 
 240 CAPPS & M' CREAKY V. HASTINGS PROSPECTING CO. 45 
 
 a month. Names, Capps & McCreary ; number of shares, ten shares; 
 dollars, $100.00." The case was tried to the court, a jury being 
 waived, resulting in a finding and judgment in favor of the prospect- 
 ing company, and Capps & McCreary bring the case here for review. 
 
 The only errors assigned are that the finding and judgment of the 
 court are contrary to the evidence and the law. The undisputed evi- 
 dence in the case is that the plaintiffs in error and a number of other 
 citizens signed the subscription paper quoted above ; that after the 
 $15,000 of stock had been subscribed the subscribers, or some of 
 them, met and elected a board of directors, adopted articles of incor- 
 poration, and filed a copy of the same in the office of the secretary of 
 state and the original in the office of the register of deeds of Adams 
 county, the county in which the principal place of business was fixed 
 by the articles of association. This incorporation, or attempted in- 
 corporation, occurred on the i5th day of April, 1889. The articles of 
 incorporation were never filed in the office of the county clerk of 
 Adams county. We have here then the questions: First, whether 
 the prospecting company failed to become, as it attempted, a corpora- 
 tion de jure by neglecting to file in the office of the county clerk its 
 articles of incorporation; second, and if it did, whether such default 
 or failure on the part of the prospecting company is available as a de- 
 fense to the plaintiffs in error? The first inquiry which presents itself 
 is as to the nature of the agreement which the plaintiffs in error signed. 
 What did they promise to do ? We think a fair construction of the 
 writing signed by them amounts to this : That they agreed to accept 
 and pay for ten shares of the capital stock of the corporation the sub- 
 scribers to the enterprise of boring for gas should organize, such pay- 
 ment to be made within thirty days after such corporation should be 
 organized. The next inquiry is, what is meant by the expression, 
 "when the corporation shall be organized"? It must be remembei'ed 
 that the plaintiffs in error agreed to become stockholders in the corpo- 
 ration that should be formed, and a fair construction of this promise 
 is that they meant to become stockholders in a corporation de jure 
 and not a corporation de facto. A de jure corporation is one whose 
 right to exercise a corporate function would prove invulnerable if as- 
 sailed by the state in quo ivarranto proceedings. The plaintiffs in 
 error might have been willing to invest a part of their capital towards 
 a public enterprise and take their chances of the investment being re- 
 munerative, if no further liability would attach to them than that of 
 stockholders in a de jure corporation, when they would not have em- 
 barked the same money for the same purpose in a partnership or a 
 de facto corporation, where they would assume liabilities greater than 
 those of stockholders in a de jure corporation. We hold, then, that 
 by the subscription signed by the plaintiffs in error they promised to 
 take and pay for ten shares of the capital stock of such de jure corpo- 
 ration as might be formed for the purpose for which the subscription 
 was made. 
 
 Is the Hastings Prospecting Company, or has it ever been, a de jure
 
 45 CORPORATIONS DE JURE. 24! 
 
 corporation ? It is admitted that it did not file in the office of the 
 county clerk of Adams county, that being the county in which its 
 articles of incorporation fixed its principal place of business, its articles 
 of incorporation. Did this default prevent the Hastings Prospecting 
 Company from becoming a corporation de jure? The authorities are 
 not entirely in harmony on this question, but the weight of authority 
 is, that where the statute requires the articles of incorporation to be 
 filed with some public officer before the commencement by the pro- 
 posed corporation of the business for which it is organized, such filing 
 is a condition precedent to the right of such corporation to perform 
 any corporate function ; consequently, until a compliance with the 
 statute, the corporation has no valid existence as a de jure corporation. 
 Morawetz, Private Corporations, section 27, says, "A substantial 
 compliance with all the terms of a general incorporation law is a pre- 
 requisite of the right of forming a corporation under it. Thus where 
 it is provided that a certificate or articles of association, setting forth 
 the purposes of the corporation about to be formed, the amount of the 
 capital, and other details, shall be filed with some public officer, a 
 performance of this requirement is essential ; and until it has been 
 performed, the association will have no right whatever to assume cor- 
 porate franchises." Cook on Stock and Stockholders, section 231, 
 speaking to this same subject, says: "Occasionally, however, it 
 happens that this certificate is not fully made out, as required by the 
 statute, or is not filed, or some other step prescribed by law is not 
 complied with. The corporation is then not duly incorporated ; and 
 the state, by quo -warranto, may oust it from its user of corporate 
 franchises." In Doyle v. Mizner, 42 Mich. 332, it was ruled: "All 
 private corporations must be organized under general laws, and can 
 be valid only when strictly conforming to all the conditions imposed 
 on their completion." The court says: "The incorporation was 
 sought to be shown by asking Doyle, on cross-examination, concern- 
 ing the signing of a paper purporting to be articles of incorporation 
 which had been filed in the Detroit city clerk's office April 6, 187^. 
 This paper was not acknowledged, and was not filed in the county 
 clerk's office. * * * The statute concerning manufacturing cor- 
 porations expressly requires that the articles shall be 'acknowledged 
 before some person authorized by the laws of this state to take 
 acknowledgment of deeds.' * * * That before any such corpora- 
 tion shall commence business, the articles should be filed with the 
 secretary of state and county clerk;" and the court held that by reason 
 of the failure to acknowledge and file in the office of the county clerk 
 the articles of incorporation, the association did not become a corpo- 
 ration de jure. To the same effect are Stowe v. Flagg, 72 111. 397 ; 
 Bigelow v. Gregory, 73 111. 197; Utley v. Union Tool Co., n Gray 
 (Mass.) 139; Unity Ins. Co. v. Cram, 43 N. H. 636; Childs v. 
 Smith, 46 N. Y. 34; Harris v. McGregor, 29 Cal. 125. 
 
 Section 126, chapter 16, Compiled Statutes, 1893, provides: 
 
 16 WIL. CASKS.
 
 242 CAPPS & M ' CREAKY V. HASTINGS PROSPECTING CO. 45 
 
 "Every corporation, previous to the commencement of any business 
 except its own organization, when the same is not formed by legisla- 
 tive enactment, must adopt articles of incorporation and have them 
 recorded in the office of the county clerk of the county * * * in 
 which the business is to be transacted." * * * Section 132 of 
 said chapter provided: "Any corporation formed without legislative 
 enactment may commence business as soon as its articles of incorpo- 
 ration are filed by the county clerks of the counties as required by 
 this subdivision, and shall be valid if a copy of its articles be filed in 
 the office of the secretary of state, and the notice required be pub- 
 lished within four months from the time of filing such articles in the 
 clerk's office." These two sections of the statute, read together, 
 leave little room for doubt that the filing of the articles of incorpora- 
 tion in the office of the county clerk is one of the things required to 
 make the corporation one de jure. To organize a corporation there 
 must be subscribers to the stock ; a meeting of said subscribers, or 
 some of them ; the adoption of articles of association for the govern- 
 ment of the proposed corporation, and such articles must be filed in 
 the office of the county clerk of the county in which is fixed the cor- 
 poration's principal place of business. These sections of the statute 
 quoted above were construed by this court in Abbott v. Omaha 
 Smelting and Refining Co., 4 Neb. 416, and it was there said: "In 
 this state the filing of articles of incorporation with the county clerk 
 is a condition precedent to the existence of any corporate franchise. 
 The law and the articles so filed, taken together, are considered in 
 the nature of a grant from the state and constitute the charter of the 
 company." A corporate franchise is a privilege, a power, a right. 
 It is a very different thing from the performance of any step necessary 
 to the organization. In Indianapolis Furnace and Mining Co. v. 
 Herkimer, 46 Ind. 142, the question we are considering arose and 
 was decided by the supreme court of Indiana, under a statute sub- 
 stantially like the one we have quoted above, and the court said : 
 "The signing of articles of association by parties proposing to form a 
 manufacturing corporation does not create such corporation. The 
 subscribers must also make, sign, and acknowledge the certificate of 
 incorporation prescribed (by the statute) and must file the same in 
 the recorder's office of the proper county." We think, therefore, 
 that the Hastings Prospecting Company, the name of the corporation 
 attempted to be organized by the subscribers who signed the subscrip- 
 tion on which the plaintiffs in error are sued, is not, and has never 
 been, a corporation de jure. 
 
 Is that fact available to the plaintiffs in error as a defense to this 
 suit? It is to be borne in mind that the plaintiffs in error did not sub- 
 scribe for the stock of any corporation, either de facto or de jure, then 
 in existence ; and there is a distinction as to the liability of parties for 
 subscriptions to a corporation, or an association which assumes to be 
 and is acting as a corporation, and the liability for subscriptions made 
 by the parties for the purpose of organizing a corporation from among
 
 45 CORPORATIONS DE JURE. 243 
 
 .the subscribers. If the subscription made by Capps & McCreary had 
 been made to the Hastings Prospecting Company when it was acting 
 as a corporation, when it was exercising the functions of a corpora- 
 tion, when it was claiming to be a corporation, and had their agree- 
 ment been to pay such corporation certain sums of money for certain 
 shares of its stock, it seems that they would then be estopped from set- 
 ting up as a defense that the prospecting company was not a corpora- 
 tion de jure. (Cook Stock and Stockholders, 186, and cases cited.) 
 Morawetz on Private Corporations, section 67, thus lays down the 
 rule in such cases: "Every subscription (to the stock of a corpora- 
 tion to be organized) by implication refers to and incorporates the 
 terms of the charter or general law under which the corporation is 
 to be formed ; and every subscriber agrees to become associated with the 
 others only upon condition that the formalities prescribed by the char- 
 ter shall be observed in making the mutual contract. Thus, if certain 
 preliminaries, such as the filing of a certificate, are required to be per- 
 formed after the articles of association have been subscribed, but be- 
 fore the corporation shall be in existence, the contract of membership 
 does not go into effect until these formalities are complied with, and 
 a subscriber to the articles can not until then be made to contribute 
 the amount of his subscription." In Rikhoff v. Brown's Rotaiy 
 Shuttle Sewing Machine Co., 68 Ind. 388, it was held: "A subscrip- 
 tion of stock to preliminary articles of association, not purporting to 
 be a contract with an existing corporation, does not estop the sub- 
 scriber to afterward deny the existence of the corporation in a suit 
 upon the subscription." See, also, Indianapolis Furnace and Mining 
 Co. v. Herkimer, 46 Ind. 142, where it is said: "Until the statutory 
 requirements to organize a corporation have been complied with, a sub- 
 scriber to the articles of association is not estopped to deny the exist- 
 ence of the corporation." (See, also, Dorris v. Sweeney, 60 N. Y. 
 463.) We think these authorities are decisive of the case under con- 
 sideration. The rule they lay down is sound law, good sense and 
 exact justice. 
 
 If the plaintiffs in error are to pay for the stock subscribed, it, of 
 course, follows that they become entitled to the stock. This would 
 make them stockholders in a de facto corporation and liable as co- 
 partners, whereas their contract was to become liable as stockholders. 
 The plaintiffs in error have not broken their promise. The judgment 
 of the district court is reversed. 
 
 Note. See infra, Conditions precedent to de jure existence, p. 685.
 
 244 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 46 
 
 Sec. 46. Same. 
 
 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 
 
 1893. IN THE SUPREME COURT OF PENNSYLVANIA. 157 Pennsyl- 
 vania State Reports 59-74; 22 L. R. A. 276. 
 
 Appeal by Hallstead, guardian of Mary E. Clapp et al., from de- 
 cree of orphan's court dismissing exceptions to auditor's report in 
 estate of Henry Gibbs, deceased. 
 
 Exceptions to report of auditor on exceptions to administrator's ac- 
 count. Before METZGER, P. J., twenty-ninth judicial district, specially 
 presiding. 
 
 The case was referred to Stanley W. Little, Esq., as auditor. Before 
 the auditor, W. F. Hallstead, guardian of Mary E. Clapp et al., 
 claimed to recover from the estate of decedent, Henry Gibbs, the sum 
 of $2,900.46, the amount of a deposit in the Home Savings Bank, of 
 which decedent was a stockholder. The claim was made on the 
 ground that the bank was a general partnership, and that its stock- 
 holders were liable as partners for its debts. 
 
 The auditor reported in part as follows : 
 
 "The exceptants to the account of the administrator ask to take out 
 of the funds for distribution the sum of $36,167.53 and interest. This 
 request is based on the position that the 'Home Savings Bank* was 
 not a corporation, or a limited partnership, or a joint stock association, 
 and therefore was a common partnership. That, being a common 
 partnership, and Henry Gibbs having been a stockholder therein, his 
 individual estate is liable for the entire amount of money deposited in 
 said bank during the time said Gibbs was a member thereof, and un- 
 paid, with what interest may be due thereon. 
 
 "This statement of the case at once discloses its importance to the 
 parties concerned. The industry of counsel and the research of the 
 auditor have failed to find much authority in this state to aid in the 
 solution of the question which distinguishes this case. All fair minds 
 must agree that a party seeking to divert so large a fund from its 
 ordinary channel into the pockets of strangers, should present a case 
 strong in the fact and clear in the law. 
 
 "As a starting point in this investigation the auditor can find nothing 
 better than the opinion of Mr. Justice Williams, in the case of Hall- 
 stead v. Coleman, 143 Pa., at page 364, in these words: 'Now the 
 important question in this case, which lay at the threshold of plaintiff's 
 cause of action, was whether this bank was a partnership. The plaint- 
 iff alleged it and claimed to recover against the defendants as mem- 
 bers of the banking firm. The burden of proving the partnership 
 was on him, and until this proof was given the defendants were not 
 called upon to enter upon their defense.' Applying this law to this 
 case, which involves questions very similar to those in the case just 
 mentioned, the first question is, have the exceptants proved this was
 
 46 CORPORATIONS DE FACTO. 245 
 
 a partnership, of which Henry Gibbs was a member at the time they 
 deposited their money in this bank, and for all the debts and defalca- 
 tions of which his estate is liable? 
 
 "The evidence offered by them shows that in September, 1873, a 
 bank was opened at South Waverly, in this state ; that it had over its 
 door the name 'The Home Savings Bank;' that it organized by elect- 
 ing a board of directors and a president and cashier; that its capital 
 stock was divided into shares of $100; that to each holder of stock it 
 issued certificates of stock, saying upon their face that the bank was or- 
 ganized under act of the legislature of Pennsylvania ; that its authorized 
 capital was $100,000; that these certificates had on their back 
 blank powers of attorney for transfer, and in all respects were in the 
 form and style usually adopted by banks ; (that these certificates when 
 issued were signed by the president and cashier, and to some of them 
 the seal was affixed;) (17) (that it had a seal, which was affixed to 
 all cashier's checks;) (18) that said bank registered in the office of 
 the auditor-general under section i of act of June 7, 1879; that it 
 filed these separate reports in said office of its net earnings or income 
 under the tenth section of said act; (that it also filed in said office at 
 least six reports for publication, covering the four quarters of the year, 
 in accordance with the requirements of the acts of April 16, 1850, 
 and April 17, 1861 ;) (19) that it paid dividends to its stockholders; 
 that it failed and passed into the hands of a receiver ; that none of the 
 certificates of stock, certificates of deposit, books of account with cus- 
 tomers, bills, letters, checks or drafts bore upon their face the names 
 of any member other than the president and cashier, and the person to 
 whom addressed or issued ; that the transfer of any stockholder's in- 
 terest was at his own option, and neither such transfer, nor the death 
 of any stockholder worked any change in the name or conduct of the 
 business ; that so slight was the effect upon the business of the death 
 of Mr. Gibbs that a large amount of claims have been presented be- 
 fore the auditor for allowance for money deposited after his death, 
 or deposited before and re-deposited and new certificates therefor 
 issued after his death. (What is there in all this evidence from be- 
 ginning of the business to the failure tending to prove a partnership? 
 What in it all inconsistent with a corporate existence? Only one 
 thing has been urged upon the auditor, and that is to be found in the 
 form of the reports made by the bank to the auditor-general of its net 
 earnings or income under section 10 of act of 1879; (20) and the 
 position was taken that the provisions of this section only apply to un- 
 incorporated banks. While it is true that in the printed portion of 
 these reports the word 'firm' is used instead of 'corporation,' yet, 
 remembering that these printed forms were not made by the bank, 
 but were sent to it from the auditor-general's office, and that they 
 were made and returned under an act which is not applicable solely to 
 unincorporated banks, but applies to those which are incorporated as 
 well (and as at most was only the declaration of one member in 
 the absence of and without the knowledge of any others, the auditor 
 does not deem this single fact sufficient to overcome the preceding
 
 246 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 46 
 
 evidence of incorporation, or, more accurately, to prove the partner- 
 ship) (21). 
 
 "This comprises the affirmative evidence of the exceptants. It is 
 supplemented by some of a negative character, showing that searches 
 in the office of the recorder of deeds in this county have failed to find 
 any record of this bank as a limited partnership ; and that searches in 
 the auditor-general's office have proved equally futile in finding any 
 record of its incorporation. From these two negatives the auditor is 
 urged to find an affirmative. In other words, as no record can be 
 found showing this bank to have been a limited partnership or a cor- 
 poration, it must have been a simple partnership. 
 
 "Upon the certificates issued to Mr. Gibbs each time he acquired 
 stock in this bank, it declared it was organized under 'act of the leg- 
 islature of Pennsylvania.' If this was true, a search among those 
 local acts of the legislature which filled our pamphlet laws prior to 
 1874 might have been better rewarded. 
 
 "(But is it true that if this was not a corporation or a limited part- 
 nership, it follows necessarily that it was a common partnership? 
 This has been urged with much force, and the auditor admits that he 
 entertained that belief at the outset of this case ; but from authority 
 consulted, and reflection, he has come to a different conclusion. A 
 partnership inter se can not result from any aggregation of negatives. 
 The formation of such a partnership is a positive action and can not 
 exist without an agreement of some kind among all its members.) 
 (22) Parsons in his work on Partnership, in discussing who are liable 
 as partners, says: 'The first thing to be remembered is that persons 
 may be charged as partners of a firm, on either one or two perfectly 
 distinct grounds ; one of them is that the person actually is a partner, 
 the other is that he has, with his own knowledge and consent, held 
 forth as a partner to the person having a claim, or to the public gen- 
 erally.' (Upon which of these two distinct grounds can Mr. Gibbs 
 be charged as a partner in this case? Certainly not upon the first, 
 for no articles of partnership and no agreement to be partners, and 
 no agreement of any kind existed between Mr. Gibbs and the other 
 stockholders, and no person can be a partner in fact in a partnership 
 having no existence. If, then, this estate is to be charged it must be 
 upon the second ground above mentioned. But the evidence fails to 
 show any holding forth of him as a partner by the bank or by himself. 
 His name nowhere appears in any business transaction of the bank 
 with others; he took no part in its management or control; he never 
 held any official position therein ; no one of these claimants knew that 
 he was a stockholder therein at the time of depositing their money ; 
 the bank never represented to any one of them that it was a partner- 
 ship, and none of them dealt with it as such, and the evidence does 
 not show that Mr. Gibbs had any knowledge of the transactions be- 
 tween the bank and these claimants, or had a personal acquaintance 
 with them. But, on the contrary, the weight of the evidence tends 
 to show that this bank held itself out to the world and to Mr. Gibbs 
 as a corporation and nothing else.) (23.)
 
 46 CORPORATIONS DE FACTO. 247 
 
 "But it is said Mr. Gibbs took dividends on his stock, and hence 
 his estate is liable in this case. (As tending to discharge the burden 
 resting upon the claimants, to prove that this bank was a partnership 
 instead of a corporation, the fact of the receipt of dividends does not 
 go far;) (24) because the taking of dividends is as consistent with 
 the corporate, as with the partnership relation. 
 
 "(Nor does this fact, standing alone and disconnected with any 
 agreement between the stockholders, or any holding forth of Mr. 
 Gibbs as a partner by the bank or by himself, or with any credit given 
 to the bank by the claimants knowing Mr. Gibbs to be in any way 
 connected therewith, make his estate liable) (25) in the opinion of 
 the auditor. The old doctrine enunciated in Waugh v. Carver, 2 
 H. Bl. 235, that one taking a share of profits shall, by operation of 
 law, be made liable to losses, upon the principle that, by taking a 
 part of the profits, he takes from the creditors a part of that fund 
 which is the proper security to them for the payment of their debts, 
 is not the accepted law to-day in England, and, as the auditor thinks, 
 is not in accordance with the weight of authority in this country: 
 Edwards v. Tracy, 62 Pa. 380. (Profits can only exist after pay- 
 ment of all liabilities ; and how any one who shares only in what may 
 remain after all creditors are secured takes from them any security 
 is not quite plain.) (26) This is especially true of the banking 
 business. (Eveiy man buying stock in a bank that is conducted upon 
 usual and sound banking principles, as he has a right to expect it will 
 be, knows that he will get no dividends, only such as may remain after 
 all liabilities are deducted.) (27) When a person induces others to 
 credit a firm upon the assurance or belief that he is a member thereof, 
 his property should make good any loss thereby sustained by such 
 creditor, whether such person receives any dividend or not ; (but to 
 hold one who puts money into a business and draws out no part of 
 the principal, and but a small part of the interest, liable for all debts, 
 should rest on better reason than that he has reduced the creditor's 
 security. Mr. Gibbs' purchase of this stock and the receipt of divi- 
 dends thereon, did nothing to lessen the amount these exceptants 
 may, or have realized on their claims. He put in $6,000, and drew 
 out $1,820, thereby making the fund for creditors $4,180 larger.) 
 (28) That this fund was diverted or misappropriated, does not make 
 him liable ; it not having, been done by him or by any agent of his, 
 in fact or in law. 
 
 "It has been said in support of these claims that there must be a 
 liability somewhere, that persons doing business in this state must do 
 it subject to the liability either of incorporators, partners or individ- 
 uals. Suppose this is admitted. Is there a want of all liability here? 
 If this bank were solvent to-day, and these claimants brought suit 
 against it as a corporation, what would prevent their recovery? 
 (Having declared to the world for nearly eighteen years that it was a 
 corporation, and having induced these parties to trust it as such, what 
 court would now permit it to defend on the ground that it was not 
 incorporated, and thereby allow it to benefit by its own fraud?
 
 248 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 46 
 
 Clearly it would be estopped.) (29) Spahr v. Farmers' Bank, Car- 
 lisle, 94 Pa. 429, and authorities there cited. The inability of claim- 
 ants to get their pay seems to result more from a want of ability than 
 liability on the part of the bank ; a want from which this estate has 
 suffered in common with these parties. 
 
 "(The auditor is therefore of the opinion that the demand of the 
 claimant is not sustained;) (30) and dismisses the exceptions, feeling 
 satisfaction in the knowledge that his decision, if erroneous, can be 
 corrected in a higher court. In coming to this conclusion the auditor 
 has been influenced to some extent (he hopes not too far) by the 
 opinion of Judge Martin of the supreme court of New York, and the 
 many authorities cited by him in the case of the Merchants' National 
 Bank of Binghamton, New York, v. Charles E. Pendleton et al., 1 
 which is attached to this report ; which opinion has been recently 
 affirmed by the court of appeals of the same state." 
 
 Exceptions among others to above findings in brackets were dis- 
 missed. Whereupon exceptant appealed. 
 
 Errors assigned were (1830) dismissal of exceptions, quoting them. 
 
 Opinion by Mr. JUSTICE WILLIAMS, October 2, 1893. 
 
 This case involves substantially the same question that was heard 
 and determined in Hallstead v. Coleman, 143 Pa. 354. The appell- 
 ant seeks to charge the estate of Henry Gibbs with money deposited 
 by him, as guardian, in the Home Savings Bank, located at South 
 Waverly, on the theory that the bank was a general partnership and 
 that the decedent was one of the partners. The appellees deny that 
 the Home Savings Bank was a partnership, and assert that the dece- 
 dent purchased shares of the stock in the bank, as and for the shares 
 of the stock in an incorporated bank, and not otherwise. At this point 
 it seems desirable to define the words over which this contest extends. 
 
 First. What is a corporation? The several answers given by text 
 writers maybe reduced to the following formula: A corporation is an 
 artificial person created by the law as the representative of those per- 
 sons, natural or artificial, who contribute to, or become holders of 
 shares in, the property entrusted to it for a common purpose. As it 
 is the creature of positive law, its rights, powers and duties are pre- 
 scribed by the law. Beyond the legitimate purposes which it was 
 created to serve, and the lines of limitation the law has drawn around 
 it, it is without power to act or capacity to take. Thus a banking cor- 
 poration, while fully competent to do what is usual and necessary in 
 its own business, may not own and operate a railroad or engage per- 
 manently in any other business than that for which it was created. It 
 has neither the legal capacity, nor the right, to do so ; and if it under- 
 takes to go in any direction beyond its corporate powers its acts are 
 ultra vires. The creation of a corporation is not within the power of 
 the individuals who subscribe to its stock. It is exclusively the work 
 of the law; and the best evidence to the existence of a corporation is 
 the grant of corporate powers by the commonwealth. 
 
 Second. What is a corporation de facto? It is an apparent cor- 
 
 1 20 St. Rep. 891.
 
 46 CORPORATIONS DE FACTO. 249 
 
 porate organization, asserted to be a corporation by its members and 
 actually acting as such, but lacking the creative Jiat of the law. In 
 Taylor on Private Corporations, 145, it is said that a de facto corpo- 
 ration may exist "when a body of men are acting as a corporation 
 under color of apparent organization, in pursuance of some charter or 
 enabling act." Their organization may be imperfect, so that upon a 
 quo warranto they could not show a sufficient compliance with the 
 law to justify the exercise of corporate powers, but, as to parties deal- 
 ling with them, and as to each other, they are estopped to deny that 
 they are what they hold themselves out to be. In a recent case in 
 Minnesota, Finnegan v. The Knights of Labor Building Association, 1 
 it was held that a de facto corporation exists when these three things 
 concur, viz. : A law under which the alleged corporation might be 
 created ; an attempt to organize under the law ; an assumption and 
 exercise of corporate powers under such attempted organization. In 
 Church v. Pickett, 19 N. Y. 482, only two things were held necessary, 
 viz : "The existence of a charter or law under which a corporation with 
 the powers assumed might be lawfully created ; and the user by the 
 party to the suit of the rights claimed to be conferred by such a charter 
 or law." Where there has been a substantial compliance with the- 
 law the corporation is, of course, de jure. Where there has been no 
 substantial compliance, but there has been, nevertheless, an assump- 
 tion and exercise of corporate powers in pursuance of an attempted 
 organization, the alleged corporation is such de facto only. The 
 Minnesota courts hold the correct rule, and three things are necessary 
 to create the liability, a law or charter under which an organization 
 de jure might be effected, an attempt to organize which falls so far 
 short of the requirements of the law or charter as to be ineffectual, 
 an assumption and exercise of corporate powers notwithstanding the 
 failure to comply with the law or charter. 
 
 Third. What is a partnership"? Perhaps the best definition is 
 that given by Story : a relation created by a ''contract between two 
 or more persons to place their money, effects, labor, or skill, or some 
 or all of them, in lawful commerce and divide the profits between 
 them.' 1 '' Its foundation is a contract express or implied. It results 
 from the act of the parties, not from the act of the law. Hedge's 
 App., 63 Pa. 273, 17 Am. & Eng. Ency. of Law 829. See, also, 8 
 W. & S. 63; 16 Ohio 166; 14 Johns. 318; 49 111. 437. But as to 
 third parties one may be held liable as a partner by implication of 
 law arising upon his own acts, contrary even to his own intention. 
 Thus the officers and acting members of a corporation de facto may 
 be liable as partners if their conduct has led others to trust the con- 
 cern upon that basis. 47 Conn. 443. But without a contract of part- 
 nership, or such acts and declarations as lead others to infer its exist- 
 ence and to extend credit on that basis, there is no foundation on 
 which liability as a partner can rest. The best evidence of the exist- 
 ence of a partnership is the contract creating it. If proof of the 
 contract is not within reach, its existence may be inferred from proof 
 
 1 Infra, p. 614.
 
 250 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 46 
 
 of contribution to the partnership stock. If direct proof of contribu- 
 tion can not be had, it may be inferred from participation in profits. 
 In the absence of all this, the acts and declarations of the parties 
 sought to be charged may be resorted to. Participation in profits is 
 not conclusive proof of the existence of the partnership relation. 
 Edwards v. Tracy, 62 Pa. 374. But both in England and in this 
 country it is cogent evidence upon the question, It puts the defendant 
 upon his proofs explanatory of the fact. If he is able to show that 
 such participation was referable to some other reason, such as com- 
 pensation for services rendered by an agent, broker, salesman or other- 
 wise, the prima fades is overcome. So, if the participation in the 
 profits is referable to some other relation other than that of partner- 
 ship between the participants, such as membership in a joint-stock 
 association or a corporation, the effect of proof of participation will 
 be overcome. 
 
 In the light of these well settled rules, let us consider briefly the 
 position of the parties and the important findings of fact made by the 
 learned auditor in this case. The claimant's right to share in the fund 
 in court rested on the theory that the Home Savings Bank, in which 
 the money of his wards had been deposited, was a partnership, and 
 that the decedent was a partner. The burden of proving the fact that 
 the bank was a partnership was on him ; and as was said in Hallstead 
 v. Coleman, 143 Pa. 364, "until that proof was given, the defendants 
 were not called upon to enter upon their defense." The proof made 
 upon this subject showed the organization of a bank under the name 
 of the Home Savings Bank, with a president, cashier, and a board of 
 directors. This is the mode of organization usually adopted by cor- 
 porations, and did not tend to prove a partnership. It was then shown 
 that the decedent bought and held certificates of stock in the bank, 
 after its organization, which recited not the formation of a partnership, 
 but the organization of a bank under the laws of the state, and the 
 division of its capital into shares of one hundred dollars each. This 
 is not the usual way in which partnerships are created and partners 
 admitted. It is the usual way in which stocks are issued and trans- 
 ferred in corporations. Proof was then made of the receipt by the 
 decedent of several dividends upon his stock. These did not purport 
 to be shares in the profits of firm business, but dividends, declared in 
 the manner usual among corporations, upon the .stock of the bank ; 
 and were paid by dividend checks drawn under the authority of the 
 board of directors. The only other evidence was the returns made 
 by the officers of the bank under the tax law of 1879, which threw 
 very little light upon the character of the organization of the bank. 
 Upon this proof the questions for the auditor were whether the bank 
 was shown to be a partnership, and the decedent a partner. The 
 bank did business for a number of years and then failed. Its books 
 and papers were in the hands, or subject to the control, of the receiver. 
 The manner of its organization was not shown ; the partnership agree- 
 ment, if any such existed, was not produced. 
 
 No proof was given that the officers or stockholders claimed or held
 
 46 CORPORATIONS DE FACTO. 2$ I 
 
 out to the public that the stockholders were partners or the bank a 
 partnership enterprise. It is not alleged that the decedent participated 
 in any manner in the business, or exercised any control over it. The 
 whole case against him rested on the fact that he had purchased shares 
 in a bank, then organized and doing business, and received dividends 
 declared by the directors and paid to him in a cashier's check. We 
 are not surprised that the auditor was led to ask, "What is there in all 
 this evidence from the beginning of the business to the failure tend- 
 ing to prove a partnership?" Nor that he answered his own question 
 by holding that this proof was insufficient to establish, prima facie, 
 the existence of the partnership relation. On the other hand, there 
 was much tending to show that Henry Gibbs understood that he was 
 the holder of stock in an incorporated bank, and that the bank assumed 
 and exercised corporate powers; and was dealt with by the public as 
 a corporation. The form of its certificates, the manner of their trans- 
 fer, the election of directors by the stockholders, the management of the 
 business of the bank by the directors and the officers elected by them, 
 the mode of declaring and paying dividends, were all suggestive of a 
 corporation. They were not suggestive of a partnership. We are 
 unable, therefore, to say that the auditor erred in finding that the bank 
 was not shown to be a partnership. The learned judge who heard 
 the exceptions to this report seems to have concurred with the auditor, 
 and we require under such circumstances to be satisfied that a mistake 
 was made before interfering with the findings. We are not so satis- 
 fied ; but are of opinion that the state of the evidence justified the 
 auditor's conclusion. This disposes of the whole case. 
 
 It is said with earnestness and energy that this is a case in which 
 the depositors deserve protection. We assent to this proposition. 
 We can extend protection to them, however, in accordance with the es- 
 tablished rules of law, and in no other manner. What the Home Sav- 
 ings Bank was in its organization, in what capacity those who held 
 its stock were liable to its depositors are questions not now before us. 
 It may have been a corporation de jure, a corporation de facto, a joint- 
 stock association or a general partnership so far as we are able to de- 
 clare. What we say is that the evidence in this case is not sufficient to 
 make a case, prima facie, against Henry Gibbs as a partner, or the 
 bank as a general partnership. It does not appear that the bank was 
 organized as a partnership, conducted business as a partnership, or 
 held itself out to the public as such. It does not appear that Gibbs 
 understood the bank to be other than what his certificates of stock in- 
 dicated ; or that he treated the business of the bank as that of a firm, 
 or exercised the slightest control over, or influence upon it, or mislead 
 the appellant or any other depositor by act or word as to his relation 
 to it. What does appear is that he purchased shares of stock in the 
 usual manner, and received some dividends thereon. These circum- 
 stances are naturally referable to the relation of a stockholder to a 
 corporation; and standing alone, are. not proof, prima facie, of the 
 appellant's proposition that the bank was organized as a partnership, 
 and that the purchase of shares of stock made Gibbs a partner. If he
 
 252 GIBBS' ESTATE. HALLSTEAD'S APPEAL. 46 
 
 had received profits from the business apparently conducted by a 
 partnership, he would have been put upon his explanation, and, fail- 
 ing to make one, would have been held to be a partner. The burden 
 in that case would have been on him. Having received dividends de- 
 clared by a board of directors upon the stock into which the capital of 
 the bank was divided, he could rest securely upon the apparent char- 
 acter of the transaction and the inferences naturally to be drawn from 
 it. The burden of explanation necessary to give another character to 
 the dividend declared, and to the stock on which it was paid, was on 
 him who asserted that such other was the true character of these cir- 
 cumstances. 
 
 It was also said in the argument that the recitals in the stock cer- 
 tificates are not evidence of actual incorporation as against a 
 stranger. This must be granted. They do not prove incorporation. 
 But the appellees are not bound, upon the evidence in this case, to 
 prove incorporation. The significant question is, where is the proof 
 that this bank was organized or conducted as a partnership concern ? 
 The certificates do not prove that, but the inferences naturally drawn 
 from them tend the other way. It will not do for the appellants to 
 say: "We have shown that the decedent was a stockholder in this 
 bank and received dividends upon his stock, now you must show that 
 the bank was incorporated or be liable to us as a general partner." 
 This is attempting to change the burden of proof. Again the learned 
 counsel says: "This is the sole fact (the form of the certificate) that 
 is before the court, and if it is sufficient to authorize a court to find an 
 incorporation in this case, why is it not in any other?" The court 
 below did not find that the bank was a corporation. That question 
 was not before it. It was alleged by the appellant to be a partner- 
 ship, but the auditor and the judge of the court below regarded the 
 evidence in support of that allegation insufficient to justify a finding 
 that the bank was not "organized by act of the legislature of 
 Pennsylvania," as its certificates alleged, but by the parties as co- 
 partners. The appellant failed, not because the bank was held to be 
 a corporation, but because it was not shown to be a partnership. Until 
 evidence in support of the appellant's position is given sufficient to 
 lead fairly to the conclusion that the bank was organized as a partner- 
 ship, or that Henry Gibbs contracted to become a partner when he 
 bought his stock, or that he led the public by his acts and declara- 
 tions to deal with him or the bank on the basis of his being a partner, 
 there is nothing that makes it the duty of his representatives to enter 
 upon a defense, or that makes it possible for the court to decide upon 
 the character of the bank. In such a state of the evidence the court 
 can only say, as the court below said in this case, "It is not shown 
 that the bank is a partnership," and for that reason the claimant fails. 
 
 The assignments of error are not sustained, and the decree is af- 
 firmed. 
 
 Note. See infra, Conditions precedent to de facto existence, p. 614.
 
 47 CORPORATIONS BY ESTOPPEL. 253 
 
 Sec. 47. Same. 
 
 MCCARTHY v. LAVASCHE. 
 
 1878. IN THE SUPREME COURT OF ILLINOIS. 89 111. Rep. 270- 
 277, 31 Am. R. 83. 
 
 Appeal from the superior court of Cook county, the Hon. JOSEPH 
 E. GARY, Judge, presiding. 
 
 Mr. Justice WALKER delivered the opinion of the court. 
 
 The National Loan and Trust Company was organized under an 
 act of the general assembly, approved on the pth of March, 1867. 
 Under the provisions of an act adopted and approved the 26th oi 
 March, 1872, the corporation changed its name to the "Bank of Chi- 
 cago," and appellee, being a creditor of the bank, brought an action 
 of debt against appellant for its recovery. 
 
 The declaration avers that the corporation was, among other things, 
 authorized to borrow money, to receive money on deposit, to loan 
 money and make discounts, etc.; that on the 26th of August. 1873, 
 the bank owed, and was and still is indebted to appellee in the sum 
 of $100 for money received of appellee on deposit; that appellant 
 then was, and still is, a stockholder and the owner of one share of 
 $100 in the bank; that the bank had become, and still is, utterly in- 
 solvent, and that appellant had not assigned or transferred his stock in 
 the bank. 
 
 The declaration further avers that the charter of the corporation 
 contains this provision: "And each stockholder shall be liable to 
 double the amount of the stock held or owned by him, and for three 
 months after giving notice of transfer, as hereinafter mentioned," and 
 that, by virtue of this provision of the act of incorporation, appellant 
 as such stockholder, was individually liable to the creditor or credit- 
 ors of the bank in double the amount of the stock held by him, where- 
 by he became liable to pay appellee. 
 
 A demurrer was filed to the declaration, which the court overruled, 
 and appellant abided by his demurrer; and the court thereupon ren- 
 dered judgment in favor of plaintiff, and assessed the damages and 
 rendered judgment for $110.50, and defendant appeals, and assigns 
 errors. 
 
 It is urged that the corporation was never legally organized, as the 
 act under which the stockholders incorporated was unconstitutional 
 and void ; that if not, then the clause in the charter rendering stock- 
 holders liable is too vague to render them liable to the individual 
 creditors of the company ; or if it shall be held that they are so liable 
 then the remedy is in equity, against all the stockholders. 
 
 On the other hand, it is contended that the law does not contravene 
 the constitution ; but if it should be so held, the stockholders having 
 organized the corporation, and held themselves out to the world as
 
 254 M'CARTHY v. LAVASCHE. 47 
 
 such, and thereby obtained credit and incurred indebtedness, they are 
 estopped to deny the validity of the act of their organization under it, 
 and that a reasonable and fair construction of the clause of the act 
 quoted renders the shareholders individually liable to each and every 
 creditor, and that the remedy for a recovery on the liability is com- 
 plete at law. These are the questions raised and discussed on this 
 record. 
 
 Even if the law is unconstitutional, can the promoters and those 
 engaged in its operation be heard to say that they may relieve them- 
 selves from liability, and from all their engagements, because the law 
 under which they have acted is prohibited by the organic law ? May 
 shrewd, intelligent persons go to the general assembly and procure an 
 act that they should know is prohibited by the fundamental law, avail 
 themselves of its benefits, obtain the money of the uninformed and 
 the confiding, and then be heard to say, we are not incorporated, our 
 charter and organization are void, and we will hold your money? Or, 
 may those who promoted the enterprise by becoming shareholders, to 
 enable the company to organize, and to procure other people's money, 
 be heard to interpose such a defense ? The presumption is, that each 
 subscriber for stock knew at the time of the subscription that the char- 
 ter contained the provision rendering him liable for double the sum he 
 subscribed, and such persons could not but have known that this pro- 
 vision would contribute largely to give credit to the concern and greatly 
 augment its business. 
 
 The subscribers for shares of the stock, no doubt, expected to reap 
 large profits, and expected those profits to be greatly enhanced by this 
 provision. It enabled them to point to it and assure individuals and 
 the public that the institution was safe, as, if the business was not 
 lucrative, all the stockholders were severally liable for double the 
 amount of their subscriptions. They thus/ no doubt, did increase 
 their business, and thus obtained money and credit, which now, when 
 the institution has proved a failure, they endeavor to avoid paying by 
 urging that their organization, and, consequently, their subscriptions to 
 its stock, were void. Fair dealing would say that they should be 
 estopped from interposing such a defense. 
 
 The question is by no means new in the jurisprudence of this coun- 
 try. The question has been frequently considered in the courts, in 
 the form here presented or in analogous cases. See Baker v. Bran- 
 nan, 6 Hill 47; Embry v. Conner, 3 N. Y. 511 ; Eaton v. Aspin- 
 wall, 19 N. Y. 119; Mead v. Keeler, 24 Barb. 25; Ferguson v. 
 Landran, 5 Bush (Ky. ) 230. These were all cases where the parties 
 were held to be estopped from insisting that the organization was 
 illegal, or a law unconstitutional, because of the acts or consent of the 
 parties urging the objections. 
 
 In our own court analogous questions have been presented and de- 
 termined. In the case of Tarbell v. Page, 24 111. 46, it was held that 
 in a suit by a creditor against a stockholder, the former could not 
 show that the corporation had failed to file a certificate of organiza-
 
 47 CORPORATIONS BY ESTOPPEL. 
 
 tion with the secretary of state ; that in a collateral proceeding 1 the 
 regularity of the corporate organization could not be questioned. And 
 this is a rule of uniform application. If, then, the plaintiff, by con- 
 tracting with a body exercising the franchises of a corporation, is 
 estopped from denying the legality of its organization, the same rea- 
 son must apply with increased force to prevent a stockholder in such 
 an organization from questioning the legality of the corporation. 
 
 That the legality of an incorporation can not be attacked collater- 
 ally, see Rice v. Rock Island and Alton Railroad Co., 21 111. 93. 
 Goodrich v. Reynolds et al., 31 111. 490, and numerous subsequent 
 cases. In fact, the books abound in adjudged cases which hold that 
 a person doing an act or making a statement which misleads another 
 to his injury shall not be permitted to question the act or the truth of 
 the statement. So, on the same principle, appellant should be estopped, 
 as his acts contributed to the organization of this company, and he 
 held himself out to the world as a stockholder therein, and liable to 
 the extent of double the amount of his subscription. Had the com- 
 pany not been organized, appellee would not have lost his money, 
 and appellant thus contributed to that loss. 
 
 In Ferguson v. Landran, supra, appellants denied the validity of a 
 tax levied under a local law, but the court held they were estopped 
 to deny the validity of the law, because they had approved it and 
 availed of its benefits and aided in procuring its passage. The court 
 held the law unconsitutional, but enforced the tax. The court says, 
 "parties are estopped from denying the constitutionality of a local 
 statute by participating in the procurement of its passage, and by 
 ratifying, acquiescing in, or approving it after its passage, and by 
 becoming recipients of benefits under it ; and all such persons are held 
 to be liable to the tax authorized by such enactment, although it is 
 unconstitutional and invalid to all other persons." 
 
 Here, appellant approved of the act, and availed himself of its 
 benefits by subscribing for stock and becoming entitled to exercise all 
 the rights and privileges of a stockholder in the corporation. Justice, 
 morality, public policy and precedent all demand that appellant 
 should be estopped from denying the constitutionality of the law. 
 If stockholders might shoiv the law unconstitutional, and their 
 organization void, and all their acts unauthorized, then all persons 
 engaged in the organization of the corporation should be held liable 
 for the consequences of their illegal and unauthorized acts, inde- 
 pendent of the clause in their charter. So they should, in no event, 
 escape liability for obtaining money -without authority. 
 
 Suppose these stockholders had formed a partnership, with articles 
 of partnership containing precisely the same provisions that are con- 
 tained in their charter, and had put in capital stock to the same ex- 
 tent, and the same amounts they each subscribed in shares, would any 
 one question the legality of the organization, or the legal liability of 
 each of the members of the firm ? We apprehend these propositions 
 would be conceded. And if so, in principle, what distinction can be
 
 256 M'CARTHY v. LAVASCHE. 47 
 
 taken between the supposed case and the one at bar ? Had the share- 
 holders written under the charter a statement that it was unconstitu- 
 tional and void as a law, but that they adopted it as articles of partner- 
 ship, and that each would be bound by its terms and conditions, and 
 would pay in, for capital stock, the sums set opposite their several 
 names, and they had signed it, and specified the sum to be paid in, 
 could it be doubted that each member would have been liable, under 
 the articles thus executed? And if so, when stripped of mere form, 
 and substance is alone considered, this organization is in effect the 
 same. We can perceive no well-grounded distinction. We are 
 therefore of opinion that, independent of all constitutional questions, 
 each shareholder became liable under the charter as articles of part- 
 nership, as it operated as an agreement by each subscriber to be liable 
 to creditors to double the amount each subscribed. 
 
 It is urged that under the language of the third section of the char- 
 ter, although a liability may be created to double the amount of the 
 stock, still it is to the corporation and not to the creditors. The ob- 
 vious purpose of the general assembly was to secure the creditors of 
 the institution. And if so, why make a provision which the creditor 
 could not, and the directors would not, in all probability enforce ? 
 On their refusal the creditor, if that construction is to be given, 
 would be compelled to proceed by mandamus, had the law been 
 valid, to compel suits to be brought by the corporation against share- 
 holders, and then in all probability, after years of delay in litigation, 
 to get the money into their hands, a further delay would be liable to 
 ensue until a recovery could be had against the bank and the money 
 realized at the end of a long, obstinate and expensive litigation. Such 
 a course could not, we think, have been intended. Such a require- 
 ment would greatly irnpair if it did not render the security worthless. 
 We must therefore conclude, that as the provision was intended to 
 secure the creditor, it was intended that his remedy should be direct 
 and effective, and that he might sue in his own name and at law. 
 
 If this association only amounted to a partnership, as we have seen 
 it was, then the firm could not sue one of its members to compel the 
 payment. Nor do we perceive how the firm could maintain a bill for 
 the purpose. Hence we must conclude that it was intended that the 
 liability should be direct to the creditor and not to the firm. 
 
 It is next urged that a remedy is in equity and not at law. Actions 
 at law were maintained in the cases of Culver v. Third National Bank, 
 64 111. 528, and Corwith v. Culver, 69 111. 502, under a statute creat- 
 ing a liability of the stockholders. It was then urged that the remedy 
 was in equity, but we held that it was a legal liability and could be 
 enforced by an action at law. That statute did not determine, in 
 terms, in which forum the remedy should be sought. But it being a 
 legal right, the remedy was held to be at law. 
 
 It is urged that the liability should be construed to be joint against 
 all the stockholders. To do so would, we think, do violence to the 
 language of the statute; the language is, "each stockholder shall be
 
 47 CORPORATIONS BY ESTOPPEL. 
 
 liable to double the amount of stock held or owned by him, for three 
 months after giving notice of transfers, as hereinafter mentioned." 
 This language renders the stockholders severally and individually 
 liable. 
 
 The judgment of the court below must be affirmed. 
 
 Judgment affirmed. 
 
 Note. See infra, Conditions precedent to existence by estoppel, p. 630. 
 17 WIL. CASKS.
 
 PART II. 
 
 THE BODY CORPORATE, ITS PARENTAGE, CONCEP- 
 TION, BIRTH, ANATOMY, LIFE AND DEATH. 
 
 TITLE I. PARENTAGE THE STATE AND PROMOTERS. 
 SUBDIVISION I. THE STATE, ITS POWER TO CREATE. 
 
 CHAPTER 2. 
 NATURE OF THE POWER AND METHODS OF EXERCISE. 
 
 ARTICLE I. NATURE OF THE POWER. 
 
 Sec. 48. "The state creates the corporation upon the application 
 of individuals, who are called incorporators. The incorpo- 
 rators then organize the corporation. The functions of the 
 incorporators thereupon cease, and the stockholders proceed 
 to contribute the capital and elect directors. The directors 
 then start and continue to keep in operation the powers of the 
 corporation." i Cook on Stock and Stockholders, 2, 3d 
 ed., p. 4. 
 
 (<z) The power to create is an incident of sovereignty, and the 
 sovereign's consent is essential. A corporation is the creature of 
 the sovereignty that creates it, and to that alone is it amenable for 
 violation or usurpation of its purely corporate authority. 
 
 STATE OF CONNECTICUT, Ex EEL. WILCOX, v. CURTIS. 1 
 
 1868. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 35 
 Conn. 374-384, 95 Am. Dec. 263. 
 
 [Information in the nature of a quo tvarranto upon the relation of 
 Wilcox, who claimed to have been duly elected a director of the First 
 National Bank of Meriden, Conn., but who claimed to have been de- 
 prived of exercising the franchises thereof by Curtis, who, without 
 warrant, exercised the same and wrongfully excluded the relator. The 
 suit was brought in the superior court for the county of New Haven. 
 
 1 Statement of facts abridged. Arguments omitted. 
 
 (258)
 
 48 STATE'S POWER TO CREATE. 259 
 
 Defendant demurred, and the case was reserved for the advice of the 
 supreme court.] 
 
 BUTLER, J. The power to create a corporation is an attribute oj 
 sovereignty ; and the government of the United States created the 
 corporation in question, in the exercise of that independent and su- 
 preme sovereign power which the people delegated to it by the consti- 
 tution. It is, therefore, the creature of that sovereignty, and amena- 
 ble to, and controllable by it, and by none other, 
 
 An information in the nature of a quo warranto against a corpora- 
 tion lies only at the instance and in the name of the sovereign power 
 which created it. (5 Wheaton 291.) The original writ so lay against 
 any person who usurped any franchise or liberty against the king, or 
 for misuser or non-user of franchises or privileges granted by him. 
 The information in the nature of a quo warranto, authorized by the 
 statute of the pth Anne, at the relation of any person against any 
 other person usurping, intruding into, or unlawfully holding any fran- 
 chise or office in any corporation, is but an extension and simplifica- 
 tion of the ancient writ, and is grantable only where that would lie. 
 In England it lies in the name of the sovereign against those who 
 usurp such franchises, because such usurpation is in derogation of the 
 rights of the crown. In this country it lies in the name of the gov- 
 ernment, against those who usurp such franchises, because grantable 
 or granted by the commonwealth. 
 
 "The state, or common-wealth," says Mr, Angell in his work on 
 corporations, "stands in the place of the king, and has succeeded to 
 all the prerogatives and franchises proper to a republican government. 
 With us therefore to assume a power which can not be exercised 
 without a grant from the sovereign authority, or to intrude into the 
 office of a private corporation, contrary to the provisions of the stat- 
 ute which creates it, is, in a large sense, to invade the sovereign pre- 
 rogative and to assume or violate a sovereign franchise." And the 
 cases cited fully sustain his positions. Upon the same principles the 
 information can lie only in the name of the United States and in the 
 federal courts, against those who invade a franchise grantable or 
 granted by the national government. 
 
 As then the corporation in question is the creature of federal sover- 
 eignty, and in respect to its internal organization, operation and con- 
 tinual existence is amenable to and controllable by that sovereignty 
 alone ; and as the writ in question is properly grantable by that sover- 
 eignty alone whose franchise has been invaded and violated, it would 
 seem upon principle too clear for argument (if there be nothing more 
 in the case) that the relator has erred in invoking the interference of 
 another uninvaded and unviolated sovereignty, and the court below 
 have erred in assuming jurisdiction and granting the writ. 
 
 Such is the obvious prima facie character of the case before us. 
 But the plaintiff insists that there is no error and makes several 
 claims, founded upon the complex character of sovereignty as it ex- 
 ists in this country, divided between the national and state govern- 
 ments.
 
 26O THE STATE V. CURTIS. 48 
 
 1. He insists in the first place that this institution is amenable to 
 state sovereignty, because it is located and its officers discharge their 
 duties and perform their Junctions within this state. This claim is 
 groundless. 
 
 It is indeed true, in the language of the supreme court of the United 
 States (2 Howard 555), that a "corporation created by a state to per- 
 form its functions under the authority of that state, and only suable 
 there, though it may have members out of the state, is a person, 
 though an artificial one, inhabiting and belonging to that state, and, 
 therefore, entitled for the purpose of suing and being sued to be 
 deemed a citizen of the state. ' ' But this is not such a corporation. It was 
 not created by us ; it does not perform its functions under our au- 
 thority, and it is the creature of and controllable by another and su- 
 perior sovereignty. That other sovereignty is exercised over the whole 
 country irrespective of state lines or state authority. It places its 
 officers, agents and instruments wherever its necessities or its interests 
 require, and necessarily within the limits of the states. With those 
 officers, and agents, and instruments, in the exercise of their functions, 
 state authority can in no way interfere. The national banks are its 
 instruments, by which it performs its functions in establishing a na- 
 tional currency ; on that fact their constitutionality is placed, and in 
 the exercise of the powers conferred upon them they are as indepen- 
 dent of state control as the army, or navy, or the officers of the sub- 
 treasury and custom-house, or any other instrumentality by which the 
 functions of the federal government are performed. No other view is 
 compatible with the principles of our own jurisprudence, or those 
 recognized and declared by the supreme court of the United States in 
 numerous cases, and particularly in the exhaustive opinion of Chief 
 Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316. 
 
 2. The relator insists, in the second place, that the superior court 
 has jurisdiction of the defense set forth in the information, because 
 the judicial power of the federal and state governments is exercised 
 concurrently by the courts of either, unless congress has conferred 
 exclusive jurisdiction, in respect to the subject-matter, on the federal 
 courts, and no such exclusive jurisdiction has been conferred in rela- 
 tion to this. This claim is equally unfounded. 
 
 It is undoubtedly true that the state courts retain jurisdiction over 
 some matters, to which, by the constitution and laws of the United 
 States, jurisdiction is given to the federal government and courts, and 
 in respect to which jurisdiction appertained to and was exercised by 
 the state courts prior to the adoption of that constitution. On that 
 subject the rule seems to be, that the state courts retain the jurisdic- 
 tion which they had before that event except where it was taken away by 
 an exclusive constitutional grant of jurisdiction to the federal govern- 
 ment, or congress have made the jurisdiction exclusive in the federal 
 courts, or the exercise of the jurisdiction is repugnant to, and incom- 
 patible with such exercise by those courts. 
 
 But the cases where such concurrent jurisdiction can be entertained
 
 48 STATE'S POWER TO CREATE. 261 
 
 by the courts of the states are few. Most of those where such jurisdic- 
 tion has been sustained by the supreme court of the United States, 
 and all to which we have been particularly referred, were cases of a 
 criminal character where the act was an offense against both sover- 
 eignties, and punished by the law of the state. Here there could be 
 no jurisdiction anterior to the adoption of the constitution. Nor has 
 there been any invasion of the sovereignty of this state or violation 
 of its laws, or any offense which the state is called upon to redress in 
 its own behalf. It is a clear principle that where there has been no 
 offense there can be no judicial jurisdiction; and equally clear that a 
 state has no authority to enforce a national law in behalf of the na- 
 tional government. 
 
 And this is one of that class of cases where jurisdiction in the state 
 court is utterly incompatible with the necessary jurisdiction of the 
 national government. The corporation in question being the creature 
 and instrument of that government must necessarily be subject to that 
 alone. By the common law, and by our statute, an information of 
 this character lies as well to deprive a corporation of its charter as to 
 determine the rights of its competing officers ; and if the relator is 
 right in this claim, its charter can be taken away and its franchises 
 seized by the courts of the state. Nothing could be more repugnant 
 in character than such an unauthorized interference, for such a pur- 
 pose, or for any purpose. 
 
 3. The plaintiff claims in the third place, that concurrent jurisdic- 
 tion of the subject-matter is conferred upon the state courts by the 
 amended currency act of 1864, section 57, which provides, "that suits, 
 action and proceedings against any association, under this act, may 
 be had in any circuit, district, or territorial court of the United States, 
 held within the district in which such association may be established ; 
 or in any state, county or municipal court in the county or city in 
 which said association is located, having jurisdiction in similar cases. 
 Provided, however, that all proceedings to enjoin the comptroller 
 under this act shall be had in a circuit, district or territorial court of 
 the United States held in the district in which association is located." 
 To this claim also we find it impossible to assent. 
 
 The information in the nature of a quo ivarranto, although grant- 
 able to determine a private right to an office in a corporation, between 
 party and party, as well as to determine the right of the corporation 
 to the franchise assumed, and a civil proceeding must be filed and 
 issued in the name of the sovereignty which created the corporation, 
 and is still so far forth a prerogative writ. Congress, in the exercise 
 of its authority to apportion the judicial power among the inferior fed- 
 eral courts, has been very cautious in conferring the power to grant 
 prerogative writs. That power is nowhere conferred, in express 
 terms, upon the circuit or any other federal court located in the states. 
 They did attempt to confer the power to grant a mandamus upon the 
 supreme court, as a matter of original jurisdiction, but that court, in 
 Marbury v. Madison, held the act unconstitutional, on the ground
 
 262 THE STATE V. CURTIS. 48 
 
 that it was not competent for congress to increase the original jurisdic- 
 tion of the supreme court. By the eleventh section of the judiciary 
 act of 1789 jurisdiction was given to the circuit courts of all suits of a 
 civil nature at common law and in equity to the amount of $500 or 
 more between certain parties. This writ, though in its nature grant- 
 able at the discretion of the court, is one of right, and constitutes a suit 
 within the meaning of that term as used in the act, but it is not of the 
 character, or between the parties contemplated by it. 
 
 The i4th section also authorizes the circuit and other federal courts 
 "to issue writs of habeas corpus and all other writs not specially 
 provided for by statute, which may be necessary for the exercise 
 of their respective jurisdictions, and agreeable to the principles and 
 usages of law." . But the supreme court, in Mclntire v. Wood (7 
 Cranch 504), and M'Lung v. Silliman (6 Wheaton 598), and Ken- 
 dall v. The United States (12 Peters 524), held that the circuit 
 courts, within the states, had not power under those sections to grant 
 a mandamus, which is one of those writs, unless necessary for the 
 exe>:cise of their jurisdiction within the limits prescribed, although the 
 power was sustained in the latter case, as having been given to the 
 circuit court of the District of Columbia. The granting of those 
 writs undoubtedly appertains to the judicial power of the government, 
 but that part of the power seems not to have been conferred by con- 
 gress upon any of the courts but that of the District of Columbia, in 
 prescribing their jurisdiction, except as incident to and necessary for 
 the exercise of the other special powers with which they are clothed. 
 The circuit court of the United States for this district has not the 
 power, therefore, to issue a quo warranto in a case like this, by virtue 
 of any general jurisdiction. And is it to be assumed that congress, 
 having been thus cautious of entrusting the federal courts with that 
 power, intended nevertheless to confer it by the language quoted, and 
 not only on the federal, but upon the state courts; to delegate to the 
 state courts a part of their sovereignty; to submit a corporation a 
 creature of their creation, and an instrument by which they perform 
 one of their functions to the absolute and unrestrained supervision 
 and control of the courts of another sovereignty, especially when by 
 the act which created it they reserved to .their own officers unusual 
 supervisory power and control? I think not. And if the case turned 
 upon that question alone, I should be strongly inclined to the opinion 
 that congress intended by the clause quoted to provide a more con- 
 venient forum for determining the ordinary questions which must 
 naturally arise between the corporations and others in the course of 
 their business, and intended no more. 
 
 But there is another and conclusive objection to this claim of the 
 plaintiff. The section in question authorizes suits against the cor- 
 poration only. This is not a suit against the corporation, but a pro- 
 ceeding by one individual against another individual competing for 
 the office of director of it, and it is not within the letter or spirit of 
 the act.
 
 49 THE STATE ONLY CAN CREATE. 263 
 
 For these reasons we advise that the information is insufficient and 
 the demurrer should be sustained. 
 
 In this opinion the other judges concurred. 
 
 1809, Commonwealth v. Union Ins. Co., 5 Mass. 230, 4 Am. Dec. 50; 1824, 
 Commonwealth v. Murray, 11 Serg. & R. (Pa.) 73, 14 Am. Dec. 614; 1836, Peo- 
 ple v. Rensselaer, etc., R. Co., 15Wend. 113, 30 Am. Dec. 33, note 44; 1841, 
 State v. Harris, 3 Ark. 570, 36 Am. Dec. 460; 1841, State v. Evans, 3 Ark. 585, 
 36 Am. Dec. 468 ; 1864, People v. River Raisin, etc., R. Co., 12 Mich. 389, 86 Am. 
 Dec. 64; 1867, Commonwealth v. Cluley, 56 Pa. St. 270, 94 Am. Dec. 75; 1888, 
 Moore v. Brooklyn, etc., R., 108 N. Y. 98; 1892, Pickett v. Abney, 84 Texas 
 645; 1893, Republican Mountain Silver Mines v, Brown, 58 Fed. Rep. 644, 24 
 L. R. A. 776; 1897, Madden v. Penn. Elec. L. Co., 181 Pa. St. 617, 38 L. R. A. 
 638; 1898, Coquard v. National L. O. Co., 171 111. 480, 49 N. E. Rep. 563; 1899, 
 Clark v. Mutual Res. F. L. Ass'n, 14 App. Gas. (D. C.) 154, 43 L. R. A. 390. 
 
 Sec. 49. (#) None but the sovereign can create. 
 
 THE MEDICAL INSTITUTION OF GENEVA COLLEGE v. PATTER- 
 SON. 1 
 
 1845. IN THE SUPREME COURT OF NEW YORK, i Denio (N. Y.) 
 
 6169. 
 
 [Suit by the medical institution upon a note given by defendant pay- 
 able to the Medical Institution of Geneva College. Special verdict 
 raising the question as to the plaintiff's corporate existence. ] 
 
 By the Court: BRONSON, C. J. If "The Medical Institution of Ge- 
 neva College" is not a corporation it has no capacity to sue, and the 
 defendant is entitled to judgment. This is the only question made 
 by the special verdict. The principal argument for the plaintiffs de- 
 pends upon maintaining the following propositions: i. Each of the 
 English Universities of Oxford and Cambridge has the power of creat- 
 ing subordinate corporations, such as colleges for giving instruction 
 in the liberal arts and sciences. 2. Columbia College, in the city of 
 New York, has the same power in this respect as the English uni- 
 versities. 3. Geneva College has the same powers as Columbia 
 College, and, 4. Geneva College, thus having the power, has created 
 a corporation by the name of "The Medical Institution of Geneva 
 College." If any one link in this chain is broken, the whole argument 
 falls to the ground. 
 
 [By the charter Geneva College was given all the corporate rights 
 and privileges of Columbia College, the governors of which were 
 empowered by their charter from the king to appoint a president, 
 professors and other officers, who could exercise their office, as freely 
 and fully as any of the like officers in the English universities; the 
 governors also had the power to make laws and ordinances for the 
 government of the college and students, and to grant degrees the same 
 as English universities.] 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 264 THE CASE OF SUTTON'S HOSPITAL. 50 
 
 These are all the provisions of the charter to which we have been 
 referred in support of the plaintiff's case; and, whatever may be the 
 powers of the English universities, I think it entirely clear that Co- 
 lumbia College has no power to create corporations of any kind, or 
 for any purpose. It can not be necessary to discuss the question. It 
 is enough to say that there is nothing in the charter which looks like 
 a license or authority to erect corporations. The chancellor of the 
 university of Oxford has power by charter to erect corporations. 
 ( i Kyd on Corp. 50 ; i Black. Comm. 474. ) But Columbia College has 
 no chancellor. Its principal officer is a president, who has no greater 
 powers than are usually conferred on the presidents of other colleges. 
 They can not make corporations. 
 
 Although it is now settled that the king may delegate his authority 
 to create corporations ; or, in other words, may exercise the power by 
 another as his instrument, on the principle qui facit per alium, facit 
 -per se, I find no authority for the position that a general power to 
 erect corporations has ever been delegated to either of the English 
 universities. But, however that may be, I think there is no color for 
 
 saying that such a power has been conferred upon any of our colleges. 
 
 * * * 
 
 Judgment for defendant. 
 
 Note. 1830, People v. Trustees of Geneva College, 5 Wend. (N. Y.) 211; 
 1894, State v. International Ins. Co., 88 Wis. 512, 43 Am. St. Rep. 920; 1697, 
 Robinson v. Groscot, Comberbach 372; 1704, Cuddon v.Eastwick, 1 Salk. 192; 
 1829, McKim v. Odom, 3 Bland Ch. (Md.) 407, supra, p. 222; 1852, Pennsyl- 
 vania R. v. Comm'rs, 21 Pa. St. 9; 1853, Franklin Bridge Co. v. Wood, 14 Ga. 
 80, infra, p. 279; 1859, State v. Bradford, 32 Vt. 50; 1870, Hoadley v. Essex 
 Co., 105 Mass. 519; 1874, Stowe v. Flagg, 72 111. 397. Also cases infra, on 
 conditions precedent to corporate existence, dejure, de facto and by estoppel. 
 
 ARTICLE II. METHODS OF EXERCISE EVIDENCE OF SOVEREIGN S CON- 
 SENT. 
 
 Sec. 50. ( ) In general. 
 
 THE CASE OF SUTTON'S HOSPITAL. 
 1613. 10 Coke, 230;, 300, 30*5, 3ia. 
 
 {Extracts from the Report, ) 
 
 (t * * * And it is to be known, that every corporation or incor- 
 poration, or body politic or incorporate, which are all one, either 
 stands upon one sole person, as the king, bishop, parson, etc., or 
 aggregate of many, as mayor, commonalty, dean and chapter, etc., 
 and these are in the civil law called universitas sive collegium. Now 
 it is to be seen what things are of the essence of a corporation. I. 
 Lawful authority of incorporation ; and that may be by four means, 
 sc. by the common laiv, as the king himself, etc., by authority of par- 
 liament; by the king 's charter (as in this case), and by prescription. 
 The ad, which is of the essence of the incorporation, are persons to
 
 50 METHODS OF CREATING. 265 
 
 be incorporated, and that in two manners, sc. persons natural, or 
 bodies incorporate and political. 3. A name by -which they are in- 
 corporated, as in this case governors of the lands, etc. 4. Of a place, 
 for without a place no incorporation can be made ; here the place is 
 the charter-house in the county of Middlesex. Vide 3 Hen. VI 
 'Det./2o; 17 Edw. Ill 59*$, and 45 Edw. Ill 17. 5. By words suf- 
 Jicient in la-w, but not restrained to any certain legal and prescript form 
 of words. And for as much as good pleading is lapis lydius, the 
 touch-stone of the true sense and knowledge of the common law, the 
 form of pleading of a corporation by prescription is to be observed, for 
 in such case he ought to prescribe in everything which is of the essence 
 of the incorporation. * * * It appears that incorporo, or any 
 derivative thereof, is not in law requisite to create an incorporation, 
 but other equivalent words are sufficient, as nominati and cogniti; 
 and therewith agree 44 Assizes, p. 9. In Prior of Plimpton's Case 
 and 4 Edw. IV *]b, in the case of Abbot of Glastenbury, and in none 
 of these books or records was any mention made of these words, 
 fundo, erigo, etc., or any other like words, for, as it hath been said, 
 they are only declaratory words, and the effect of them may be done by 
 the owner of the land without any grant. And it was well observed 
 that in old time the. inhabitants or burgesses of a town or borough 
 were incorporated when the king granted to them to have gildam 
 mercatoriam. * * * Vide for this word guild or fraternity in the 
 Book of Entries, 68 ; 37 Edw. Ill, c. 5 ; 15 Rich. II, c. 5 ; the statute 
 of i Edw. VI of Chantries. In which three things were observed, 
 i. How prudens antiquitas did always comprehend much matter in 
 a narrow room. 2. That to the creation of an incoiporation the law 
 had not restrained itself to any prescript and incompatible words. 3. 
 That when a corporation is duly created, all other incidents are tacite v 
 annexed. And for direct authority in this point, in 22 Edw. IV 
 Grants, 30, it is held by Brian, chief justice, and Choke, that corpora- 
 tion is sufficient without the words to implead and to be impleaded, 
 etc., and therefore divers clauses subsequent in the charters are not of 
 necessity, but only declaratory, and might well have been left out. 
 As i. By the same to have authority, ability and capacity to purchase, 
 but no clause is added that they may alien, etc., and it need not, for it is 
 incident. 2. To sue and be sued, implead and be impleaded. 3. 
 To have a seal, etc. ; that is also declaratory, for when they are in- 
 corporated, they may make or use what seal they will. 4. To restrain 
 them from aliening or demising but in certain form ; that is an ordi- 
 nance testifying the king's desire, but it is but a precept, and doth not 
 bind in law. 5. That the survivors shall be the corporation ; that is a 
 good clause to oust doubts and questions which might arise, the number 
 being certain. 6. If the revenues increase, that they shall be employed 
 to increase the number of poor, etc. ; that is but explanatory, as appears 
 in the Case of Thetford School, in the eighth part of my Reports 
 (f. 31^). 7- To De visited by the governors, etc. ; that is also explana- 
 tory, * * * for if no visitor had been appointed by the charter, the 
 governors should visit ; and the books in 8 Edw. Ill 28, and 8 Assizes,
 
 266 RUTTER V. CHAPMAN. 51 
 
 29, do not gainsay it, where it is held, that if the hospital be lay, the 
 patron shall visit, and if spiritual the bishop shall visit, so that every 
 hospital is visitable; it is tine, but in the case at the bar the poor of 
 the hospital are not incorporated, and so no legal hospital. 8. To 
 make ordinances ; that is requisite for the good order and government 
 of the poor, etc., but not to the essence of the incorporation. 9. The 
 exemption from the ordinary is but declaratory, for being a lay incoi'- 
 poration he neither can nor ought to visit. 10. The license to pur- 
 chase in mortmain is necessary for the maintenance and support of 
 the poor, etc., for without revenues they can not live, and without a 
 license in mortmain they can not lawfully purchase revenues, and yet 
 that is not of the essence of the corporation, for the corporation is 
 perfect without it, so that by what has been said, it appears what 
 things in genere are requisite to a complete body incorporate, and 
 which are verba operativa in this case (which are necessary to be 
 known in every case), in the resolution whereof it appears how 
 necessary it is that the law and experience should join with their 
 hands together. * * * " 
 
 Note. See cases following, pp. 266, 270, 275, 279. 
 
 Sec. 51. Same. (6) King's or Queen's Charter. 
 RUTTER v. CHAPMAN. 1 
 
 1841. IN THE ENGLISH EXCHEQUER CHAMBER. 8 Mees. & W. (Ex- 
 chequer) 1117. 
 
 [This was a controversy between two coroners. The plaintiff had 
 been one of the coroners of the county palatine of Lancaster, and 
 had been entitled to hold inquests, and receive the fees therefrom. 
 Upon the sudden death of Bridget Garratty, within the territory form- 
 erly within the jurisdiction of the plaintiff, he claimed the right to 
 hold the inquest, but was prevented from doing so by the defendant 
 who claimed to be a properly selected coroner by the council of Man- 
 chester, which he claimed was a borough duly incorporated, by the 
 queen's charter, with jurisdiction over the territory where the death 
 occurred. By act of parliament it had been provided that the queen, 
 upon petition from the inhabitant householders of any town or 
 borough, by advice of the privy council, might extend to such inhabi- 
 tants "within the district to be set forth in such charter, all the powers 
 and privileges" given to municipal corporations, by the 5 and 6 
 William IV, c. 76, which included several powers that were beyond 
 the prerogative of the queen to grant without parliamentary authority. 
 A petition agreed upon at a meeting of the rate-payers of the parlia- 
 mentary borough of Manchester, convened by advertisement, and 
 
 1 Statement of facts abridged. Only part of opinion of BOSANQUET, J., is 
 given, all others omitted.
 
 51 EXISTENCE BY KING'S CHARTER. 267 
 
 attended by 1,000 persons, which petition was signed by 4,000 house- 
 holders of the borough, was presented to the queen asking for a char- 
 ter incorporating such borough with the powers and privileges of the 
 act of 5 and 6 William IV. Afterwards and before the petition was 
 acted upon a counter petition was presented, signed by 6,000 house- 
 holders, praying the queen not to grant the charter. The whole num- 
 ber of householders was 48,000. The queen nevertheless granted the 
 charter and the corporation was organized by election of mayor, 
 council, etc., and Chapman as coroner for the territory where the death 
 occurred. The plaintiff claimed the queen could not create the cor- 
 poration, except in strict compliance with the act of parliament, and 
 that required a majority of householders to petition to be incorpo- 
 rated. The lower court found for defendant, holding that the queen 
 by her prerogative could create a corporation without authority of 
 parliament.] 
 
 BOSANQUET, J. * * * The next head of objection is, that, 
 in granting the charter, the various provisions of the municipal cor- 
 poration act with respect to times and modes of proceeding have not 
 been pursued. . But there is no provision in the act which requires that 
 this should be done. All the matters contained in that act related to 
 corporations then in existence, whose constitutions were to be altered 
 by authority of parliament, in carrying which object into effect it was 
 necessary that all the provisions prescribed should be strictly ad- 
 hered to. 
 
 But when a new corporation is to be erected by the authority of the 
 crown, the constitution of such new corporation originates in the will 
 of the sovereign ; subject, however, to the assent or dissent of the new 
 corporations by their acceptance or non-acceptance thereof. And 
 such a grant, made by the known prerogative of the crown, requires 
 no petition from any particular description of persons, as a condition 
 precedent to its validity. 
 
 It has been contended, however, that the queen has exceeded the 
 powers which she derived from her common law prerogative, as well 
 as those conferred on her by the act of parliament, in delegating her 
 authority to others, in matters respecting the selection of persons who 
 are to constitute the burgesses of the corporation, particularly David 
 Price, who is empowered to make out the burgess list, and Edward 
 Rushton to revise it. Now I take it to have been long settled bylaw, 
 that the queen, in erecting a corporation, may name, of her own 
 'authority, all the officers and all the corporators, or may empower a 
 subject to do so in her stead. And although no one but the queen 
 can make a corporation, yet when it is made under her authority, it is 
 deemed in law to have been made by herself. 
 
 "When the king," says Lord COKE, in the case of Sutton's Hospital, 
 10 Rep. 33, "reserves as well the nomination of the persons as the 
 name of incorporation to a person who shall be the founder, then he 
 ought to name the parties and declare by what name they shall be in- 
 corporated, and when he has done so in writing, according to his 
 authority, they are incorporated by the king's letters patent and not
 
 268 RUTTER V. CHAPMAN. 51 
 
 by the common person, for he is but an instrument, and the king 
 makes the corporation, in such case, in the same manner as if all had 
 been comprehended in the letters patent themselves. It is true," he 
 adds, "that none but the king can make a corporation, as it is held, 
 49 Ed. 3, 4, 29 Ass. 8; but qui per alium facit, perse ip sum facer e 
 videtur." So it is said in Bro. Abr. Prerogative, 53: "Nota, the 
 king, by his charter, may by express words grant to a corporation or 
 commonalty to make another corporation or commonalty." Again, in 
 Jenkins' Centuries 88, p. 270, it is said: "Only the king can make 
 a corporation;" but, presently after, "the king may give power to 
 name a corporation, and where it is named it is the king's corpora- 
 tion." 
 
 In Com. Dig., Franchise (F. 5), citing i Roll. Abr. 512, it is said 
 that a subject may choose the person, invent the name, etc., for the 
 king, also, the king by charter to the East India Company may enable 
 them to constitute such persons as shall be incorporated. Ib. In 
 Bacon's Abr. Corporations (B), it is said: "The king, by virtue of 
 his prerogative, is the only person that can erect either an ecclesiasti- 
 cal or lay corporation ; yet the king may grant power to a common 
 person to name the corporation, and the persons of whom it is to con- 
 sist, but when he has done so, the corporation does not take its essence 
 from the common person, but from the king." 
 
 I am not aware that the proposition laid down in these authorities 
 has ever been disputed since the second Hen. 7. Blackstone, vol. i, 
 p. 474, says, "The king, it is said, may grant to a subject the power 
 of making corporations (Bro. Abr., tit. Prerog. 53; Vin. Abr. 
 Prerog. 88, pi. 16), although the contrary was formerly held (Year 
 Book, 2 H. 7, 13), that is, he may permit the subject to name the 
 persons and powers of the corporation at his pleasure ; but it is really 
 the king that erects, and the subject is but the instrument ; for though 
 none but the king can make a corporation, yet qui facit alium facit 
 per se. In this manner the chancellor of the University of Oxford has 
 power by charter to erect corporations, and has actually often exerted 
 it, in the erection of several matriculated companies, now subsisting, 
 of tradesmen subservdent to the students." The same doctrine will 
 be found in Kyd on Corporations, 50. No distinction is made in these 
 authorities between ecclesiastical and lay, eleemosynary and munici- 
 pal corporations. I refer to these authorities for the purpose of show- 
 ing in what broad terms the authority of the crown to delegate the 
 nomination of corporations and corporate officers has been recognized. 
 But it is not necessary to rely upon them to their full extent in this 
 case ; for no discretionary power of choice or appointment is given 
 either to Mr. Price or to Mr. Rushton. The constitution of the cor- 
 poration and the qualification of the burgesses are fixed by the char- 
 ter ; and these persons are only required to make a list of those who 
 have such qualifications. 
 
 It is to be observed, that no method of proceeding is pointed out by 
 the 5 and 6 Will. 4, c. 4, or i Viet., c. 78, for setting the corporation 
 in motion: these acts simply provide, that it shall be lawful for her
 
 51 EXISTENCE BY KING'S CHARTER. 269 
 
 majesty, under the advice of her privy council, to extend to the in- 
 habitants of any town or borough, within the district to be set forth 
 in such charter, the powers arid provisions in the act contained ; and 
 I know no mode by which the crown can confer them except by char- 
 ter. If the crown be authorized to grant the powers in question 
 (which without the authority of the act could not have been done), 
 must it not by necessary inference be authorized to prescribe the 
 means by which they are to be made effective ; provided at least that 
 the means adopted are not at variance with those which might be re- 
 sorted to in a common-law charter of incorporation. Many of the regu- 
 lations of the municipal corporation act are inapplicable to a new 
 corporation. David Price is appointed to make out the burgess list 
 instead of the overseers, who, under the municipal corporation act, 
 are required and compelled to make out such a list, but these officers 
 would not be compellable to make out a burgess list for a new cor- 
 poration. For the purpose, therefore, of securing the attainment of 
 the end contemplated by the act, the crown has nominated a person, 
 of whose willingness to undertake the duty it may be assured ; Edward 
 Rushton is appointed to revise the burgess list instead of a revising 
 barrister appointed by the senior judge of assize ; no power to any 
 judge to appoint such a barrister being given by the act, after the 
 year which had elapsed at the grant of this charter. And to have 
 given authority to any other person to appoint a revising barrister would 
 be at least as objectionable as a direct appointment by the queen herself. 
 
 It has been contended, indeed, that if the act of parliament be 
 defective in prescribing the proper means of carrying its object into 
 effect, the object can not be effected ; but the more reasonable inter- 
 pretation of the act in such cases appears to be, that where no particu- 
 lar means are prescribed, the crown may proceed to accomplish the 
 object by the same means which it is authorized by the common law 
 to employ in conferring the usual powers upon a new corporation, 
 namely, by letters patent under the great seal. * * * 
 
 Judgment affirmed. 
 
 Viner's Abr. Corp. B. 1, 5; Y. B. 2 Henry VII, 13; 1613, Button's Hospital 
 Case, 10 Coke 27, supra, p. 264; 1819, Dartmouth College v. Woodward, 4 
 Wheat. 518, infra, p. 708;1815, Terrett v. Taylor, 9 Cranch (U. S.) 43; 1815, 
 Town of Pawlet v. Clark, 9 Cranch (U. S.) 292; 1817, Denton v. Jackson, 2 
 Johns. Ch. (N. Y.) 320; 1828, N. Hempstead v. Hempstead, 2 Wend. (N. Y.) 
 109; 1830, Society for Propagation of Gospel v. Town of Pawlet, 4 Pet. (U. S.) 
 480; 1831, McKim v. Odom, 3 Bland Ch. (Md.) 407, note, p. 416; 1889, Baeder 
 v. Jennings, 40 Fed. R. 199. 
 
 1. The king's power formerly. It is said that both before and for some 
 time after the Norman conquest, many nobles claimed and exercised the right 
 of creating corporations within their own territories. So also the Pope exer- 
 cised the privilege of creating university corporations on the continent, and 
 claimed a like right in England, which, though exercised, was not recognized 
 as conferring legitimate corporate existence. (Greystock College Case, Dyer, 
 81, pi. 64,1553.) Bracton (c. 1263) says: "Those things called privileges, al- 
 though they pertain to the crown, may nevertheless be separated from the 
 crown and be transferred to private persons, but only with the special grace 
 of the king; whose grace and special grant if it have not intervened, time 
 does not exclude the king from such a claim, for no time runs against a dona-
 
 270 THE GOVERNOR V. ALLEN AND M'MURDIE. $2 
 
 tion of the king's or contrary to it. * * * But this kind of liberties, when 
 they have been granted by the king, are as it were possessed, and he to whom 
 they are granted * * * w ill be in possession * * * until he has lost 
 it from abuse or non-user." 1 Bract. Twiss's Trans., p. 55. By the time of 
 Edward III, the absolute necessity of the king's consent to the erection of a 
 corporation seems to be fully established, 49 Edward III, 4; 49 Ass. 8; Viner 
 Corp. B. ; 1 Kyd Corp. 42, 44; Bro. Corp. 15; Angell & Ames, 67. By the 
 civil laio the sovereign's consent was necessary also, either by statute, senatus 
 consulttim, or constitution of the emperor. Digest 47, Lib. 22, 23 ; also 3, 4, 1 ; 
 Hunter's Roman Law, 314; 1 Brown Civil Law, 101, 102; 1 Domat, Civ. Law, 
 Title II, 2, No. 15. 
 
 2. At the present time. In England, the king or queen alone, when a cor- 
 poration is intended with privileges, which, by the principles of the English 
 law, may be granted by the king, is qualified to create a corporation by his 
 or her sole charter. Thus the city of Annapolis, in Maryland, was incorpo- 
 rated by a charter from Queen Anne, when she held the government of the 
 province. When, on the other hand, it is intended to establish a corporation 
 vested with powers which the king can not himself grant, recourse must be 
 had to an act of parliament; as if it be intended, for example, to grant the 
 power of imprisonment, as in the case of the College of Physicians; or to 
 confer a monopoly, as in the case of the East India Company; or when a 
 court is erected, with a power to proceed in a manner contrary to the rules of 
 the common law. Angell & Ames Corp., 68. 
 
 There seems now to be the following methods of creating corporations in 
 England : 
 
 1. By royal charter, uo\v usually exercised by the king, by virtue of his 
 prerogative in foreign affairs, for creating companies for governing and trad- 
 ing with the colonial possessions in Africa and the East Indies. Recent 
 creations of this sort are the North Borneo Company, 1881 (State Papers, vol. 
 Ixxiii, p. 932) ; The Royal Niger Company, 1886 fHertslet, Treaties, vol. xviS, 
 p. 118) ; Imperial British East Africa Company, 1889 (State Papers, vol. Ixxix, 
 p. 641) ; and the British South Africa Company, 1889 (Hertslet, Treaties, vol. 
 xviii, p. 134). These are quite similar to, though differing in some respects 
 from, the Virginia (1609), Massachusetts Bay (1629), and Hudson's Bay, Com- 
 panies (1670), for colonizing and trading in North America, and the East India 
 Company (1600), for a like purpose in India. 
 
 2. By parliament, public companies, such as railways, canals, water- 
 works, etc., those engaged in a public undertaking that requires the exercise 
 of the power of eminent domain. These are incorporated by special act of 
 parliament in each case after investigation and report upon the necessity, but 
 are regulated (unless expressly excepted) by the general provisions of the 
 Companies Clauses Acts of 1845. 
 
 3. By registration. All private business, social, or benevolent companies 
 having more than twenty members (or if banking, more than ten members), 
 under the general incorporation law of 1862, called the Companies Act. See 
 Ency. of Laws of Eng., Companies, Chartered, vol. iii, p. 148 ; Company, p. 162, 
 and Public Company, vol. x, p. 545; also, Railways, vol. xi, p. 1. 
 
 Sec. 52. Same. (c) Common law. 
 
 THE GOVERNOR v. ALLEN AND McMURDIE. 1 
 
 1847. IN THE SUPREME COURT OF TENNESSEE. 8 Humphrey (27 
 Tennessee) 176-184. 
 
 TURLEY, J., delivered the opinion of the court. 
 On the i8th day of August, 1843, G. A. Davie, who had been 
 elected trustee for the county of Montgomery, executed his bond, 
 
 Arguments omitted.
 
 52 EXISTENCE BY COMMON LAW. 27 I 
 
 with G. P. Allen and Robert McMurdie his sureties, to the governor 
 in and over the state of Tennessee, in the penal sum of $3,000, to be 
 void upon condition that he received and securely kept and paid over 
 the school-funds of said county, as the law directs. This bond was 
 acknowledged in open court at the August term, 1843, of the county 
 court of Montgomery. The condition of this bond being broken, a 
 suit thereon was commenced at the July term, 1846, of the circuit 
 court of Montgomery, in the name of Aaron V. Brown, governor, in 
 and over the state of Tennessee, against G. P. Allen and Robert 
 McMurdie, two of the obligors. To the declaration the defendants 
 filed a general demurrer, which was sustained by the circuit judge, and 
 judgment given accordingly, from which an appeal in error is prose- 
 cuted to this court. 
 
 The question presented for consideration upon this demurrer is 
 whether a suit at law can be maintained upon this bond, in the name 
 of the governor of the state. By the 43d section of the act of 1838, ch. 
 148, and the 4ist section of the act 1840, ch. 38, the trustees of the 
 different counties of this state, before the reception of the portion of 
 common school fund belonging to their counties under the general 
 law for distributing it to them, are required to enter into bond, with 
 two or more securities, for the proper performance of their duties in 
 .relation thereto, to the superintendent of public instruction and his 
 successors in office. The bond sued on then, in this action, is not a 
 good statutory bond, according to all the decisions of the state courts 
 upon such subjects and the question necessarily is whether it can be 
 held to be a good common law bond to be sued upon in the name ot 
 the governor of the state. 
 
 Before entering into a general investigation of this subject we deem 
 it proper to premise that the bringing this suit in the name of Aaron 
 V. Brown, governor and successor of James C. Jones, gives no addi- 
 tional strength to the action which it would not have had, provided 
 the suit had been brought merely in the name of the governor of the 
 state, and that the question must be examined as if it had been so 
 brought, for if the bond be not a good common law bond when made 
 payable to the office of the governor as such, the making it payable 
 to a particular governor described eo nomine and his successors could 
 not sustain the action, for in such case, the suit would not enure to 
 his successors, but must be brought in his name if alive, and if not, 
 in the name of his personal representative. The bond in this case, 
 in point of fact, was not executed to any particular governor, eo 
 nomine, but to the governor in and over the state of Tennessee, then 
 can an action at law be maintained upon it? The solution of this ques- 
 tion depends upon the fact whether a bond can upon common law 
 principles be executed to the governor of the state. In the case of 
 Polk v. Plummer and others, 2 Humph. 506, Judge Reese, who de- 
 livered the opinion of the court, says, "that when a statute directs a 
 bond for the public benefit to be made payable to the governor or 
 other functionary having legal succession, the office is the payee, and 
 the successor, whether described eo nomine, either in the statute or
 
 2/2 THE GOVERNOR V. ALLEN AND M'MURDIE. 52 
 
 bond, or not, may yet maintain the action, such officer being made 
 by form of the statute and for the public benefit, quod hoc, a corpora- 
 tion sole." There is no reason whatever, for questioning the general 
 truth of this proposition ; it is sustained by the judgment of the 
 supreme court of North Carolina in the case of the Justices of Cum- 
 berland v. John Armstrong and others, 3 Dev. 284, where it is 
 held that the acts of assembly which direct the justices of the county 
 courts to take bonds to themselves in their official capacity confer 
 on them, as to such bonds, a corporate character. 
 
 But it must be admitted in both these cases that, if they be only 
 quoad corporations, and the bonds be not within the statute authoriz- 
 ing them, they will not enure by succession. But is a governor of a 
 state only quoad a corporation sole ? We think not. It is true it is held 
 in the case of Polk v. Plummer and others to be quoad that particular 
 transaction a corporation sole, but that was all that it was necessary 
 to hold him in that case; but it is not determined that he is not a cor- 
 poration sole for other purposes besides those in which bonds are 
 directed by statute to be made payable to him. Blackstone, in the 
 first volume of his Commentaries, page 469, says: ''A corporation 
 sole consists of one person only, and his successors in some particu- 
 lar station, -who are incorporated by law, in order to give them sole 
 legal capacities and advantages, particularly that of perpetuity, 'which 
 in their natural persons they could not have had." In this view the 
 king is a sole corporation; so is a bishop, and so is every parson and 
 vicar. 
 
 Now the governor constitutes the executive department of the state ; 
 he is vested by the constitution of the state with great and important 
 powers to be executed for the benefit of the state, and it is absolutely 
 necessary that there should be no interregnum in his office, to avoid 
 many and great inconveniences ; this can not be unless we apply to 
 him the maxim of the common law, applicable to the king, that he never 
 dies ; this maxim of the common law (like most, if not all, of them) is 
 based upon wise conceptions, and not upon any foolish reverence for 
 kings or belief in their sanctity or immunity from the common lot of 
 mankind, but upon the necessary assumption that the state, which 
 protects and cares for all, never ceases to exist, but that it is always 
 alive and active in the performance of its duties to the citizen. 
 The state, being an ideality, can only be conceived of through the 
 public functionaries who constitute the different departments by which 
 it exists; therefore, to hold that it never dies is necessarily to hold that 
 those who constitute its necessary departments never die. The depart- 
 ments by which the government of Great Britain exists are the king and 
 houses of parliament; the king is the executive of the nation, and 
 he and the two houses of parliament are the legislature ; there is never 
 in contemplation of law an interregnum in either of these depart- 
 ments, for the law-making and the law-executing power being abso- 
 lutely necessary to the existence of the state, if they cease to be, the 
 state pro tempore ceases to exist, which would be a solecism in a gov-
 
 52 EXISTENCE BY COMMON LAW. 273 
 
 ernment not destroyed by invasion or rebellion, and thrown back 
 upon the primitive principles of society. 
 
 The governor of this state is the executive of it; it is one of his 
 duties, among many others, to see that the laws of the state are exe- 
 cuted and obeyed ; this is a great and fundamental duty, without the 
 proper observance of which society might and would necessarily be 
 greatly distracted, and the proper security of life, liberty and property 
 seriously endangered for the purpose of enforcing the execution of 
 the laws, and the protection of the state from rebellion and invasion ; 
 he is the commander of the forces of the state ; to hold that there can 
 be an interregnum in this office 'would be to hold to the tempo- 
 rary anarchy of the state, and in order to hold that there is no such in- 
 terregnum we must hold that the governor, as such, never dies; to do 
 this he must be a corporation sole, with succession in office. Such 
 we think he is, constituted so by the organization of our state govern- 
 ment, and not by any particular statute or statutes ; and therefore 
 when bonds are directed to be made payable to him in his official ca- 
 pacity, they arc payable to him in his capacity as a corporation sole 
 quoad that particular transaction. 
 
 If the governor of the state be a corporation sole, then he may be a 
 trustee, and that, too, in things not connected with his office ; for it is 
 well settled that corporations, both aggregate and sole, may be trus- 
 tees for others. A bond, then, executed to a governor of a state vol- 
 untarily, which violates no public policy or private morality, but on 
 the contrary is made to secure a public right, maybe sued upon at law 
 in the name of the governor, for the benefit and use of those inter- 
 ested in it, and that, too, though there be no express statute author- 
 izing it. There is no case to be found contradicting this position. 
 
 In the case of The United States v. Thos. Tingley, 5 Pet. 1 14, it 
 was held "that a bond voluntarily given to the United States, and not 
 prescribed by law, is a valid instrument, upon the parties to it, in 
 point of law, because the United States have in their political capacity 
 a right to enter into a contract, or take a bond not previously pro- 
 vided by law, and the United States, being a body politic, may within 
 the sphere of the constitutional power granted to it enter into con- 
 tracts not prohibited by law and appropriate to the just exercise of 
 those powers." 
 
 In the case of Hibbits v. Canada et al., 10 Yerg. 465, it was held 
 by this court that when an administration bond was made payable to 
 James Hibbits, chairman of Smith county, and his successors in office, 
 instead of the governor, as is directed by law, "that no action at law 
 could be maintained on the bond in the name of a successor, but that 
 the bond was valid at common law as a voluntary bond, and that a suit 
 at law might be maintained upon it in the name of the personal rep- 
 resentative of Hibbits." The chairman of the county court is not a 
 corporation sole, and, therefore, upon his death he has no successor, and 
 a bond executed to him without authority by statute necessarily descends 
 to his personal representative, and must be sued upon in his name. 
 18 WIL. CASES.
 
 274 THE GOVERNOR V. ALLEN AND M'MURDIE. 52 
 
 The case of Polk, Governor, v. Plummer etal., in 2 Humph. 500, 
 holds, as we have seen, in a too restricted sense, that the governor is 
 a corporation sole when a bond has been executed to him by statutory 
 provision. In the case of Jones, Governor, v. Wiley et al., 4 
 Humph. 146, a bond was taken from the clerk of Roane county 
 court, payable to Newton Cannon and his successors in office, but 
 taken before the wrong tribunal, it was held that the bond was not a 
 good statutory bond, but that it was a good common law bond, and 
 might be sued upon in the name of Cannon's personal representative, 
 but not in the name of his successor. But Newton Cannon was not 
 a corporation sole, and, therefore, could have no successors, and even 
 if the bond had been made payable to him calling him governor, it 
 is probable it would have been held to be a description personal only. 
 
 In the case of The Justices of Carroll County Court v. Buchanan, 2 
 Murph. 40, it is held by the supreme court of North Carolina that a 
 guardian bond made payable to the justices of Carroll county is void 
 at common law, because it was held that the justices of the county 
 court are not a corporation, and their individual names were not used 
 in the bond or suit ; but it may be doubted whether, if the bond was 
 executed in pursuance of the statute, the justices would not, under the 
 authority of the case of The Justices of Cumberland v. Armstrong, 3 
 Dev., be considered a corporation quoad that transaction. 
 
 In the case of the governor for use of the State Bank v. Twitty et 
 al., i Dev. 153, it was held by the supreme court of North Carolina 
 that a sheriff's bond in a sum different from that directed by law, 
 made payable to John Branch, governor, and his successors was not 
 a good statutory bond, and could not be sued upon in the name of 
 Gabriel Holmes, governor, and his successors. This case is the same 
 with that of Jones, Governor, v. Wiley et al., 4 Humph. 46, and was 
 decided as that was, for the same reason, to wit, that the bond is 
 payable to the governor as an individual eo nomine, and not to his 
 office, and, therefore, descends to his personal representative. These 
 are all the cases to which we have been referred as conflicting with 
 the view we have taken of this case. We think, as we have endeav- 
 ored to show, that they are not in conflict with it. 
 
 Upon the whole, then, we are of opinion that the execution of this 
 bond being voluntary, and for the purpose of securing a fund belong- 
 ing to the county of Montgomery, donated to it by the state, and for 
 which the trustee of the county was bound to enter into bond and 
 security before he received it, the mistake of the county court in not 
 taking this bond, payable to the superintendent of public instruction, 
 but to the governor of the state, though it vitiates it as a statutory 
 bond, does not avoid it at common law, but that the governor of the 
 state being a corporation sole, a suit may be maintained upon it in his 
 name for the benefit of the county of Montgomery. 
 
 We therefore reverse the judgment of the circuit court, overrule the 
 demurrer and remand the case for further proceeding. 
 
 Note. It is frequently said that corporations do not exist by common law 
 with us. That, perhaps, is true in regard to private corporations ; but so far
 
 $ 53 EXISTENCE BY PRESCRIPTION. 2/5 
 
 as public officers, or the state itself, or the National Government are corpora- 
 tions they are so by common law. 
 
 1. As to officers, see supra, p. 200. 
 
 2. The United States is a corporation. 1878, Dickson v. United States, 
 125 Mass. 311, 28 Am. Rep. 230; United States v. Maurice, 2 Brock (U. S.) 
 96, 109; Cotton v. United States, 11 How. (U. S.) 229, 231; United States v. 
 Tingey, 5 Pet. (U. S.)-115, 128. 
 
 3. The states are corporations also. 1843, State of Indiana v. Woram, 6 
 Hill (N. Y.) 33, 40 Am. Dec. 378; People v. Utica Insurance Company, 15 
 Johns. (N. Y.) 358, 8 Am. Dec. 243; People v. Assessors of Watertown, 1 
 Hill (N. Y.) 620. 
 
 Sec. 53. Same. (d} Prescription. 
 
 GREENE ET AL. v. DENNIS. 1 
 
 1826. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 6 
 Conn. 292305, 16 Am. Dec. 58. 
 
 [This was an action of ejectment, for a tract of land in Pomfret, 
 tried at Brooklyn, September term, 1825, before BRISTOL, J. 
 
 The plaintiffs claimed title to the demanded premises, as the heirs 
 at law of Sylvester Wickes ; and the defendant, as the lessee of the 
 Yearly Meeting of the people called Quakers, who claimed to be de- 
 visees of Wickes and the lessee of Rowland Greene, who claimed as 
 a residuary devisee. To prove his title, the defendant exhibited in 
 evidence the last will and testament of Wickes, dated the i7th of 
 January, 1822. The clause of the will comprising the demanded 
 premises was in these words : "I give the Yearly Meeting of the peo- 
 ple called Quakers, of New England, my farm in Pomfret, that I 
 bought of Clark and Nightingale, the net income of which is to be 
 appropriated in aid of the charitable fund of the boarding school es- 
 tablished by Friends in Providence, to them the said people called 
 Quakers, and their successors in the same faith forever." After making 
 numerous other devises and bequests, the testator disposed of the resi- 
 due in the following terms: "Also, I give to my said nephew, Row- 
 land Greene, all the rest and residue of my estate, of what kind or 
 nature it may be, or wherever found not herein or otherwise disposed 
 of on condition that he, the said Rowland, pay or cause to be paid, 
 all my just debts, the foregoing legacies, funeral charges and expense 
 of settling my estate." The testator died soon afterward, and his 
 will was duly proved and approved. The defendant also proved who 
 the members of the Yearly Meeting were, viz., Benjamin Freeborn 
 and thirty-two others, whose names were specified. To prove that 
 the Yearly Meeting was a corporation, capable of taking and holding 
 lands by devise, the defendant adduced in evidence certain votes and 
 pi-oceedings from the records of that body, beginning in 1683 and ex- 
 tending to the commencement of this suit. * * * 
 
 1 Arguments omitted. Statement of facts abridged. Parts of opinion on 
 other points omitted.
 
 276 GREENE V. DENNIS. 53 
 
 The judge instructed the jury that the members of the Yearly Meet- 
 ing could not take and hold the farm, as individuals, for the purposes 
 mentioned in the will ; that the votes and acts done by the society, 
 however long their continuance, would not authorize the presumption 
 of a charter of incorporation, with power to purchase and hold real 
 estate, unless they were such acts of the society as they could not per- 
 form without being incorporated ; that if such devise to the Yearly 
 Meeting was void for uncertainty, or because the society was not in- 
 corporated, the farm would descend to the heirs at law of the testator, 
 would not pass by the residuary clause in the will to Rowland Greene. 
 The jury returned a verdict for the plaintiffs, and the defendant moved 
 for a new trial on the ground of misdirection.] 
 
 HOSMER, Ch. J. * * * 2. The next question that arises in the 
 case is, whether the Yearly Meeting was a corporation, capable of 
 holding land in trust. 
 
 By a corporation it is understood, in contradistinction from a volun- 
 tary association of individuals, a society created by the sovereign 
 power. 
 
 At the trial of this cause no charter of incorporation was exhibited. 
 It, however, was contended, from a long and continued exercise of 
 certain acts, that an incorporation ought to be presumed. 
 
 That a grant of charter is presumable from the long continued ex- 
 ercise of authority is indisputable, and has not been disputed, and all 
 the cases cited by the defendant's counsel tend only to prove this un- 
 questionable principle. The inquiry in this case involves no question 
 of law, and turns entirely on a point of fact. Admitting all the acts 
 done by the Yearly Meeting for more than a century to have been 
 lawful, do they warrant the presumption that they were incorporated? 
 This is the precise inquiry, and in his charge to the jury, the judge, 
 recognizing the law of presumptions, instructed them that the acts 
 done must have been such as an unincorporated Yearly Meeting could 
 not have performed. When fairly construed, the following was 
 virtually the opinion expressed : If the acts done by the Yearly Meet- 
 ing bear on the face of them the impress of corporate acts, such as 
 individuals can not, and a corporation alone is competent to perform, 
 you may presume the Yearly Meeting to be a corporation. But if 
 their acts were within the competency of individuals to perform, they 
 furnish no ground to presume that they were other than the acts of 
 individuals. The inference to be drawn by the jury was a fact in- 
 quired after from facts established, and their reasoning was to be from 
 the effect to the cause. The law made no inference on the subject, 
 nor gave to the testimony a technical efficacy beyond the simple and 
 natural operation. The principle had before been recognized in Hart 
 v. Chalker, 5 Conn. Rep. 311. "A usage," said the court," sup- 
 posed to be founded on a grant or agreement, determines the extent 
 of the supposed grant or agreement. The right granted is supposed 
 to be commensurate with the right enjoyed. They are different media, 
 proving precisely the same fact; and it is because of this indentity of 
 proof that the usage is supposed to evince the grant. In short, like
 
 ^ 53 EXISTENCE BY PRESCRIPTION. 
 
 a seal with its correspondent impression, the grant and the usage are 
 in a point of proof, precisely and identically the same." 
 
 The principle declared by the judge was unquestionably correct; 
 and the verdict of the jury necessarily implies that the Yearly Meet- 
 ings was not a corporation. 
 
 From the evidence exhibited, and spread on the motion before us, 
 my mind is led to the same results. Every act of the Yearly Meeting 
 is entirely reconcilable with the belief that it was done by persons, not by 
 virtue of corporate authority, but as a voluntary association of individuals. 
 Let it be supposed that the members of the Yearly Meetings were a 
 delegation, to whom was confided the supervision of the spiritual con- 
 cerns of the people called Quakers ; that by voluntary contributions of 
 their constituents and others, they were invested with funds to this 
 end ; and that they directed the general concerns and the application of 
 their funds, by joint agreement, and with no more of compulsion than 
 is implied in the voluntary and cheerful acquiescence of those whose 
 interests they are pursuing. Superadd to this, that they kept records 
 of their proceedings ; that they appointed a clerk and treasurer; that 
 they held lands, as individuals, for the general advantage, that they 
 advised the payment of money and sent to the respective quarterly 
 meetings for their proportion ; that, in fact, they celebrated marriages, 
 had burying places and admitted members of their Meeting or dis- 
 carded them. Every one of these acts might be done by them as in- 
 dividuals without corporate authority and without coercion except over 
 their own funds. Their organization for the transaction of business 
 and disposing of their property, with a president at their head (which 
 I believe did not exist), with their clerk and treasurer, and minutes of 
 their proceedings, were nothing more than is usually done by an un- 
 incorporated library company or bible society or other voluntary as- 
 semblies. It does not appear that land or property of any kind was 
 held by the Yearly Meeting, unless as tenants in common, or that a tax 
 was laid by them other than an appointment for a voluntary contribu- 
 tion ; nor is there exhibited in their constitution, organization or pro- 
 ceedings, one mark or indicium of a corporation. Nothing was done 
 by them beyond the competency of individuals. 
 
 So far as the testimony adduced may be relied on, the members of 
 the Yearly Meeting have never exercised one of those incidents which 
 necessarilly and inseparably are annexed to every corporation. They 
 have no perpetual succession, the primary object of corporate author- 
 ity; there has been no suing or being sued, no granting and receiving, 
 no holding of lands or estate for their own use, or that of others, as a 
 corporation; no common seal, by which the intention of a corporate 
 body is manifested, and no by-laws for the better government of them- 
 selves. They appear to have had the capacity of agreeing, of advis- 
 ing, and of disposing of their own, as individuals; and beyond this, no 
 capacity of theirs is discerned. 
 
 The inference from such premises, that the Yearly Meeting was 
 incorporated, would be as groundless as the supposition that an
 
 2/8 GREENE V. DENNIS. 53 
 
 individual, by virtue of his personal acts, gives proof of his being a 
 corporation. 
 
 It is not sufficient for the defendant to show that the Yearly Meet- 
 ing was a corporation, but he must proceed further, and prove that it 
 is authorized, by virtue of its corporate powers, to hold property in 
 trust for others. Such confidence is not incidental to every corpora- 
 tion, but in general, it is foreign to the end of its institution. Hence 
 a corporation can not be seized of land to the use of another (Bro. 
 Abr. tit. Feoffment. D. Cruise on Uses 22) unless it has explicit 
 authority for this purpose. Now what act was ever exercised by the 
 Yearly Meeting from which this power may be presumed? No such 
 act appears ; and hence the presumption of the corporate power in 
 question can not be made. 
 
 I conclude, then, that the Yearly Meeting never was a corporation ; 
 and if it were, that it never had the capacity of becoming a trustee for 
 others. * * * 
 
 The other judges were of the same opinion. 
 
 New trial not to be granted. 
 
 Note. See 1774, Kingston upon Hull v. Homer, 1 Cowper 102; 1807, Dil- 
 lingham v. Snow, 3 Mass. 276; 1809, Dillingham v. Snow, 5 Mass. 547; 1815, 
 Stockbridge v. West Stockbridge, 12 Mass. 400; 1820, Hagerstown Turnpike 
 Co. v. Creeger, 5 Har. & J. (Md.) 122,9 Am. Dec. 495; 1823, Craft of Mercers, 
 etc., v. Hart, 12 Eng. C. L. 76, 1 Car & P. *113; 1829, Eiver Tone v. Ash, 21 
 Eng. C. L. 152, 10 Bar. & C. *349; 1841, State v. Miami Exporting Co., 11 
 Ohio 126; 1844, New Boston v. Dumbarton, 15 N. H. 201 ; 1844, People v. Oak- 
 land County Bank, 1 Doug. (Mich.) 282; 1857, Bow v. Allenstown. 34 N. H. 
 351,69 Am. Dec. 489; 1861, Robie v. Sedgwick, 35 Barb. (N. Y.) 319; 1862, 
 State ex rel., etc., v. Bailey, 19 Ind. 452; 1868, Calkins v. State, 18 Ohio St. 
 366; 1876, Douthitt v. Stinson, 63 Mo. 268; 1882, State, ex rel. Sleeth, v. Gor- 
 den, 87 Ind. 171 ; 1885, Society Perun v. Cleveland, 43 Ohio St. 481. See cases 
 below on estoppel to deny corporate existence, p. 630, et seq. 
 
 COLLIER, C. J., in Selma and Tennessee Railroad Co. v. Tipton, 5 Alabama 
 Reports 787 (1843), on page 804, s. c. 39 American Decisions 344, on page 
 353, says: 
 
 "It is said that presumptions are applicable as well to corporations as indi- 
 viduals ; that persons acting publicly as officers of the corporation are pre- 
 sumed rightfully in office, and all necessary steps presumed, in order to make 
 a corporate act legally operative. So a charter, from the long exercise of cor- 
 porative rights, or acceptance of a new charter from the acts of the corporate 
 officers, as well as many other things, may be presumed from circumstances. 
 (Bank of the United States v. Dandridge, 12 Wheat. Rep. 70, et post; The 
 State v. Carr, 5 New Hamp. Rep. 367; Hagerstown T. P. Comp. v. Creeger, 
 5 Har. & J. R. 125. See also, 1 Pick. Rep. 279; 1 Pick. 372; 17 Mass. Rep. 1 
 and 479.) The court say: 'Where a corporation has gone into operation, and: 
 rights have been acquired under it, every presumption should be made in 
 favor of the legality of its existence.' (See also, Trott v. Warren, 2 Fairf. 
 (11 Me.) Rep. 227.) So, in All Saint's Church v. Lovett, 1 Hall's Rep. (N. Y. 
 Superior Ct.) 191, it is held that where there had been a corporate body de 
 facto, for a considerable time claiming to be a corporation and holding and 
 enjoying property as such, it will be presumed that all merely formal re- 
 quisites to the due creation of a corporation have been complied with. (See 
 also, U. S. v. Amedy, 11 Wheat. Rep. 392.)"
 
 54 EXISTENCE BY LEGISLATIVE ACT. 279 
 
 Sec. 54. Same. (<?) Legislative acts, which are, as to the power: 
 ( i ) Inherent. 
 
 MONTGOMERY BELL v. THE BANK OF NASHVILLE. 
 
 1823. IN THE SUPREME COURT OF ERRORS AND APPEALS OF TEN- 
 NESSEE. Peck's (Term.) Rep. 269. 
 
 HAYWOOD, J., delivered the opinion of himself, Judges White and 
 Brown, Judge Peck being absent. 
 
 The declaration states that on the yth day of August, 1819, a bill 
 single was made and signed by Whitesides, his agent, duly authorized, 
 by which he undertook in sixty days to pay at the bank of Nashville 
 to Whitesides, who indorsed to Alfred Balch, who indorsed to the 
 bank, that on the last day of grace it was presented for payment and 
 was not paid, whereby an action accrued, etc. To this there was a 
 demurrer for several causes, all which were overruled but two, and 
 these two are now to be decided by this court. The first of these two 
 questions is this : Could the legislature of Tennessee create a bank- 
 ing corporation ? To which the answer is, that the legislature of 
 Tennessee, like the legislatures of all other sovereign states, can do 
 all things not prohibited by the constitution of this state or of 
 the United States, and, amongst other things, may establish a bank- 
 ing corporation -with a capacity to sue and be sued, and, of course, to 
 institute and maintain this action. 
 
 A second question made is, whether the bank had power to dis- 
 count this bill single, and sue upon it. By the act of 1807, ch. 103, 
 i , art. 14, the bank is not to trade in any sort of stock except bank 
 bills, etc., but by section 19, bonds, notes and bills shall not be re- 
 ceived at the bank unless made payable there, which implies that bills 
 made so payable may be received there. This bill single is of that 
 description ; the bank may receive, discount and sue upon it. 
 
 Judgment of the circuit court affirmed. 
 
 Sec. 55. Same. (2) Exclusive. 
 
 THE FRANKLIN BRIDGE COMPANY, PLAINTIFFS IN ERBOR, v. YOUNG 
 
 WOOD, DEFENDANT. 
 
 1853. IN THE SUPREME COURT OF GEORGIA. 14 Ga. 80-86. 
 
 Assumpsit in Heard superior court. Tried before Judge Hill, May 
 term, 1853. 
 
 The Franklin Bridge Company was incorporated under the act of 
 the legislature of 1843, to prescribe the mode of incorporating com- 
 panies for certain purposes, by an order of the inferior court of Heard 
 county. 
 
 The company sued the defendant, Wood, for his subscription to 
 their stock. 
 
 The defendant pleaded that the company was not legally incorpo-
 
 28O THE FRANKLIN BRIDGE CO. V. WOOD. 55 
 
 rated; contending that the act of the legislature, referred to, was un- 
 constitutional and void. 
 
 Upon argument, the court held that the act aforesaid was uncon- 
 stitutional, and non-suited the plaintiffs. 
 
 To this decision plaintiff excepted. 
 
 By the court. LUMPKIN, J., delivering the opinion. 
 
 Is the act of 1843, and that of 1845, amendatory thereof, pointing 
 out the manner of creating certain corporations and defining their 
 rights, privileges and liabilities, unconstitutional? 
 
 By the first section of the act of 1843, it is provided: "That when 
 the persons interested shall desire to have any church, camp-ground, 
 manufacturing company, trading company, ice company, fire company, 
 theater company, or hotel company, bridge company and ferry com- 
 pany, incorporated, they shall petition in writing the superior or infer- 
 ior court of the county where such association may have been formed, 
 or may desire to transact business for that purpose, setting forth the 
 object of their association, and the privilege they desire to exercise, 
 together with the name and style by which they desire to be incorpo- 
 rated ; and said court shall pass a rule or order, directing said petition 
 to be entered of record on the minutes of said court." 
 
 Section 2 enacts "That when such rule or order is passed, and said 
 petition is entered of record, the said companies or associations shall 
 have power respectively, under and by the name designated in their 
 petition, to have and use a common seal ; to contract and to be con- 
 tracted with; to sue and be sued; to answer and to be answered 
 unto in any court of law or equity ; to appoint such officers as they 
 may deem necessary, and to make such rules and regulations as they 
 may think proper for their own government, not contraty to the laws 
 of this state, but shall make no contracts or purchase, or hold any 
 property of any kind except such as may be absolutely necessary to 
 cany into effect the object of their incorporation. Nothing herein 
 contained shall be so construed as to confer banking or insurance privi- 
 leges on any company or association herein enumerated ; and the in- 
 dividual members of such manufacturing, trading, theater, ice and hotel 
 companies shall be bound for the punctual payment of all the contracts 
 of said companies, as in case of partnership." 
 
 The third section declares that "No company or association shall 
 be incorporated under this act for a longer period than fourteen years ; 
 but the same may be renewed whenever necessary, according to the 
 provisions of the first section of this act." 
 
 The fourth section confers upon the superior and inferior courts, 
 respectively, the power to change the names of the individuals. 
 
 Section 5. "For entering any of said petitions and orders, and fur- 
 nishing a certified copy thereof, the clerk shall be entitled to a fee of 
 five dollars ; except in cases of applications by individuals for the 
 change of names in which case, the clerk of said court shall be en- 
 titled to the fee of one dollar and that such certified copy shall be evi- 
 dence of the matters therein stated in any court of law and equity in 
 this state. (Cobb's Digest, 542-3.)
 
 55 EXISTENCE BY LEGISLATIVE ACT. 28 I 
 
 By the act of 1845, the provisions of the act of 1843 are extended 
 to all associations and companies whatever, except banks and insur- 
 ance companies ; and the individual members of all such incoq^orations 
 are made personally liable for all the contracts of said associations or 
 companies. (Cobb's Digest, 542-3.) 
 
 The argument against the validity of the charter of the Franklin 
 Bridge Company, created under these statutes, is this : 
 
 (1) That in England corporations are created and exist by prescrip- 
 tion, by royal charter and by act of parliament. With us, they are 
 created by authority of the legislature and not otherwise. That to es- 
 tablish a corporation is to enact a law, and that no power but the 
 legislative body can do this. 
 
 (2) That legislative power is vested under our constitution, in the 
 general assembly, to consist of a senate and house of representatives, 
 to be elected at stated periods by the citizens of the respective coun- 
 ties. 
 
 (3) And that the general assembly is bound to exercise the power 
 of making laws, thus conferred upon them, by the people, in the 
 primordial compact, in the mode therein prescribed, and in none 
 other, and that a law made in any other mode is unconstitutional and 
 void. That the legislature is but the agent of their constituents, and 
 that they can not transfer authority delegated to them to any other 
 body, corporate or otherwise not even to the judiciary, a co-ordinate 
 department of the government, unless expressly empowered by the 
 constitution to do so. That to do this would be to violate one of the 
 fundamental maxims of jurisprudence, as well as of political science, 
 namely: delegata potestas, non potest delegari. That to do this 
 would not only be to disregard the constitutional inhibition, which is 
 binding upon the representative, but by shifting responsibility, in- 
 troduce innovations upon our system, which would result in the over- 
 throw and ultimate destruction of our political fabric. 
 
 The constitutional inquiry thus presented is an exceedingly grave 
 one. It reaches far beyond the case made in the bill of exceptions, 
 and extends to the whole range of topics which fall under legislative 
 cognizance. In the view we take, however, of the statutes before us, 
 no such proposition as that which has been discussed is presented for 
 our adjudication. And we rejoice that it is so, not only on account 
 of the delicacy of the task in pronouncing an act of the legislature un- 
 constitutional and void, one which is never justifiable, unless the case 
 is clear and free from doubt ; and even then one might almost be for- 
 given for shrinking from the performance of the duty, which would be 
 productive of such incalculable mischief and confusion. Bridges have 
 been built at a heavy expense, manufacturing and innumerable other 
 associations have been formed in Georgia, and are in full operation, 
 under charters incorporated under this law. And in view of the con- 
 sequences any court might hesitate, unless the repugnance between 
 the statute and the constitution was so palpable as to admit of no 
 doubt, and produce a settled conviction of their incompatibility with 
 each other.
 
 282 THE FRANKLIN BRIDGE CO. V. WOOD. 55 
 
 (4) It was formerly asserted that in England the act of incorpora- 
 tion must be the immediate act of the king himself, and that he could 
 not grant a license to another to create a corporation. (10 Rep. 
 27.) But Messrs. Angell & Ames, in their Treaties on Corporations, 
 state that the law has since been settled to the contrary, and that the 
 king may not only grant a license to a subject to erect a particular 
 corporation, but give a general power, by charter, to erect corpora- 
 tions indefinitely, on the principle that qui facit per alium, facit per 
 se; that the persons to whom the power is delegated, of establishing 
 corporations, are only an instrument in the hands of the government, 
 (i Kyd 50, i Black. Comm. Ang. & Am. 63.) 
 
 Before the revolution, charters of incorporations were granted by 
 the proprietaries of Pennsylvania, under a derivative authority from 
 the crown, and those charters have since been recognized as valid. 
 (3 Wilson's Lectures 409.) A similar power has been delegated by 
 the legislature of Pennsylvania with regard to churches. (7 S. & 
 R. 517.) The acts of the instrument in these cases become the acts 
 of the mover under the familiar maxim above mentioned. (See, also, 
 i Mo. Rep. 5.) 
 
 (5) Our opinion is, that no legislative power is delegated to the 
 courts by the acts under consideration. There is simply a ministerial 
 act to be performed no discretion is given to the courts. The duty 
 of passing the rule or order, directing the petition of the corporators 
 to be entered of record on the minutes of the court, setting forth to 
 the public the object of the association, and the privilege they desire 
 to exercise, together with the name and style by which they are to be 
 called and known, is made obligatory upon the courts; and should 
 they refuse to discharge it, a mandamus would lie to coerce them. It 
 is true, the legislature has seen fit to use the courts for the purpose of 
 giving legal form to these companies. But it might have been done 
 in any other way. Under the free banking law of 1838, instead of 
 petitioning the court, and having the order passed and entered upon 
 its minutes, the certificate, specifying the name of the association, its 
 place of doing business, the amount of its capital stock, the names 
 and residence of the shareholders, and the time for which the com- 
 pany was organized, is required merely to be proven, and acknowl- 
 edged, and recorded in the office of the clerk of the superior court, 
 where any office of the association is established, and a copy filed 
 with the comptroller general. (Cobb's Digest, 1078.) 
 
 And so under the act of 1847, authorizing the citizens of this 
 state, and such others as they may associate with them, to prosecute 
 the business of manufacturing with corporate powers and privileges. 
 The persons who propose to embark in that branch of business are 
 required to draw up a declaration, specifying the objects of their asso- 
 ciation, and the particular branch of business they intend carrying on, 
 together with the name by which they will be known as a corpora- 
 tion, and the amount of capital to be employed by them; which 
 declaration is required to be first recorded in the clerk's office of the 
 superior court of the county where such corporation is located and
 
 56 EXISTENCE BY' LEGISLATIVE ACT. 283 
 
 published once a week for two months in the two nearest gazettes, 
 which being done, it is declared that said association shall become a 
 body corporate and politic, and known as such, without being spe- 
 cially pleaded in all courts of law and equity in this state, to be gov- 
 erned by the provisions, and be subject to the liabilities therein speci- 
 fied. (Cobb's Digest, 439, 440.) 
 
 In these two instances, and in others which might be cited, the leg- 
 islature have dispensed with the action of the courts, or of any other 
 agency, to carry out their enactments, with regard to these various 
 associations, which have become the usual and favorite mode of con- 
 ducting the industrial pursuits of the civilized world in modern times. 
 
 All these statutes were complete as laws when they came from the 
 hands of the legislature ; and did not depend for their force and effi- 
 cacy upon the action or will of any other power. It is true that they 
 could only take effect upon the happening of some event, such as the 
 filing the petition or declaration, and giving publicity to the purpose 
 of the association, and the mode prescribed by the act. But if this 
 were a good reason for regarding these statutes as invalid, then how 
 few corporations could abide the test. For it requires the acceptance 
 of the charter to create a corporate body, for the government can not 
 compel persons to become an incorporated body without their consent. 
 And this consent, either express or implied, is generally subsequent, 
 in point of time, to the creation of the charter. And yet, no charter 
 that we are aware of has been adjudged invalid, because the law cre- 
 ating it and previously defining its powers, rights, capacities and lia- 
 bilities, did not take effect until the acceptance of the corporate body, 
 or at least a majority of them, was signified. 
 
 The result, therefore, of our deliberation upon this case is, that the 
 acts of 1843 and 1845, vest ing in all associations, except for banking 
 and insurance, the power of self-incorporation, do not impugn the con- 
 stitution ; and that the charter of the Franklin Bridge Company and 
 all others, created under them, and in conformity to their provisions, 
 are legal and valid. With the policy of these statutes, we have noth- 
 ing to do. The province of this, and all other courts, is jus dicere, 
 not jus dare. 
 
 Judgment reversed. 
 
 Sec. 56. Same. (3) Plenary. 
 
 PENOBSCOT BOOM CORPORATION v. WILLIAM P. LAMSON ET AL. 
 
 1839. I N THE SUPREME JUDICIAL COURT OF MAINE. 16 Maine (4 
 Shepley) 224-233, 33 Am. Dec. 656. 
 
 Exceptions from the court of common pleas, PERHAM, J., presiding. 
 
 Assumpsit for boomage of logs, asserted to belong to the defend- 
 ants. The writ was dated December 21, 1835, the action was 
 entered at January term, 1836, and continued to October term follow- 
 
 'Arguments omitted. Part of opinion omitted.
 
 284 PENOBSCOT BOOM CORPORATION V. LAMSON. 56 
 
 ing, when the defendants called for the right of the attorneys acting 
 for the corporation to appear and act therefor. The judge ruled that 
 it was unnecessary. The action came on for trial at January term, 
 1837, when the general issue was pleaded, and a brief statement was 
 filed, denying the existence of the corporation then or at any time ; 
 alleging that the charter by and under which the plaintiffs claimed 
 a corporate existence had been forfeited by non-user ; that there had 
 been no organization under the same ; that it was dissolved by a total 
 loss of all its members ; and that it had never complied with the pro- 
 visions of the act of its incorporation by a total neglect to choose any 
 officers under said act. To support the action, the act incorporating 
 the Penobscot Boom Corporation, February 13, 1832, Spec. Laws, c. 
 236; a bill of sale from Rufus Dwinal, named in the act, to Samuel 
 Veazie, dated February 17, 1832, conveying one-half of the charter, 
 booms, and property ; and another bill of sale from Dwinal to Veazie, 
 dated April i, 1833, conveying the other half; were introduced. 
 Also, a book called and offered as the records of the corporation, but 
 not verified by the oath of any one; "to the sufficiency, of which, to 
 prove the organization, as well as to the introduction of all the testi- 
 mony offered by plaintiff, the defendants' counsel objected. The 
 objection was overruled, and a part of the book was read to the jury. 
 The defendants' counsel having called for the records." The char- 
 ter and the bills of sale were copied into this book, and the following 
 vote appeared therein: "Bangor, April 2, 1833, I, Samuel Veazie, 
 being the only owner of the Penobscot Boom Corporation, have this 
 day had a meeting of said corporation at my house, and appointed 
 myself to the office of president of said corporation, and clerk of said 
 meeting, with full powers to make all records and to transact all busi- 
 ness that may be necessary for carrying said corporation into full effect 
 and to receive and collect all tolls that may be due from time to time, 
 and pay all bills against the said corporation, and to continue until 
 some person is chosen or appointed in my stead. A true record. At- 
 test, Samuel Veazie, clerk." The plaintiff then proved that the logs 
 were surveyed in the boom by Davis & Young sealers, appointed by 
 the surveyor-general of the county of Penobscot, under the statute of 
 March 2, 1833, Spec. Laws, c. 373. Young also testified that he took 
 charge of the boom in the spring of 1833, and had retained it since; 
 that a large amount had been expended on the boom by Veazie, and 
 that the witness is the general agent of Veazie at Oldtown, and drew 
 on him for money and paid him money received for boomage, and 
 knew nothing of the corporation of his own knowledge. It was 
 proved that the boom was erected in the spring of 1832, under the 
 direction of Dwinal, and has been in operation ever since. The de- 
 fendants requested the court to order a non-suit, but the judge refused. 
 The defendants then proved that the boom, when full, prevented the 
 free passage of rafts and logs. The counsel for the defendants re- 
 quested the judge to instruct the jury that there was no such corpora- 
 tion, as alleged ; that there was no vote or direction of the Penobscot 
 Boom Corporation, at any regular meeting of the corporation, author-
 
 56 EXISTENCE BY LEGISLATIVE ACT. 25 
 
 izing the erection of the boom, and that the action was not maintain- 
 able. The judge did not thus instruct them, but directed them to 
 inquire, if the evidence submitted to them proved the existence of such 
 a corporation as is named in the writ; and if not, they would return 
 a verdict for the defendants. But if such corporation had been 
 proved, it not being denied that the sum claimed in this action was 
 due, if the contents of the logs had been legally ascertained, they 
 would find for the plaintiff. They were also directed to inquire if 
 the boom had been erected and continued by authority of the Penob- 
 scot Boom Corporation. The jury returned a verdict for the plaintiff, 
 and being inquired of at the request of the counsel for the defendants, 
 stated that they found the boom to have been erected and continued 
 by the authority of the Penobscot Boom Corporation. The defend- 
 ants excepted. 
 
 SHEPLEY, J. * * * The existence of such a corporate body is 
 denied, and it is said that it does not come within the legal description of 
 a corporation, either sole or aggregate, as defined by any code of laws. 
 Corporations originating according to the rules of the common law 
 must be governed by it in their mode of organization, in the manner 
 of exercising their powers, and in the use of the capacities conferred. 
 And when one claims its origin from such a course, its rules must be 
 regarded in deciding upon its legal existence. The legislature may, 
 however, create a corporation, not only without conforming to such 
 rules, but in disregard of them, and when a corporation is thus 
 created, its existence, powers, and capacities, the mode of exer- 
 cising them, must depend upon the law of its creation. It was the 
 pleasure of the legislature in this case to create a corporate body, 
 without requiring a conformity to the usual mode of organization 
 known to the law. The grant is to one person who was at liberty to 
 associate others, or to have a successipn without it. No provision is 
 made for a division of the property allowed to be held into shares, or 
 for the call of any meeting, or the choice of a clerk, or any other pffi- 
 cer, or the keeping of any records, or any mode of organization. And 
 yet many important powers and privileges are granted with an evi- 
 dent design to permit their exercise. The grant being to one person 
 and without any such provisions, the inference necessarily is that it 
 was the intention of the legislature to permit that one person or his 
 successor to exercise all the corporate powers, and to make his acts 
 when acting upon the subject-matter of the corporation and within its 
 sphere of action and grant of power the acts of the corporation. 
 
 There does not appear to be any other mode of carrying into effect 
 the intention of the legislature. And if there are doubts whether the 
 person controlling the corporation has acted in behalf of the corpora- 
 tion, they are necessarily to be solved by proof. And if any evils 
 have arisen or shall arise from any proceedings under the act, the leg- 
 islature may provide a remedy. The answer to the arguments against 
 its existence arising from a want of organization and choice of officers 
 is, that the act requires them. In the case of Day v. Stetson, 8 
 Greenl. 365, where a charter was granted to one, and provision was
 
 286 PENOBSCOT BOOM CORPORATION V. LAMSON. 56 
 
 made for taking associates and calling a meeting of them, it was de- 
 cided that it was a condition subsequent, and that the neglect would 
 not prevent the act taking effect, or the exercise of the powers granted 
 by it. ' The case finds that, "it was proved that the boom was erected 
 under the direction of It. D-winal, and went into operation in the 
 spring of 1832, and continued so ever since," and this sufficiently 
 proves that the acceptance of the act of incorporation, for it could not 
 be lawfully done but by virtue of the act, and the presumption of the 
 law is that one acts lawfully when he may do so by a special grant of 
 authority for that purpose. There is not the same finding in all the 
 other cases, but there is sufficient testimony to prove that the boom 
 was erected, and that it has been maintained by the one professing to 
 own the franchise and to act under it. And the acceptance may be 
 presumed from the exercise of the corporate powers. Bank of the 
 United States v. Dandridge, 12 Wheat. 71; Trott v. Warren, 2 
 Fairf. 227. And the act of incorporation, with proof of the exercise 
 of the corporate powers since 1832, was sufficient evidence of the exist- 
 ence of the corporation. Utica Ins. Co. v. Caldwell, 3 Wend. 296; 
 Day v. Stetson, 8 Greenl. 365. There being no provision for the 
 call of any meeting, or for the choice of any officer, when a sale of 
 part of the franchise to Veazie required some evidence of the as- 
 sent of two minds to perform a corporate act, there might be more 
 difficulty in proving the acts of the corporation, but it is not perceived 
 that the mode of proof would be changed. 
 
 It is contended, also, that if the corporation has existed, it has been 
 dissolved. In what manner corporations may be dissolved, and what 
 will not operate as a dissolution, has been determined in many decided 
 cases. A corporation will not be dissolved by a sale of the franchise, 
 or of all the corporate property and a settlement of all its concerns 
 and a division of the surplus, or by a cessation of all corporate acts, 
 or by any neglect of corporate duty, or any abuse of corporate pow- 
 ers, or by doing acts which cause a forfeiture of the charter, without a 
 judgment declaring such forfeiture. Such dissolution can take place 
 only: i. By an act of the legislature, where, as in this state, power is 
 reserved for that purpose. 2. By a surrender, which is accepted, of 
 the charter. 3. by a loss of all its members, or of an integral part, so 
 that the exercise of the corporate functions can not be restored. 4. By 
 forfeiture, which must be declared by judgment of court. Slee v. 
 Bloom, 5 Johns. Ch. Rep. 367 ; Trustees of Vernon Society v. Hills, 
 6 Cowen 23; Bank of Niagara v. Johnson, 8 Wend. 645; Wilde v. 
 Jenkins, 4 Paige 481 ; Canal Company v. Railroad Company, 4 Gill. 
 & Johns. 121; Russell v. McLellan, 14 Pick. 63; Revere v. Boston 
 Copper Company, 15 Pick. 351 ; Porter v. Kendall, 6 B. & C. 703; 
 2 Kent 312. * * * 
 
 Exceptions overruled. 
 
 Note. 1 Hamilton's Works iii; 1819, McCulloch v. Maryland, 4 Wheat. 
 (U. S.) 316; Osborn v. Bank of U. S., 9 Wheat. 738; 1840, Falconer v. Camp- 
 bell, 2 McLean 195, infra, p. 287; 1844, Green v. Graves, 1 Doug. (Mich.) 351, 
 infra, p. 292; 1844, People v. Marshall, 6 111. 672; 1851, Myers v. Manhattan
 
 57 POLICY OF GENERAL LAWS. 
 
 Bank, 20 Ohio 283; 1873, Robinson v. Jones, 14 Fla. 256; 1874, Stowe v. 
 Flagg, 72 111. 397; 1874, Hadley v. Freedman's Sav. & T. Co., 2 Tenn. Ch. 122, 
 126; 1874, United States v. Ins. Co., 22 Wall. (U. S.) 99; 1875, Mayor of 
 Mobile v. Moog, 53 Ala. 561 ; 1876, Cotton v. Mississippi Boom Co., 22 Minn. 
 372; 1876, Gordon v. Association, etc., 12 Bush (Ky.) 110; 1876, Williams 
 v. Creswell, 51 Miss. 817, 822; 1878, Nelson v. McArthur, 38 Mich. 204. 
 
 Sec. 57. Same. As to form of exercising such authority: 
 (i) Special or general law. 
 (a) Policy of general laws. 
 
 FALCONER AND HIGGINS v. HENRY M, CAMPBELL Er AL. 
 
 1840. IN THE CIRCUIT COURT OF THE UNITED STATES, 7TH CIRCUIT. 
 2 McLean's Reports (U. S. Circuit Ct.) 195213. 
 
 Action against the directors of the Detroit bank to recover the 
 amount of bill of exchange, drawn by the bank in favor or the plaint- 
 iffs on a New York bank, and protested for non-payment. The 
 declaration set forth the organization of the bank under the general 
 banking law of 1838. The defendants filed a general demurrer rais- 
 ing -the questions (among others) stated below. 
 
 Opinion by McLEAN, J. * * * 
 
 First: Are the associations authorized by the general law corpora- 
 tions ? 
 
 Second : Had the legislature power to pass such a law ? 
 
 The act in question is entitled "an act to organize and regulate 
 banking associations." The first, second, third, fourth, fifth, sixth 
 and seventh sections provide in what mode the associations shall be 
 formed. Application is to be made, in writing, to the treasurer and 
 clerk of the county, where the business is to be transacted, stating the 
 amount of capital proposed. Of this application public notice is re- 
 quired to be given. Bond, in the sum of thirty thousand dollars, to 
 be approved of by the treasurer and clerk, must be entered into. The 
 capital stock is limited, and the subscriptions are to be received and 
 apportioned, etc.- Ten per cent, on shares subscribed are required to 
 be paid. 
 
 And when the capital stock of the proposed association shall be 
 subscribed and ten per cent, paid, on notice being given to the stock- 
 holders, they are authorized to meet and elect nine directors, a major- 
 ity of whom are authorized to manage the affairs of the association. 
 They are required to elect one of their number president; and in the 
 ninth section it is provided, that "all such persons as shall become stock- 
 holders of any such association shall, on compliance with the provisions 
 of the act, constitute a body corporate and politic in fact and in name, and 
 by such name as they shall designate and assume to themselves, etc., 
 and by such name they and their successors shall and may have con- 
 tinued succession, and shall, in their corporate capacity, be capable 
 
 1 Arguments and part of opinion omitted.
 
 288 FALCONER AND HIGGINS V. CAMPBELL. 57 
 
 of suing and being sued, pleading and being impleaded, etc., in all 
 courts whatsoever ; and that they and their successors may have a 
 common seal, and by such name as they shall designate, adopt and 
 assume as aforesaid, shall be in law capable of purchasing, holding 
 and conveying any estate, real or personal," etc. By the I5th section 
 the directors, for the time being, or a majority of them, have power 
 to make by-laws. 
 
 The ordinary powers of a corporation are i. Perpetual succes- 
 sion. 2. To sue and to be sued, and to receive and grant by their 
 corporate name. 3. To purchase and hold lands and chattels. 4. 
 To have a common seal; and 5. To make by-laws. 
 
 Some of these powers are incidents to a corporation, but they are 
 all generally expressly given by a statute in this country, and these 
 powers are all given in the act under consideration. It expressly pro- 
 vides that the association authorized by the act, when formed, shall 
 "constitute a body corporate and politic in fact and in name." 
 
 The act not only gives in terms all the requisites to constitute a cor- 
 poration, but the body, when formed, is technically designated by it 
 as such. Where then is the ground for argument or doubt on the 
 subject? Did not the legislature comprehend the force of the lan- 
 guage they used ? They have created an artificial being, giving to it 
 in well defined terms its just proportions and powers, and have 
 called it by its appropriate and -technical name. Could the legislature 
 in language more clear and forcible have created a corporation ? Not 
 a quasi corporation, not a joint stock company, or a limited partner- 
 ship, but substantially and technically a corporation. 
 
 In illustration of this act of the legislature, it is unnecessary to refer 
 to the mode of creating corporations in England by grant from the 
 crown, or point out the distinction which may exist between a body 
 thus created and one created by a statutory grant, or between an 
 ancient and modern being of this sort. It is enough to know that 
 it is not essential to the character of a corporation, that its powers 
 should be equal to any similar association, either ancient or modern. 
 It is sufficient if in its corporate name it exercises the powers and 
 rights of a natural person, in the management of its concerns. 
 
 We can entertain no doubt that the associations authorized under 
 the above act were intended to be, and are, in fact, corporations. 
 
 Had the legislature power to pass this law ? This is the great ques- 
 tion in the case, and it is fully and fairly presented by the demurrer. 
 
 The second section of the twelfth article of the constitution of 
 Michigan declares that "the legislature shall pass no act of incorpora- 
 tion, unless with the assent of at least two-thirds of each house." And 
 it is earnestly, ingeniously and ably contended that this is an inhibition 
 of the creation of corporations by a general law. That corporate 
 powers, under it, can only be conferred by express enactment in each 
 case. * * * 
 
 We are told that the people of Michigan were jealous of monop- 
 olies, and especially of bank monopolies, and that by the introduction 
 of the above section into their constitution they intended to restrict the
 
 57 EXISTENCE BY LEGISLATIVE ACT. 289 
 
 powers of the legislature in making such grants. That such was their 
 intention is clear from the language of the section. A law which 
 confers corporate powers can only be passed by a vote of two-thirds 
 of the members of each house. But must each corporation be created 
 by a separate act? This is the ground taken in support of the de- 
 murrer. No act of incorporation shall be passed by the legislature, 
 unless with the assent of at least two-thirds of each house, are the 
 words of the section. The word act is used in the singular, but does 
 it necessarily import that hot more than one corporation can be created 
 in the same act? 
 
 Suppose ten distinct applications were made to the legislature for 
 bank incorporations at the same session, and the legislature were dis- 
 posed to grant each application, must they pass ten acts of incorpora- 
 tion, or may not the ten corporations be granted in the same act? 
 Would not such a law be within the letter and spirit of the constitu- 
 tion ? Of this there would seem to be little doubt. 
 
 As distinctive a character may be given to each corporation in such 
 an act as if it were established by a special law. In 1834 an act was 
 passed by the legislative council of the territory of Michigan, entitled 
 "An act to establish branches of the Bank of Michigan, Farmers' and 
 Mechanics' Bank of Michigan, and Bank of the River Raisin." Such 
 acts are common, and it is believed never to have been supposed that 
 the legislative power might not be exercised in this mode. The re- 
 striction in the constitution does not prohibit it. 
 
 And if this may be done under the constitution, then the construc- 
 tion, that each corporation must be created by a special law, can not 
 be sustained. * * * 
 
 At the time the constitution of Michigan was adopted, in many of 
 the states and in this territory, it was the ordinary course of legislation 
 to create corporations by a general law. This was the case in Ohio, 
 and in many of the other states. And it can be of no importance 
 whether banking or other associations were thus incorporated. The 
 power was exercised. Does the constitution prohibit the exercise of 
 this power? 
 
 It has already been shown that an act which shall establish several 
 banking corporations is not repugnant to the constitution. And this 
 reduces the objections to the law under consideration to two points : 
 
 First. That a corporation being a grant must be made to a person 
 or persons in esse. 
 
 Second. The indefinite number of banking corporations which, 
 under the law, may be established. 
 
 The first objection on examination will be found to have but little 
 force. 
 
 The creation of a corporate existence can never take effect until 
 the association be formed and the organization completed. Commis- 
 sioners are generally designated in the act, -who are to superintend 
 the opening of the books and receive the subscriptions of stock. And 
 -vhcn the amount shall be siibscribed and the necessary payments 
 19 WIL. CASES.
 
 2QO FALCONER AND HIGGINS V. CAMPBELL. 57 
 
 made, the stockholders elect directors who appoint a president and 
 cashier. The organization being completed, existence is given to 
 the artificial being, and its agency commences. It is now in esse. 
 but before this it was not. Vitality is given to it by the voluntary 
 association and organization of its members. Had they remained 
 passive the law could have had no effect. 
 
 In this case then, the grant of the franchise is not made to a person 
 or persons in esse. The commissioners did not constitute the corpo- 
 ration, nor was the franchise in any form or'degree vested in them. 
 
 This is the general mode in which corporations are created, and it 
 has stood the test of time, and of legal scrutiny. No valid objection 
 is perceived to it. 
 
 In regard to this objection the act under consideration rests upon 
 the same ground as other and more special acts on the same subject. 
 The franchise is not vested in either until the organization be com- 
 pleted, and this depends upon the voluntary association of indi- 
 viduals. 
 
 In a special act commissioners are named to open the books and re- 
 ceive subscriptions of stock ; in the act under consideration the clerk 
 and treasurer of each county are required to perform this duty. They 
 are commissioners for this purpose ; and, so far as the grant is con- 
 cerned, if it be valid under one law it must be so under the other. 
 
 We come now to consider the objection, that an indefinite num- 
 ber of banking corporations are authorized by the general law, and 
 this, it is supposed, is not only repugnant to the policy, but the ex- 
 press provision of the constitution. 
 
 It can not be said that this law violates any express provision of the 
 constitution. The extent of the provision referred to is that no act of 
 incorporation shall be passed, except by at least a majority of two-thirds 
 of each branch of the legislature. 
 
 Now, this does not limit the number of corporations which shall be 
 established, nor the number which may be created in one act. The 
 act must be passed by a majority of two-thirds, and this is the only 
 express restriction on the subject. If the range of legislative power 
 be restricted beyond this, it must be done by construction. 
 
 There may be a wide distinction between the policy of a general 
 and a special banking law, but this is not the question for judicial 
 cognizance. Is there such a difference in principle, as to make the 
 one constitutional and the other unconstitutional ? This is the inquiry 
 now to be made. 
 
 As it regards the power of the legislature, it is unquestionable, 
 whether they establish one or fifty banking institutions. The same 
 power which* may establish one bank, under the constitution, may 
 establish fifty. 
 
 In the general law, as above observed, commissioners are appointed, 
 the county clerk and treasurer, to receive subscriptions of the stock 
 the same as in a special act. And the mode of organization, under 
 both acts, is substantially the same. 
 
 The only difference seems to be that in the special act the number
 
 57 EXISTENCE BY LEGISLATIVE ACT. 291 
 
 of corporations is limited, whilst under the general act they are in- 
 definite. 
 
 And here it is contended that the legislature have, in substance, 
 conferred the power to form corporations by voluntary associations, 
 without exercising that special scrutiny, in each case, as is required 
 by the constitution. 
 
 But is this a sound and practical view of the case? 
 
 It may be admitted that it derives great force from the disastrous 
 results which have been realized under this law; but these have noth- 
 ing to do with the 'question of power under consideration. Suppose 
 the results had been as beneficial as they have been injurious, how 
 changed would have been the argument. But the question remains 
 unaffected by the good or evil which resulted from the law. 
 
 The legislature, in the exercise of their discretion, seem to have 
 concluded that, by requiring securities on real estate, and subjecting 
 the directors to certain liabilities, it "would be good policy to multiply 
 the banking institutions of the state. And in order to avoid the 
 charge of monopoly, which had been so liberally applied to banking 
 incorporations by a general law, they held ottt to the community at 
 large equal privileges in forming stich associations. The act which 
 thus sanctions an indefinite number of banks, depending upon volun- 
 tary associations, is passed by the requisite majority of two-thirds of 
 both houses of the legislature. 
 
 Now, what is the practical operation of this law? It, in effect, de- 
 clares that the clerk and treasurer of each county in the state shall 
 be authorized to open books and receive subscriptions of stock, and 
 when the associations, thus formed, shall become organized, they shall 
 be in fact and in name bodies corporate and politic. The law acts as 
 directly upon associations thus formed as if it had been passed ex- 
 pressly to incorporate each association. It is special to each. And 
 the difference between a general and a special law of this character, 
 in this respect, seems to be that the one is passed on the special ap- 
 plication of t a few individuals, whilst the other is enacted under the 
 influence of a general policy. But the question of power is the 
 same. 
 
 May not the legislature determine the number of banks that shall 
 be established? This will not be controverted. And if they may do 
 this, may they not, under the constitution, pass an act, by a majority 
 of two-thirds of each house, to establish voluntary associations with- 
 out limiting their number? 
 
 Suppose the general law had limited the number of banks to be 
 established under it to ten, could their power to pass the law have 
 been doubted? They throw around the institutions, thus to be organ- 
 ized, all the guards and checks which they deem necessary for the 
 public interest. The law acts as directly and distinctly upon each 
 association as if it had been the only one established under it. And, 
 in passing the law, the legislature exercise the same scrutiny as if they 
 were about to incorporate only one bank. Such a law would be 
 within the letter and spirit of the constitution. And if the legislature
 
 292 GREEN V. GRAVES. 5?a 
 
 may do this, may they not fix on a greater number of banks than ten, 
 or may they not, in the exercise of their discretion, authorize the 
 establishment of an indefinite number? Whether the number shall 
 be large or small is a question of policy and not of constitutional 
 power. If a large or indefinite number of corporations may be created 
 in the same act, under as salutary restrictions as the creation of one T 
 is the policy of the constitution disregarded ? 
 
 It is contended that the general law throws off the restraints im- 
 posed by the constitution. But is this so ? There is not a restriction 
 in the exercise of corporate powers, which can be imposed by a special 
 law, that may not be imposed under a general law. And the power 
 of the legislature acts as directly in the one case as in the other. In 
 the general law, then, there is no disregard of the restraints of the 
 constitution. Having the power to establish more than one corpora- 
 tion in the same act, the legislature may establish many, or an in- 
 definite numoer. 
 
 The number, whether indefinite or limited, does not render the law 
 repugnant to the constitution. If it has been passed by the constitu- 
 tional majority, it is within the restriction. 
 
 By the thirty-sixth section of this law the legislature reserve "the 
 power to alter or amend the act, and to dissolve any association to be 
 incorporated under its provisions, by a vote of two-thirds of each 
 house." 
 
 Here is a power not usually reserved in granting franchises. And 
 it would seem that, so far as the policy of the law may be considered, 
 this reservation of power gives to the legislature as salutary a control 
 over these grants, for the public good, as would have been exercised 
 in acting on special applications for charters. And the presumption 
 is, that if the general law had not passed, the number of banks, under 
 special laws, would have been as great, and the consequences not less 
 disastrous. 
 
 The evil is not to be found in the constitution, or in the construc- 
 tion of the constitution, but in the elements of which the government 
 is composed. The true remedy is found in the sober reflection, ex- 
 perience and intelligence of the community. * * * 
 
 Demurrers withdrawn, and leave to plead, etc. 
 
 Sec. 57a. Same. 
 
 WHIPPLE, J., IN GREEN v. GRAVES, 
 
 1844, i Douglass (Mich.) Reports, p. 351 (on pp. 363-367), says 
 upon substantially the same facts as in Falconer v. Campbell, supra, 
 p. 287, in regard to the policy of the general banking law of Michi- 
 gan: 
 
 Let me now advert to some of those "circumstances extrinsic of the 
 act," for the purpose of discovering the reason or "cause of the act." 
 The constitution of Michigan was formed in 1835. Al
 
 573 EXISTENCE BY LEGISLATIVE ACT. 293 
 
 familiar with the history of that period will bear testimony to the fact 
 that a strong public feeling existed against corporations, and especially 
 in respect to those possessing banking powers. It may be said to 
 have been the absorbing question of the day. The community were 
 alarmed at the vast increase of corporations. They feared the power 
 which such institutions were capable of wielding. The belief was 
 entertained that this power had actually been wielded for bad pur- 
 poses. It was argued that all corporations were, in a greater or less 
 degree, monopolies, and hence the prejudices of the community were 
 arrayed against them. It was alleged that, notwithstanding the gross 
 corruptions and fraudulent conduct of banking corporations, they 
 could not be reached, or be made amenable to justice and the violated 
 laws of the country. It was boldly charged that bribery and corrup- 
 tion had been resorted to for the purpose of procuring or perpetuating 
 charters. Regarded as contracts between the state and the company, 
 they could not ordinarily be affected by legislative interference. Im- 
 munity was offered to the persons and property of the corporators, 
 not invested in the corporate stock. Such were some of the circum- 
 stances under which the provision was incorporated into our constitu- 
 tion, circumstances well calculated to challenge the attention of the 
 convention, and induce that body to devise new guards by which the 
 community might be protected against the evils growing out of legisla- 
 tion in respect to corporations. But the object they had in view could 
 not be achieved, unless some statutory check was imposed, by which 
 to prevent the multiplication of corporations. This was the crying 
 evil ; for, in proportion as they increased, in just that proportion would 
 the evils to which I have adverted increase also. 
 
 Chancellor Kent, who was a member of the convention that re- 
 vised the constitution of New York in 1821, says that the convention 
 "endeavored to check the improvident increase of corporations, by re- 
 quiring the assent of two-thirds of the members elected to each branch of 
 the legislature, to eveiy bill for creating, continuing, altering or renew- 
 ing any body politic or corporate." 2 Kent's Com. 271. Mr. King, who 
 was also a member of the convention, and chairman of the committee 
 on the legislative department, in reporting the section embodied in the 
 constitution referred toby Chancellor Kent, remarked that "the com- 
 mittee looked upon the multiplication of corporations as an evil," and 
 that "they ought not to be increased, but should be diminished as far 
 as could be done consistently with the preservation of vested rights." 
 If such were "the extrinsic circumstances," and the reasons which in- 
 duced the convention that framed our constitution to impose the re- 
 striction, is it not indisputable that we can give full effect to the inten- 
 tion of the framers of the constitution, and of the people by whom it 
 was ratified, only by insisting upon such a construction as the words 
 themselves justify ; and that to affirm the general banking law of this 
 state constitutional would be warranting an interpretation at war both 
 with the letter and spirit of that instrument? Indeed, Chief Justice 
 Nelson, in the case of Thomas v. Dakin, admits that the intention 
 of the framers of the constitution of New York would be best ful-
 
 294 GREEN V. GRAVES. 5 /a 
 
 filled by the construction contended for by the defendant. If such be 
 the case, and the letter of the clause in question not only warrants, 
 but demands a literal construction, I know of no power less potent 
 than that of the people competent to change, alter, or modify 
 the clause. We are the mere creatures of the constitution, bound 
 by the highest motives to preserve it unimpaired, as it came from 
 the hands of those by whom it was ordained and established. We 
 do not sit here to make constitutions and laws, but to expound 
 them. Who that is familiar with the opinions of the conven- 
 tion, or has consulted the journal of its proceedings upon the 
 subject of corporations, can hesitate as to the true construction of the 
 clause relating to this subject? Those opinions were hostile to the 
 multiplication of corporations. Not only is this manifest from the 
 clause itself, which requires a vote of two-thirds of each house to pass 
 an act of incorporation, but the journal shows that the clause was 
 unanimously adopted. That member would have been regarded as 
 insane who should have offered a separate proposition, or a proviso 
 to the clause as it now stands, -granting to the legislature a power to 
 pass a general law, for the erection of moneyed corporations, at the 
 will of any twelve inhabitants of the state. * * * 
 
 And yet it has been gravely argued that, notwithstanding the inhi- 
 bition in the constitution, that law can be sustained which violates its 
 letter and spirit ; that law which gave birth in twelve short months to 
 some forty banks, with an aggregate capital of nearly $4,000,000, 
 while there were in existence eighteen chartered banks, with an ag- 
 gregate capital of over $2,000,000; that law whose history was black- 
 ened with frauds and perjuries ; under the operation of which indi- 
 vidual and state credit staggered and at last fell ; a law which brought 
 odium and reproach upon the state within a year after its enactment. 
 I have not been unmindful of the fact that the policy of the act was 
 attempted to be vindicated, upon the ground that, under the system, 
 of creating private corporations, which prevailed before the adoption 
 of the constitution, but comparatively a small number of the commu- 
 nity could participate in the rights, privileges and profits of banking ; 
 whereas under the general law, the many might have privileges which 
 before were enjoyed by the few ; and hence the doctrine of equal rights 
 and equal privileges, so much cherished by the people, was respected. 
 In other words, that the law struck a death blow at the monopoly 
 which previously existed. This reasoning is plausible ; but is it 
 sound? All corporations are, to a certain extent, monopolies. In 
 the language of Mr. Justice McLean, in the case of Beaty v. Knowles, 
 4 Pet. 168, the "exercise of the corporate franchise is restrictive of 
 individual rights." If so, it is difficult to sustain the construction 
 contended for by the plaintiff, on the ground of policy ; for in propor- 
 tion as corporations are created, in the same proportion are the rights 
 of individuals restricted ; so that, although more individuals would, 
 under the general banking law, become members of banking corpo- 
 rations, yet the consequences would be an increase of institutions ad- 
 mitted to be monopolies and restrictive of individual rights. The
 
 57b EXISTENCE BY LEGISLATIVE ACT. 295 
 
 remedy for the mischief, then, would certainly be worse than the mis- 
 chief itself; and I think a community, like an individual, should en- 
 dure a lesser evil, if, in attempting to cure it, a greater one would be 
 entailed upon them. * * 
 
 [This case held the Michigan banking act to be unconstitutional.] 
 
 See note, supra, p. 32. 
 
 Sec. 57b. Same'. 
 
 DEADY, J., IN WELLS, FARGO & CO. v. NORTHERN PACIFIC RY. 
 
 COMPANY, 
 
 1884, Circuit Court of Oregon, 23 Fed. Rep. 469, on pp. 4734, 
 in a suit by the Wells Fargo Express Company, organized under a 
 special act of the territory of Colorado, to constrain the railway com- 
 pany to furnish it with express facilities in Oregon, says: 
 
 Another objection is made to the relief demanded in this bill on 
 the ground of the inability of the plaintiff to exercise the powers 
 claimed by it in Washington Territory, and that is that it is created by a 
 special act of Colorado. This objection is founded upon section 1889, 
 of the Revised Statutes, which is applicable to all territories, and 
 reads as follows: 
 
 "The legislative assemblies of the several territories shall not grant 
 private charters or special privileges ; but they may, by general incor- 
 poration acts, permit persons to associate themselves together as bodies 
 corporate for mining, manufacturing and other industrial pursuits, or the 
 construction or operation of railroads, wagon roads, irrigating ditches, 
 and the colonization and improvement of lands in connection there- 
 with, or for colleges, seminaries, churches, libraries, or any other 
 benevolent, charitable or scientific association." 
 
 Now, it is argued, first, that because a corporation can not be 
 organized in Washington Territory by a special act of the legislature, 
 but must be organized under a general law; therefore, a corporation 
 existing before this restriction was made, under a special act of a sister 
 state or territory, can not come into that territory and exercise the pow- 
 ers, although they are in no way excluded by the law of the land, or 
 contrary to the public policy. The ground is that it is not brought 
 into being in the peculiar or particular way in which the general law 
 now requires corporations to be formed in Washington Territory; but 
 I can not see that there is anything in this objection. There is noth- 
 ing in this section (1889) to prevent any corporation exercising its 
 powers in Washington Territory in pai'ticular cases. Everybody -who 
 is familiar at all with the history of the growth and organization 
 of corporations in the United States knows that this rule, requiring 
 corporations to be organized under a general law, is the growth of 
 some years, and has grown out of the confusion, corruption, the 
 partial and inequitable legislation that was the result of allowing 
 parties to go before the legislature and ask for a special charter. 
 The time of the legislature was unnecessarily consumed by it; the in- 
 tegrity of the members of the legislature was unduly exposed ; or,
 
 296 MOKELUMNE HILL CANAL, ETC., CO. V. WOODBURY. 58 
 
 through the ignorance or carelessness of the legislature, and the 
 astuteness and diligence of designing and overreaching men, there 
 were constantly coming to light obscure clauses in these acts of the 
 legislature, giving powers and granting privileges which were unjust, 
 inequitable, and which would never have been done with the knowl- 
 edge of the legislature. 
 
 Therefore, owing to the evils resulting to the territory of Washing- 
 ton, to the people and to the legislature, this act was passed, and has 
 no reference whatever to the fact whether a corporation, otherwise 
 formed, might exercise powers in that territory not prohibited or con- 
 trary to its public policy. It is a matter of no moment whatever to 
 Washington Territory that corporations in Colorado are created by 
 special acts. The people of the latter territory are not corrupted by 
 it ; the legislature is not corrupted by it ; their time is not taken up 
 with it. The only interest that they have in the matter is the interest 
 that any portion of the people of the United States have in the wel- 
 fare of all the other people in the United States. See, also, on this 
 point, the remarks of Mr. Justice Field in Cowell v. Springs Co., 100 
 U. S. 59. 
 
 Note. 1879, Cowell v. Springs Company, 100 U. S. 55. 
 
 Sec. 58. Same. () Difference between method by general and 
 by special laws. 
 
 MOKELUMNE HILL CANAL AND MINING CO. v. WOODBURY. 1 
 
 1859. IN THE SUPREME COURT OF CALIFORNIA. 14 Cal. 424-428; 
 
 73 Am. Dec. 658. 
 
 COPE, J., delivered the opinion of the court, BALDWIN, J., and 
 FIELD, C. J., concurring. 
 
 It is alleged in the complaint that the plaintiff is a corporation, and 
 this allegation being denied in the answer, the case was tried in the 
 court below upon that issue alone. The plaintiff dates its corporate 
 existence as far back as 1852, and claims to have been duly and reg- 
 ularly incorporated under the general act of 1850, providing for the 
 formation of corporations for manufacturing, mining, mechanical and 
 chemical purposes. Section 122 of that act provides that any three or 
 more persons, who may desire to form a company for either of these 
 purposes, "may make, sign and acknowledge before some officer 
 competent to take the acknowledgment of deeds, and file in the office 
 of the clerk of the county in which the business of the company shall 
 be carried on, and a duplicate thereof in the office of the secretary of 
 state, a certificate in writing," etc. Section 123 provides, that "when 
 the certificate shall be filed as aforesaid," the persons executing the 
 same and their successors, shall be a body politic and corporate. Sec- 
 
 1 Arguments omitted.
 
 58 EXISTENCE BY LEGISLATIVE ACT.- 297 
 
 tion 130 provides, that "the copy of any certificate of incorporation 
 filed in pursuance of this act, certified by the county clerk or his 
 deputy, to be a true copy, and of the whole of such certificate, shall 
 be received in all courts and places as presumptive legal evidence of the 
 facts therein stated. On the trial of the case, it was shown that a certifi- 
 cate, in conformity with the requirements of the act had been filed in 
 the office of the clerk of the proper county, and a certified copy there- 
 of was produced and read in evidence, but it was not shown that a 
 duplicate had been filed in the office of the secretary of state. It ap- 
 peared in proof that the company had been doing business as a corpo- 
 ration since 1852, but the court held, that as it was not shown that a 
 duplicate had been filed as required by the act, the evidence did not 
 establish the fact of incorporation. 
 
 The general rule is, that the existence of a corporation may be 
 proved by producing its charter, and showing acts of user under it ; 
 but this rule has no application to a corporation formed under the pro- 
 visions of a general statute, requiring certain acts to be performed 
 before the corporation can be considered in esse, or its transactions 
 possess any validity. The existence of a corporation thus formed 
 must be proved by showing at least a substantial compliance with the 
 requirements of the statute. Biit there is a broad and obvious distinc- 
 tion between such acts as are declared to be necessary steps in the process 
 of incorporation, and such as are required of the individuals seeking 
 to become incorporated, but which are not made prerequisites to the 
 assumption of corporate powers. In respect to the former, any ma- 
 terial omission will be fatal to the existence of the corporation, and 
 may be taken advantage of, collaterally, in any form in which the 
 fact of incorporation can properly be called in question. In respect 
 to the latter, the corporation is responsible only to the government, 
 and in a direct proceeding to forfeit its charter. The right of the 
 plaintiff to be considered a corporation, and to exercise corporate 
 powers, depends upon the fact of the performance of the particular 
 acts named in the statute as essential to its corporate existence.^- Un- 
 der the issues presented in the pleadings, there is no doubt that per- 
 formance of these acts should have been shown, and if the filing of 
 the duplicate of the certificate of incorporation is to be regarded as 
 one of them, the court below properly held that the existence of the 
 corporation had not been established. But we do not see upon what 
 principle such a construction of the statute is admissible. It is cer- 
 tainly not justified by the natural and ordinary import of the language 
 used, which must furnish the rule of construction, unless a contrary 
 intention clearly appear. Section 122 of the act provides, as we have 
 seen, for the filing of a certificate with the clerk, and a duplicate with 
 the secretary of state; but section 123 declares that when the certifi- 
 cate shall be filed, the persons executing the same and their successors, 
 shall be a body politic and corporate. The intention of the legislature 
 clearly was, that, so far as individuals are concerned, the corporation 
 should acquire a valid legal existence upon the filing of the certificate.
 
 298 DUNN V. THE UNIVERSITY OF OREGON. 59 
 
 The filing of the duplicate is exclusively a matter between the corpo- 
 ration and the state. The rights and privileges conferred by the stat- 
 ute vest in the corporation upon the riling of the certificate, and can 
 be divested only by a direct proceeding for that purpose. If the 
 duplicate has not been filed, the assumption of the corporate powers 
 amounts simply to a usurpation of the sovereign rights of the state, 
 the remedy for which rests with the state alone. 
 
 Judgment reversed, and cause remanded for a new trial. 
 
 Note. See below, cases upon Conditions Precedent to Valid Corporate Ex- 
 istence, pp. 585, 614, 630; When Does Corporate Existence Begin? pp. 565- 
 585; also, Schemes of Organization. 
 
 Sec. 59. (2) Same. By implication. 
 
 DUNN ET AL. v. THE UNIVERSITY OF OREGON. 1 
 
 1 88 1. IN THE SUPREME COURT OF OREGON. 9 Oregon Reports 
 
 35 7-3 62 
 
 This suit was brought by respondents in the circuit court for Lane 
 county, to set aside a conveyance of real property situated in said 
 county, from the Union University Association to the said board of 
 directors of the University of Oregon, executed on or about Decem- 
 ber 31, 1873, upon the ground of fraud, and to subject such property 
 to the payment of certain judgments, which had been recovered in 
 said court by respondents against said association. 
 
 The complaint alleges the due incorporation of the Union University 
 Association as a private corporation under the laws of Oregon, and 
 the creation of the board of directors of the University of Oregon by 
 act of the legislature, approved October 19, 1872, subsequently 
 changed to the "Regents of the University," by act of the legislature 
 October 21, 1876. It also shows that in the year 1873, and prior to 
 the conveyance sought to be impeached, the Union University As- 
 sociation became indebted to the respondents severally in large amounts 
 which have never been paid. That at the time said indebtedness ac- 
 crued, and prior thereto, said association was the owner in fee-simple 
 of certain real property in Eugene City, in said county, worth $50,000, 
 and gives a description of it by metes and bounds. That said real 
 estate was all the property owned by said association, and that by 
 conveying it to the board of directors of the University of Oregon, it 
 made itself insolvent, and thereupon became and has ever since re- 
 mained wholly unable to pay its debts. That said conveyance was 
 executed in fraud of the rights of the respondents, and for the purpose 
 of hindering and delaying them in collecting their said debts, and that 
 there was no consideration therefor, and these facts were fully within 
 
 1 Arguments omitted. Parts of opinion omitted.
 
 59 EXISTENCE BY IMPLICATION. 299 
 
 the knowledge of said board of directors when they received said con- 
 veyance. 
 
 Prior to instituting this suit the respondents severally duly recov- 
 ered judgments against the Union University Association upon their 
 said claims, in said circuit court, and caused them to be duly docketed 
 in said county, and executions to be issued and placed in the hands 
 of the sheriff for service, which were duly returned by him wholly 
 unsatisfied. 
 
 The board of regents demurred, and the court below overruled 
 the demurrer, and upon their failing to answ r er, rendered a decree for 
 respondents as prayed for in their complaint. From this decree the 
 board of regents have brought this appeal. 
 
 By the court, WATSON, J. : 
 
 That the state university itself was incorporated under the provis- 
 ions of the act of October 19, 1872, entitled "an act to create, organ- 
 ize and locate the university of the state of Oregon," is not claimed; 
 but that the "board of directors" created by that act was an incor- 
 porated body can hardly be denied. Section 2 declares: "The gen- 
 eral government and superintendence of the university shall vest in a 
 board of directors, to be denominated the board of directors of the 
 university of Oregon," to consist of nine members, all of whom shall 
 be citizens and permanent residents of the state of Oregon." 
 
 Section 4 provides: "The board of directors shall have the 
 custody of the books, records, buildings and all other property of the 
 university. All lands, money, bonds, securities and other property 
 which shall be donated, transferred or conveyed to the said board of 
 directors by gift, devise or otherwise, for the use and benefit of the 
 university, shall be taken, received, held and managed, invested and 
 reinvested, sold, transferred and in all respects managed, and the 
 proceeds thereof used, bestowed and invested in the manner, for the 
 purpose and under the terms and conditions respectively prescribed 
 by the act or gift, devise or other act in the respective cases. They 
 shall have power, and it shall be their duty, to enact by-laws for the 
 government of the university ; to elect a president of the university, 
 and the requisite number of professors, instructors and employes, and 
 to fix their salaries and the term of office of each, and to do all other 
 acts necessary and proper to carry out the design of this act." 
 
 Sections 1 1 and 12 provide, that on or before January i, 1874, 
 "The Union University Association of Eugene City, Ore., shall secure 
 a site for said university at or in the vicinity of Eugene City, and 
 erect thereon and furnish a building for the use of the state uni- 
 versity, on a plan to be approved, and, after the erection of the 
 same, to be accepted by the board of commissioners for the sale and 
 management of the school and university lands, and for th.e invest- 
 ment of the funds arising therefrom ; said building and furniture to 
 be of not less value than $50,000; and to convey the said site and 
 building, in fee-simple, free from all incumbrances, to said board of 
 directors, on or before said January i, 1874." 
 
 By an amendatory act, passed October 16, 1874, the time was ex-
 
 300 DUNN V. THE UNIVERSITY OF OREGON. 59 
 
 tended to January i, 1877, for securing such site and building and 
 conveying them to the board of directors. 
 
 While it can not be denied that some of these powers might be ex- 
 ercised by a board of directors in their collective capacity, without 
 being incorporated, it is equally undeniable that some of them could 
 not. The capacity and power to take conveyances of lands and hold 
 and dispose of them for the use and benefit of the university, accord- 
 ing to the various and diverse trusts imposed upon them by their 
 donors, and to transmit title to lands to their successors in office in 
 perpetual succession, without intermediate conveyances, could not be- 
 long to this board of directors unless incorporated. 
 
 It is true the legislature has not declared it to be a corporation in 
 express terms, but this was not essential. (Angell & Ames on Cor- 
 porations, ' 76; Thomas v. Dakin, 22 Wend. 70, 103, 106.) 
 
 "It is indeed a principle of law which has been often acted on, 
 that where rights, privileges and powers are granted by law to an 
 association of persons by a collective name, and there is no mode by 
 which such rights can be enjoyed, or such powers exercised, without 
 acting in a corporate capacity, such associations are, by implication, 
 a corporation, so far as to enable them to exercise the rights and 
 powers granted. ." (Angell & Ames on Corporations, 78.) * * * 
 
 The decree of the court below is affirmed with costs. 
 
 Decree affirmed. 
 
 Note. Creation by implication. 1. No precise words, such as found, erect, 
 establish, create, or incorporate, are necessary, provided the legislative in- 
 tent be manifest. 1613, Button's Hospital, 10 Coke 30, supra, p. 264; 1817, 
 Denton v. Jackson, 2 Johns. Ch. (N. Y.) 320; 1828, North Hempstead v. 
 Hempstead, 2 Wend. (N. Y.) 109; 1829, River Tone v. Ash, 21 E. C. L. 152, 10 
 Barn. & C. 349; 1839, Thomas v. Dakin, 22 Wend. 9 on 94, supra, p. 19; 1857, 
 Bow v. Allenstown, 34 N. H. 351, 69 Am. D. 489; 1869, O. & V. R. R. Co. v. 
 Plumas Co., 37 Cal. 354 (contra) ; 1870, Liverpool Ins. Co. v. Mass., 10 Wall. 
 (U. S.) 566; 1881, Cent. Ag. & Mech. Assn. v. Ala. G. L. Ins. Co., 70 Ala. 
 120, 3 Am. & Eng. C. C. 78; 1884, Walsh v. Trustee N. Y. & B. Bridge, 96 
 N. Y.427, 6 Am. & E. C. C. 45; 1889, People, ex rel., v. Wemple, 52 Hun 
 <N. Y.) 434; 1894, Shields v. Clifton Hill L. Co., 94 Tenn. 123, 45 Am. St. R. 
 700; 1896, Edgworth v. Wood, 58 N. J. L. 463, supra, p. 29; 1898, Andrews 
 Bros. v. Youngstown Coke Co., 86 Fed. R. 585. 
 
 2. The implication may arise from legislative recognition or ratification. 
 1830, Society for Propagation of Gospel v. Town of Pawlet, 4 Peters (U. S.) 
 480,502; 1839, Mclntyre Poor School v. Zanesville, 9 Ohio 203; 1841, Will- 
 iams v. Union Bank, 2 Humph. (Tenn.) 339; 1864, People v. Farnham, 35 111. 
 562; 1867, Toledo P. & W. R. R. v. Town of Chenoa, 43 111. 209; 1884, Walsh 
 v. Trustees, 96 N. Y. 427, 6 Am. & Eng. C. C. 45; 1894, Shields v. Clifton Hill 
 L. Co., 94 Tenn. 123, 45 Am. St. R. 700; 1894, Andes y. Ely, 158 U. S. 312. 
 
 3. Or by a grant of lands to be held as a corporation holds lands. 1468, 
 <( If the king granted land to the men or inhabitants of D. to their heirs and 
 successors, rendering rent therefor, as to everything touching this land they 
 are a corporation, but for no other purpose." Rolle's Abr. Corp. F, cit- 
 ing Y. B. 7 Ed. 4, 30; 1817, Denton v. Jackson, 2 Johns. Ch. (N. Y.) 320; 
 1828, North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; 1830, Society for 
 Prop, of Gospel, etc., v. Town of Pawlet, 4 Peters (U. S.) 480; 1840, Commis- 
 sioners of Bath v. Boyd, 1 Ired. Law (N. C.) 194; 1855, People v. Schermer- 
 horn, 19 Barb. (N. Y.") 540. 
 
 4. Or by grants of powers. 1154-89, "Of ancient times the inhabitants of
 
 59 a EXISTENCE BY IMPLICATION. 3<DI 
 
 a vill were incorporated when the king granted to them to have a merchant 
 guild." Rolle, Abr., Corporations F, p. 513, citing Register of Writs, 219, 10 
 Co. 30. But seel Kyd, 64. (The first printed edition of the Register was in 
 1531, but Coke claims to have had edition containing entries of writs used prior 
 to the Norman Conquest. Preface, 10 Rep. The Register is usually consid- 
 ered as dating in the reign of Henry II, 1154-1189.) 1831, Justices of Cum- 
 berland v. Armstrong, 3 Dev. (N. C.) 284; 1839, Thomas v. Dakin, 22 Wend. 
 (N. Y.) 9 on 94, supra, p. 19; 1844, Proprietors, etc., of Southhold v. Horton, 6 
 Hill (N. Y.)501; 1857, Bowv. Allenstown, 34 N. H. 351; 1870, Liverpool Ins. 
 Co. v. Mass., 10 Wall. (U. S.) 566; 1896, Edgworth v. Wood, 58 N. J. L. 463, 
 supra, p. 29; 1898, Andrews Bros. v. Youngstown C. C., 86 Fed. Rep. 585. 
 
 5. By grant to successors. 1829, Conservators of River Tone v. Ash, 10 
 Barn. & C. 349. 
 
 6. But in order that a grant of powers will have the effect to create a cor- 
 poration by implication, they must be really corporate powers, and not 
 merely such as could as well be exercised by unincorporated persons or 
 associations. 1830, Stebbins v. Jennings, 10 Pick. (Mass.) 172; 1858, Shelton 
 v. Banks, 10 Gray (Mass.) 401. 
 
 Sec. 59a. (3) Same. By consolidation. See infra, pp. 984-1007.
 
 CHAPTER 3. 
 
 LIMITS ON THE POWER OF THE STATE TO CREATE. 
 ARTICLE I. FROM THE 'NATURE OF LEGISLATIVE AUTHORITY. 
 
 Sec. 60. (a) Delegation: General rule: There can be no 
 general delegation of legislative authority to create corpora- 
 tions. 
 
 See Franklin Bridge Company v. Wood, supra, p. 279, and note below, 
 p. 304. 
 
 Sec. 61. (b) Exceptions, or apparent exceptions: 
 
 I. Territorial legislatures. 
 RIDDICK, CHAIRMAN, ETC., v. AMELIN ET AL. 
 
 1821. IN THE SUPREME COURT OF MISSOURI, i Missouri Reports 
 
 5-7- 
 
 COOK, J. , delivered the opinion of the court. This is a writ of 
 error, prosecuted to reverse the judgment of the circuit court of St. 
 Louis county in an action of debt instituted by the plaintiff, Riddick, 
 as chairman of the board of trustees of the town of St. Louis, on a 
 bond executed by said defendants to said chairman. To which the 
 defendants plead that said Riddick and others, trustees of said town, 
 fraudulently represented that they had legal right to lease a certain 
 ferry, and that said Riddick, as chairman of the board of trustees, 
 was authorized to make and execute such lease, and that said bond 
 was executed in consideration of a lease so made by said chairman to 
 the defendant, Amelin. To this plea the plaintiff replied: The act 
 of the territorial legislature, authorizing the incorporation of towns ; 
 the order of the court of St. Louis county incorporating the town of 
 St. Louis ; the act of said legislature authorizing said corporation to 
 license and regulate ferries therein, and the ordinance of said corpo- 
 ration authorizing the chairman thereof to let and license such ferries. 
 To which replication the defendants agreed to demur generally, and 
 except to the legal force and effect of the statute authorizing the in- 
 corporation of towns, and to the right of said trustees to have of and 
 from any person licensed to keep a ferry in said town more than 
 one hundred dollars for such license. 
 
 In support of the first point, it is insisted by the .defendants that 
 nothing short of sovereign power can create a corporation ; that the 
 
 (302)
 
 6 1 LIMITS OX POWER TO CREATE. 303 
 
 *erritorial legislature was not sovereign, and hence draw the con- 
 clusion that the act of that legislature had not the force and effect of a 
 law. That the power which creates a corporation must be sovereign 
 as to that matter is a principle which seems to be well settled ; but 
 sovereignty may be either general or limited, absolute or controllable. 
 If this be not true, sovereignty could exist nowhere but with the orig- 
 inal power of making laws, which alone is absolute. The power to 
 legislate on any subject is sovereign as to that matter, and to general 
 sovereignty is incident the power of general legislation. It remains 
 then only to ascertain the power of the territorial legislature, under 
 the act of congress creating that body, and vesting it with legislative 
 .powers. It seems to be admitted that congress possessed the power 
 of legislating for the territory, with no other limitations than such as 
 were imposed by the federal constitution, and it has not been denied 
 that the establishment of the territorial government with legislative 
 powers was a constitutional exercise of the powers of congress. If 
 congress could impart to the territorial legislature a power to legislate 
 on any subject in relation to the government of the people of the ter- 
 ritory, that power might, by the same authority, be made as general 
 as the legislative powers of congress over such territory; and that 
 congress intended to vest the territorial legislature with general pow- 
 ers, for the government of the inhabitants thereof, is manifest, the 
 terms of the provisions being general, with a restrictive proviso, that 
 no law should be passed inconsistent with the constitution of the 
 United States. 
 
 The territorial legislature, then, had power to make all laws which 
 they might deem conducive to the good government of the inhabitants 
 of said territory, and the right being reserved by congress to disap- 
 prove and thereby revoke any law passed by said legislature, does not 
 render the power of such legislature less sovereign in relation to one 
 subject of their legislation than another; it is sovereign as to all, sub- 
 ject to the control of congress. On the second part, it was contended 
 by the plaintiff's counsel that the corporation was not limited by law 
 as to the sum which they may demand for ferry license within the 
 limits of their corporation, and if they are, the defendants having ex- 
 ecuted their bond to the chairman, can not avoid it by showing that it 
 was given for the payment of a sum which the trustees had no right 
 to demand. 
 
 The fourth section of the act extending certain powers to said 
 trustees (Acts of 1814 '15) provides that said trustees shall have full 
 power to license and regulate ferries established within their limits, 
 and to apply the license money to the use of the town. Here the 
 court see no other power vested in the trustees than such as had 
 been given by law to the courts of the several counties on that sub- 
 ject. On the last point the court can not see the propriety of the 
 reasoning why this is assimilated to an individual transaction not regu- 
 lated by special enactment. It is the statute which authorizes the 
 trustees to license and regulate ferries within their limits. The terms 
 of such license and manner of such regulations were prescribed by
 
 304 REGENTS OF UNIVERSITY OF NEW YORK. 62 
 
 law, and not left to the discretion of the trustees who were to exercise 
 those powers. It is the opinion of the court that the trustees were 
 not authorized by law to demand, or exact of any person, more than 
 one hundred dollars for any such license, and that any obligation or 
 promise for the payment of a greater sum for such license is void 
 and not obligatory on the party making it. It is, therefore, consid- 
 ered and adjudged, that the said judgment of the circuit court of the 
 county of St. Louis be affirmed, and that said defendants recover of 
 the said Thomas F. Riddick, chairman as aforesaid, their costs by 
 them about their defense of this writ of error expended, etc. 
 
 Note. See below, Note on delegation of power to create corporations. 
 
 Sec. 62. Same, (2) Regents of University of New York: 
 2 Rev. St. N. Y., p. 1474. Laws of 1892, c. 378, provides: 
 
 27. Charters. The regents [of the University of New York, 
 established in 1784] may, "by an instrument under their seal and 
 recorded in their office, incorporate any university, college, academy, 
 library, museum or other institution or association for the promotion 
 of science, literature, art, history or other department of knowledge, 
 under such name, with such number of trustees or other managers, 
 and with such powers, privileges and duties, and subject to such limi- 
 tations and restrictions in all respects as the regents may prescribe in 
 conformity to law." (As Am. by L. 1893, c. 859, going into effect 
 June i, 1895.) 
 
 Note. DELEGATION OF PO\VER TO CREATE CORPORATIONS. 
 
 1. In England: Although it was early stated that the king could not dele- 
 gate his power to create a corporation (2 Henry VII, 13, 10 Coke Rep. 27) it 
 has been settled otherwise on the theory of the maximquifacttperaliumfaett 
 perse. This authority has been delegated for'the creation of a single corpora- 
 tion, or for an indefinite number. (1 Kyd 50; 1 Bl. Com. 473.) The chancel- 
 lor of the university of Oxford has a general power by charter to create 
 corporations, and has created many, including trading corporations, to serve 
 the students. (1 Bl. Com. 474; Angell & A., 74.) The lords and proprie- 
 tors of Maryland (McKim v. Odom, 3 Bland Ch. 416, supra, p. 222) and of 
 Pennsylvania (3 Wils. Lect. 409) exercised such delegated authority (Ang. & 
 Ames," 74). 
 
 Parliament, in theory not exercising delegated but original sovereign 
 authority, and not hampered by constitutional restrictions, can delegate, 
 either generally or specially, its power to create corporations. Morawetz 
 Corp., 15; Am. & Eng. Ency., vol. 7, p. 645 (2d ed.). 
 
 2. In the United States: (a) In general. For the reasons that there is no 
 executive with authority to create corporations in the United States, that this 
 function pertains to legislative bodies exclusively, and these, with us, exercise 
 only delegated, and not original power, and that the creation of a corporation 
 is the enactment of a law that requires the exercise of discretion, it is 
 held' that there can be no general delegation of the power to create corpora- 
 tions in this country, on the maxim, delegatus delegare non potest. Franklin 
 Bridge Co. v. Wood, 14 Ga. 80, supra, p. 279; 1884, State v. Simons, 32 Minn.
 
 LIMITS ON POWER TO CREATE. 305 
 
 540; 1821, Cohen's v. Virginia, 6 Wheat (U. S.) 264, 442; 1822, In re St. Mary's 
 Church, 7 S. & R. (Pa.) 517; 1843, Case of Borough of West Philadelphia, 5 
 Watts & S. 281 ; 1856, State v. Armstrong, 3 Sneed (Tenn.) 634; 1858, Mayor, 
 v. Shelton, 1 Head (Tenn.) 24; 1885, Factors' & Traders' Ins. Co. v. N. H. P. 
 Co., 37 La. Ann. 233; 1889, Heiskell v. Chickasaw Lodge No. 8, 87 Tenn. 668. 
 What violates and what does not violate this doctrine are well illustrated by 
 the two cases of State v. Armstrong, 3 Sneed (Tenn.) 634, and Mayor v. Shel- 
 ton, 1 Head (Tenn.) 24, to the effect that "when the extent, character of pow- 
 ers and objects of incorporation are fixed by the legislature," and not left to 
 the persons themselves seeking incorporation, or the body to whom certain 
 ministerial acts are delegated, there is no delegation of legislative powers. 
 
 (b) Apparent exceptions: (1) The power of the regents of the University 
 of New York, as above indicated, however, is discretionary to a great extent; 
 and Mr. Morawetz ( 15, note 5) considers this a valid delegation of power. 
 Thomas v. Dakin, 22 Wend. 110. The power to create churches under the 
 Pennsylvania act of 1791 (3 Pa. Laws 40) was largely discretionary, to be ex- 
 ercised by those seeking incorporation, and the courts and attorney-general. 
 (Case of St. Mary's Church, 7 S. & R. (Pa.) 517.) 
 
 (2) Ministerial functions, such as certifying compliance with laws, re- 
 cording articles, etc., can be delegated the creative power in such cases is 
 that of the legislature. 1853, Franklin Bridge Co. v. Wood, 14 Ga. 80, supra, 
 p. 279; 1877, In re New York Elevated R. Co., 70 N. Y.327; 1883, Heck v. Mc- 
 Ewen, 12 Lea (Tenn.) 97; 1888, Granby Min. & S. Co. v. Richards, 95 Mo. 
 106. There seems to be no inherent incapacity in the nature of legislative 
 power that prevents its delegation, and there has always been a well recog- 
 nized exception in the case of municipal ordinances, and the tendency is to 
 extend the sphere of delegating legislative functions. Am. & Eng. Ency., 
 vol. 6, p. 1022 (2d ed.) ; Cooley's Const'l Lim., p. *120, n. 1 ; Oberholtzer, The 
 Referendum in America, 17. 
 
 (3) Congress and the territorial legislatures: It seems never to have been 
 questioned that congress could not delegate a general power to create corpo- 
 rations to the territorial legislatures, on the ground that such was a delega- 
 tion of delegated powers. Perhaps aside from the constitutional power to 
 legislate for the territories, it might be held that congress does not exercise 
 delegated powers in its purely national or international relations, outside of 
 the states of the Union, but that it is sovereign in those particulars, much as 
 the parliament of England, so far as ways and means are concerned. 
 
 See, 1821, Douglas v. State Bank, 1 Mo. 24; 1831, Williams v. Bank of 
 Michigan, 7 Wend. (N. Y.) 539; 1844, People v. Marshall, 1 Gilm. (6 111.) 672; 
 1851, Myers v. Manhattan Bank, 20 Ohio 283; 1852, Vincennes v. University 
 of Indiana, 14 How. (U. S.) 268; 1864, Allen v. Pegram, 16 Iowa 163; 1888, 
 Carver Mercantile Co. v. Hulme, 7 Mont. 566; 1894, Bashford-Burm. Co. v. 
 Agua Fria C. Co., 35 Pac. (Ariz.) 983. 
 
 Territorial corporations become state corporations upon admission of the 
 territory to the Union, as a state. 1820, Vance et al. v. Farmers' and M. 
 Bank, 1 Blackf. (Ind.) 80; 1823, Bank of Vincennes v. State, 1 Blackf. (Ind.) 
 267; 1884, Kansas Pac. R. Co. v. A., T. & S. F. R. Co., 112 U. S. 414. But 
 see, 1851, Myers v. Manhattan Bank, 20 Ohio 283. 
 
 They are subject to the power of congress to control or abolish. 1887, 
 United States v. Church of Jesus Christ, 5 Utah 361 ; 1889, Mormon Church 
 . . Tnited States, 136 U. S. 1, infra, p. 906. 
 
 See below: Limits on power of territorial legislatures, p. 332. 
 
 By the present New Jersey law "The certificate of incorporation may also 
 
 contain any provision which the incorporation may choose to insert * * * 
 
 creating ' * the powers of the corporation, the directors and the stock- 
 
 iulders " " not inconsistent with this act." N. J. L. 1896, Am. 1808, 8. 
 
 Ellerman v. Chicago Junct. Ry. Co., 49 N. J. Eq. 217, holding that the 
 
 ertifioate of incorporation is equivalent to special act of Iho legislature. 
 
 Similar provisions exist in the Delaware, Connecticut and North Carolina 
 laws. Such provisions, it would seem, can hardly be supported under the 
 early holdings. They do not seem to have been passed upon. 
 20-WiL. CASES.
 
 306 ELLIS V. MARSHALL. 63 
 
 ARTICLE II. LIMITS ON LEGISLATIVE AUTHORITY, FROM THE NATURE 
 
 OF A FRANCHISE. 
 
 Sec. 63. (# ) Can not be forced on any one. 
 ELLIS v. MARSHALL. 1 
 
 1807. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 2 
 Mass. Reports, 269-279; 3 Am. Dec. 49. 
 
 [Ejectment by plaintiff, claimed under a sale, by the Front Street 
 Corporation, of the defendant's land to pay an assessment for con- 
 structing a street. The corporation was composed of sundry persons 
 described as being "owners and proprietors of the land over which 
 the street will pass," the defendant being one of such proprietors, and 
 named in the act of incorporation, which had been passed upon peti- 
 tion by a majority of said proprietors. Marshall had not been one of 
 such petitioners, and, although a public notice of a time for a hearing 
 by all persons interested was given by the general court, Marshall did 
 not appear. The proprietors were duly incorporated and authorized 
 to make the improvement, levy the cost upon the adjoining lands, and 
 upon failure to pay the assessment made, seize and sell the land.] 
 
 PARKER, J. From the foregoing facts and the arguments thereon 
 by the counsel, it appears that all the proceedings of the corporation 
 relative to the assessment and sale were correct, so that if Marshall 
 were, at the time thereof, a member of the corporation, the title to the 
 demanded premises in Ellis could not be disputed. 
 
 We are, therefore, necessarily brought to the question, indeed, the 
 only one in the case, whether Marshall, by virtue of the act aforesaid, 
 became a member of the said corporation, subject to its rules and 
 regulations, and liable to be assessed for the purpose of building said 
 street. 
 
 The counsel for the plaintiff have contended. 
 
 1. That by the virtue of the act itself, Marshall being named therein, 
 he became, ipso facto, a member of the corporation, the legislature 
 having competent power to compel him thereto. 
 
 2. That should this not be the case, the foregoing facts contain 
 sufficient evidence of his consent, tacit at least, to the passing of said 
 act, and the insertion of his name therein. 
 
 The determination of the first point requires that we should ascer- 
 tain the true nature and character of this legislative proceeding. If 
 it were a public act, predicated upon a view to the general good, the 
 question would be more difficult. If it be a private act, obtained at 
 the solicitation of individuals, for their private emolument or for the 
 
 1 Statement of facts abridged. Arguments omitted. Part of opinion 
 omitted.
 
 63 LIMITS ON POWER TO CREATE. 307 
 
 improvement of their estates, it must be construed, as to its effect 
 and operation, like a grant. We are all of opinion that this was a 
 grant or charter to the individuals who prayed for it, and those who 
 should associate with them; and all incorporations to make turnpikes, 
 canals and bridges must be so considered. 
 
 Can then one, whose name is by mistake or misrepresentation inserted 
 in such an act, refuse the privileges it confers and avoid the burdens 
 it imposes? If he can not, then the legislature may, at all times, 
 press into the service of such corporations those whose lands may be 
 wanted for such objects whenever they may be prevailed on to insert 
 the names of such persons by the intrigue or mistake of those more 
 interested in the success of the object. No apprehension exists in the 
 community that the legislature has such power. That the land of any 
 person, over or through which a turnpike or canal may pass, may be 
 taken for that purpose if the legislature deem it proper, is not doubted. 
 The constitution gives power to do this, provided compensation is 
 made. But it was never before known that they have power over 
 the person, to make him a member of a corporation, and subject him 
 to taxation, nolens volens, for the promotion of a private enterprise. 
 
 That a man may refuse a grant, whether from the government or 
 an individual, seems to be a principle too clear to require the support 
 of authorities. That he may decline to improve his land no one will 
 doubt. Although the legislature may wisely determine that a certain 
 use of his property will be highly beneficial to him, he has a right to 
 judge for himself on points of this nature. The fact, therefore, in 
 the case, that Marshall is benefited equally with the other owners by 
 the making of this street, is of no importance. In Bagg's Case, Rolle's 
 Reports, 224, it seems to be agreed by the court that a patent pro- 
 cured by some persons of a corporation shall not bind the rest, unless 
 they assent. And in Brownlow's Reports, 100, there is this passage : 
 "It was said that inhabitants of a town can not be incorporated with- 
 "out the consent of the major part of them, and an incorporation 
 "without their consent is void." 
 
 In Comberbach 316, Holt, speaking of a new charter made to the 
 city of Norwich by Henry IV and confirmed by Charles II, says the 
 new charter had been void, if the corporation had refused it, but 
 when they accept it, and put it in execution, it is good. 
 
 If these principles were correct in England in times when preroga- 
 tive ran high, and the crown or the parliament could not force char- 
 ters or patents upon the subject without his assent, surely in this free 
 country, where the legislature derives its power from the people, such 
 authority can not be contended for. 
 
 It being then the opinion of the court that this act is of a nature to 
 require the assent of Marshall, either express or implied, before it can 
 operate upon him, it is necessary to inquire into the second point, viz., 
 whether the facts agreed upon in this case furnish evidence of such 
 assent. 
 
 It is contended that the act itself, as it contains Marshall's name,
 
 308 ELLIS V. MARSHALL. 63 
 
 furnishes such evidence, since it must be presumed that the legislature 
 were satisfied on this point before they passed the act. 
 
 This argument would have great weight, if its force were not im- 
 paired by the facts stated in the case. It appearing that Marshall 
 did not sign the petition ; that he did not, in word or writing, assent 
 to it, or to the act founded upon it; that he did not attend before the 
 committee, and that in the only transaction, in which he noticed the 
 corporation, he protested against its authority over him, the presump- 
 tion arising from his name being in the act is weakened, if not de- 
 stroyed. 
 
 It is then said that, public notice having been given of the hearing 
 intended by the committee, his silence is evidence of his tacit assent 
 to the passage of the act. As we are bound to presume everything 
 in favor of the doings of the legislature, we should think this a strong, 
 if not a conclusive argument, if the notice given had been such as 
 necessarily to signify to Marshall that he was to be included in the 
 act prayed for. But on perusing the petition, which probably was 
 published in the papers, we find nothing in it from which we could 
 infer that his property or rights were to be affected in the manner 
 contemplated by this act. He may be considered as notified that a 
 street was intended to be built over his ground : and all that he could 
 infer from this was that so much of his land as the street would pass 
 over would be taken for this purpose, and that he would receive in- 
 demnity for it in the usual way, and that any opposition to it would 
 be unavailing. He certainly could never have understood that it was 
 intended to make him a member of the corporation without his con- 
 sent. There is therefore no evidence, even of a tacit consent, before 
 the passing of the act, and his conduct, after it passed, amounts to a 
 direct disavowal of all the doings of the corporation, as they respected 
 him or his property. 
 
 Upon the whole, therefore, we are of opinion that the act, under 
 which the plaintiff sets up his title, could not 'bind Marshall without 
 his assent: that he, having uniformly, whenever opportunity occurred, 
 signified his dissent, is not a member of the corporation it created, 
 was not liable to their assessments, and therefore the sale of his land 
 was without authority of law and is void. * * * 
 
 Plaintiff non-suit. 
 
 Note. 1. While the granting of a charter is the enactment of a law, it is a 
 law of a peculiar character; it is one made to take effect upon any one only 
 after its acceptance by those to whom, or for whose use, it is granted. It does 
 not become binding upon them or any one till accepted, but when accepted 
 by the grantees it then becomes the law of the corporate existence, binding 
 upon, not only those who accept, but also upon all others who may have any 
 dealings with or be affected by the existence of the corporation thereby cre- 
 ated. It then becomes a law of the state, the same as any other law, and the 
 maxim that "ignorance of the law excuses no one," applies in this case as in 
 all others, not only to the corporators and members, but others as well. Not 
 only this, but after its acceptance it becomes an executed grant upon a condi- 
 tion subsequent i. e., that it will be used properly under penalty of forfeiture 
 for abuse but otherwise not the subject of revocation or amendment without 
 consent of the grantees, unless the power to do so is reserved at the time of
 
 64 LIMITS ON POWER TO CREATE. 309 
 
 the Arrant. See infra, canes on the subject, acceptance of the charter, contracts 
 contained in the charter, pp. 409, 707. 
 
 See 1765, Rex v. Chancellor of Cambridge, 3 Burr. 1661; 1787, Rex v. 
 Amery, 1 T. R. 575; 1789, King v. Passmore, 3 T. R. 240; 1819, Dartmouth 
 College v. Woodward, 4 Wheat. (U. S.) 518, infra, p. 708; 1820, Lincoln, etc., 
 Hank v. Richardson, 1 Greenleaf (Me.) 79; 1825, Rex v. Westwood, 4 B. & 
 C. 781 ; 1833, Fire Department v. Kip, 10 Wend. 266; 1840, Falconer v. Camp- 
 bell, 2 McLean (U. S. C. C.) 196, supra, p. 287; 1840, Coffin v. Collins, 17 Me. 
 440; 1842, Bailey v. Mayor of N. Y., 3 Hill (N. Y.) 531; 1847, Haslett v. 
 Wotherspoon, 1 Strob. Eq. (S. C.) 209; 1854, New Orleans J. & G. N. R. v. 
 Harris, 27 Miss. 517; 1861, State v. Dawson, 16 Ind. 40, infra, p. 412; 1883, 
 McKay v. Beard, 20 S. C. 156; 1885, Smith v. Silver Valley M. Co., 64 Md. 
 85; 1889, Be Metropolitan Transit Co., Ill N. Y. 588; 1891, Demarest v. 
 Flack, 128 N. Y. 205; 1892, Welsh v. Plumas Co., 94 Cal. 368; 1896, Quinlan 
 v. Houston, etc., Ry., 89 Tex. 356. 
 
 Sec. 64. (b) May be exclusive, but not so unless expressly made 
 so. But even when made exclusive may be appropriated to 
 a public use under the power of eminent domain, upon com- 
 pensation being made. 
 
 THE PROPRIETORS OF THE PISCATAQUA BRIDGE v. THE NEW 
 HAMPSHIRE BRIDGE ET AL. 1 
 
 1834. IN THE SUPERIOR COURT OF THE JUDICATURE OF NEW HAMP- 
 SHIRE. 7 N. H. Rep. 35-72. 
 
 [Bill in chancery to restrain defendants from erecting a bridge across 
 the Piscataqua river at any place between Nanny's Island and Wal- 
 ton's Point. In 1793 plaintiffs were incorporated to build a bridge 
 between Bloody Point and Furbur's Ferry (as stated in the title), the 
 preamble stating that a bridge at the place above named would be of 
 public utility. The third section of the act authorized the bridge to 
 be built anywhere between Bloody Point and Furbur's Ferry, inclu- 
 sively, while the sixth section provided that the "exclusive right of build- 
 ing and maintaining a bridge across said Piscataqua river, anywhere 
 between Walton's Point, so called, being easterly of Knight's or 
 Bloody Point Ferry and Nanny's Island, so called, laying at the bot- 
 tom of Great Bay, above Furbur's Ferry, be and the same is fully 
 granted to said petitioners, and such as are or may be associated with 
 them, and become proprietors, their heirs and assigns." In 1853, 
 the defendants were incorporated with authority to build and main- 
 tain a bridge across the same river between Newington and Durham. 
 Plaintiff's bridge was erected in 1794 between these towns. It was 
 conceded that the place where the defendants proposed to erect this 
 bridge was within the limits stated in the sixth section of plaintiff's 
 charter, but not within the limits set forth in the title, preamble and 
 third section.] 
 
 1 Statement of facts abridged. Arguments omitted. Part of opinion 
 omitted.
 
 3IO PISCATAQUA BRIDGE V. NEW HAMPSHIRE BRIDGE. 64 
 
 PARKER, J. * * * The answer admits that defendants are about to 
 erect a bridge at the place specified, and claims a right so to do under 
 the authority of the legislature, and we must, therefore, proceed to in- 
 quire whether its erection will infringe the rights of the plaintiffs, and 
 be the means of such injustice to them as should be prevented by a writ 
 of injunction. 
 
 It is objected, on the part of the defendants, that the charter of 
 the plaintiffs does not give them such limits that the erection of a pro- 
 posed bridge, by the defendants, will interfere with their exclusive 
 rights. It is said that by the terms of their charter the plaintiffs had 
 no right to build a bridge anywhere, except between Bloody Point 
 and Furbur's Feny, and that, taking the title of the act, together with 
 the section cited, all the exclusive rights of the plaintiffs, if they have 
 any beyond the place occupied by their bridge, must be limited to 
 Bloody Point on the one hand and Furbur's Ferry on the other; that 
 if they have any claim of right above Furbur's Ferry, it can be only 
 a right to preclude others from building a bridge, not to build one 
 themselves, that this can not be a franchise, and that their exclusive 
 limits can not extend beyond the limits in which they might erect a 
 bridge. And if this be the true construction of the plaintiffs' rights, 
 the defendants allege that they can accomplish all they are attempting 
 to do without any violation of the rights or franchises of the plaintiffs. 
 
 But we can not restrict the grant to the plaintiffs by the title and 
 preamble of the act. If we find within the body of the act an ex- 
 press and unequivocal grant of powers and rights not mentioned in 
 the title or preamble, we can not restrict the grant of those rights 
 merely because the terms of such grant are more extensive than 
 the terms of the title and preamble. 7 Pick. 455. 
 
 If the title had been an act to incorporate certain persons for the 
 purpose of building a bridge at Fox Point, the place where the plaint- 
 iffs erected their bridge, and the act itself granted to the corporation, 
 in explicit terms, the right to build between Walton's Point and 
 Nanny's Island, the grant could not be construed to be of the right 
 mentioned in the title alone. 
 
 The sixth section of the plaintiffs' charter gave them, in terms, the 
 exclusive right of building and maintaining a bridge across the Pisca- 
 taqua river, anywhere between Walton's Point and Nanny's Island ; 
 and there is, in this section, no reference to any other part of the 
 charter by which this grant of power and right is to be restricted. 
 
 On the supposition that by the charter the plaintiffs were obliged to 
 erect this bridge within the limits between Bloody Point and Furbur's 
 Ferry, as specified in the third section, we see no reason, if the legis- 
 lature may grant exclusive rights, to doubt their power to grant to the 
 plaintiffs exclusive limits, connected with the grant of their bridge 
 even beyond the limits in which their bridge must be erected. 
 
 Such right of exclusion might be essentially necessary to ensure the 
 erection and maintenance of the bridge, notwithstanding the bridge 
 itself might be required to be erected within smaller limits, or at a 
 definite place and if so it was competent for the legislature to make
 
 64 LIMITS ON POWER TO CREATE. 311 
 
 such a grant, attached to the grant of the bridge, if they might law- 
 fully grant any exclusive limits. 
 
 It might, perhaps, admit of question whether the sixth section did 
 not give the plaintiffs power to erect their bridge anywhere within 
 the exclusive limits designated in that section, but this is not material 
 to ilie present case. 
 
 It is further contended that the plaintiffs' charter gave them only 
 the exclusive right of selecting a site for their bridge within certain 
 limits, and that, having made their selection and erected their bridge, 
 the place of erection becomes thenceforth the only exclusive right 
 which they can claim under their charter. 
 
 But we can not adopt this construction of the grant, not only be- 
 cause such are not the terms in which the grant is made, but because 
 it is apparent that such construction would defeat the object which 
 must have been in contemplation in procuring and making the grant 
 of an exclusive right. 
 
 The charter of the plaintiffs, then, confers upon them by its terms 
 the exclusive right of building and maintaining a bridge between 
 Walton's Point and Nanny's Island, and it is conceded that these 
 limits cover the whole ground upon which the defendants claim a 
 right to erect their bridge. 
 
 The next question is whether this was a constitutional and valid 
 grant. 
 
 The answer alleges that at the time of this grant one Levi Furbur 
 had a right of ferry within those limits; that no compensation was 
 provided for Furbur, and that the grant is unconstitutional and void. 
 
 That Furbur was in the occupation of a ferry at the time of the 
 grant of the plaintiffs, which was within the exclusive limits granted 
 to them, seems to be conceded. What his right was, or how it orig- 
 inated, does not appear. 
 
 There is nothing to show that his ferry was not set up by him 
 without any authority. 
 
 On the supposition that he occupied under a grant, it is not to be 
 inferred of course that the grant extended beyond the place he occu- 
 pied. 
 
 If Furbur had had the grant of a ferry, generally, we should pause 
 before holding that the legislature could not grant a bridge, or even 
 another ferry, so near as to be consequentially injurious to him. Upon 
 this subject different opinions have been entertained ; and it may be 
 well questioned whether the grantee of a ferry, or of a right to erect 
 and maintain a bridge at a particular place without any terms of 
 exclusion in the grant, can set up that right in avoidance of any 
 other grant which is not directly injurious in its operation, but in- 
 iurious merely in its remote consequences by diverting travel and 
 tolls. Callender v. Marsh, i Pick. 432. 
 
 It would seem to have been the understanding in this state, at least, 
 that if the party intended to secure himself from competition of this 
 character he must obtain a provision to that effect in his grant ; and 
 if no such provision is found, it may well be held that the grant was
 
 312 PISCATAQUA BRIDGE V. NEW HAMPSHIRE BRIDGE. 64 
 
 taken with a reliance on the wisdom and discretion of the legislature 
 to protect the grantee from injurious competition, by refusing to 
 authorize any other enterprise of a similar character in the immediate 
 vicinity, unless required by an imperious necessity ; and with an assent 
 on the part of the grantee that, whenever the legislature should deem 
 it expedient, they might make other grants remotely affecting the 
 former, so long as the right and privilege conferred by the terms of 
 the grant were not infringed. But it is not important to settle that ques- 
 tion here. 
 
 If it was shown that Furbur had an exclusive right of ferry within 
 certain limits, we are not prepared to hold that the legislature might 
 not lawfully grant a right to erect a bridge within those limits if the 
 locus in quo occupied by him for his ferry was not taken, and he was 
 left to the enjoyment of an exclusive right of ferry as before. 
 
 The erection of a bridge near his ferry might be consequentially 
 injurious to him. It might deprive him of the profits of his ferry ; 
 and yet if his right of ferry was not infringed, how could the act be 
 held to be unconstitutional ? 
 
 The grant of an exclusive right of ferry is certainly not an exclusive 
 right of all modes of transportation and conveyance. 
 
 Whatever Furbur's rights may have been, he does not appear to 
 have complained of the erection of the plaintiffs' bridge; and whether 
 they purchased his consent, or he abandoned his ferry without, the de- 
 fendants are in no way connected with him, nor would the state, by 
 an extinguishment of his right of ferry, gain a right to grant a bridge 
 within the exclusive limits for a bridge already granted to the plaint- 
 iffs ; although the legislature might perhaps for that reason grant an- 
 other ferry at the same place. 
 
 It is further contended that the legislature which granted the char- 
 ter of the plaintiffs' had no power to grant such an exclusive right, 
 and that the act, therefore, so far as it purports to give exclusive lim- 
 its, is void. 
 
 By the constitution of this state, full power and authority are given 
 and granted to the general court "from time to time to make, ordain 
 and establish all manner of wholesome and reasonable orders, laws, 
 statutes, ordinances, directions and instructions, either with penalties 
 or without, so as the same be not repugnant or contrary to this consti- 
 tution, as they may judge for the benefit and welfare of the state," 
 etc. N. H. Laws 7. 
 
 There is certainly no express provision of the constitution authoriz- 
 ing, in so many words, a grant of this character. It is equally certain 
 that there is no express prohibition of such an act. "When," says 
 Chief Justice Kent, "the people erect a single entire government, they 
 grant at once all the rights of sovereignty. The powers granted are 
 indefinite and incapable of enumeration. Everything is granted that is 
 not expressly reserved in the constitutional charter, or necessarily re- 
 tained as inherent in the people." Livingston v. Van Ingen, 9 
 Johns. 574.
 
 64 LIMITS ON POWER TO CREATE. 313 
 
 It will not be necessary to resort to any principle so broad as this 
 to show that the legislature may make a grant of this character. 
 
 The constitution nowhere gives the legislature, in terms, the power 
 to make a grant of land, or a charter of incorporation, or to confer a 
 right to make bridges, turnpikes or canals, but such power has always 
 been exercised, and no one doubts the right to make such grants. 
 Fletcher v. Peck, 6 Cranch 128. 
 
 If this is conceded, the legislature may certainly make exclusive 
 grants. 
 
 They may grant land in fee-simple, and the grantee will have an 
 exclusive right. '-Cujus est solum ejus est usque ad coelum, et ad in- 
 J~cros" and he has this to him, and his heirs and assigns forever. 
 Nothing can well be imagined more exclusive than this. 
 
 They may grant a bridge across a navigable river. No one can 
 justify such erection without a grant. But such grant is necessarily 
 exclusive to a certain extent. So far as the structure itself extends, 
 so far the right must be exclusive. No one will contend that a sub- 
 sequent legislature could regard such grant as void, and for that rea- 
 son authorize the building of another upon the same foundation, or 
 one which should occupy a part of the space already in the possession 
 of the grantee. 
 
 The legislature then has power to grant a right to build and main- 
 tain a bridge, and the right will be exclusive to the extent occupied 
 by the bridge, which may be of greater or less dimensions, according 
 to the grant. 
 
 What limits the power of the legislature to the positions occupied 
 by the wood and stone used in the construction of the work? 
 
 If the legislature may grant a right which will be exclusive to the 
 extent of forty feet or sixty feet, or what number of feet or rods, shall 
 we fix the limits of the power so that all beyond is void? 
 
 If it be necessary, in order to effect the object, that the grant should 
 be exclusive to the usvial width of the bridge, it may be equally 
 necessary to the accomplishment of the purpose, that the limits 
 should be still more extensive. It may be necessary to lay the foun- 
 dation much broader. It may be necessary to erect works above and 
 below for the preservation of the structure. 
 
 If the legislature may grant the right to build the bridge, and may 
 grant exclusive power over space sufficient for its erection, because 
 otherwise the grant could not be carried into effect, why may they 
 not grant such power over space sufficient in other respects to insure 
 its erection ? Why may they not make a grant of such extent that 
 the grantees will think the prospect of remuneration sufficient to in- 
 duce them to undertake the work? 
 
 Again the legislature may undoubtedly grant with reference to the 
 preservation of <:he bridge. Such is one of the objects in granting a 
 toll. If they may grant powers and rights with a view to preserve it 
 from floods, by the erection of works of security above or below ; 
 and if they may grant tolls in order to preserve it from decay, why
 
 3 14 PISCATAQUA BRIDGE V. NEW HAMPSHIRE BRIDGE. 64 
 
 may they not extend the exclusive right so far that these tolls will 
 furnish adequate means for keeping it in repair? 
 
 It is not our province to judge how extensive the grant to the plaint- 
 iffs ought to have been. It was said in the argument that the neces- 
 sity of the act authorizing the defendants to erect a bridge is conclu- 
 sively proved by the grant itself that the court are not to inquire into 
 that necessity. And so of the plaintiffs' exclusive limits the neces- 
 sity of their extent in order to effect the object was for the considera- 
 tion of the legislature and not for us. 
 
 Charters with exclusive privileges have been repeatedly granted 
 here and elsewhere. 9 Wheat. 97, note a. They have been deemed 
 necessary to the promotion of enteiprises of public utility, and have 
 in many instances operated greatly to the convenience of the com- 
 munity, as the means of accomplishing public improvements which 
 would not otherwise have been undertaken, or must have been delayed 
 to a much later period. 
 
 The right to make such exclusive grants has been supported by 
 some of the most eminent counsel in the United States, and has not 
 been contested by others ~vho would not have failed to deny it had it 
 been deemed of a questionable character. It has received the sanc- 
 tion of some of the most learned tribunals in the Union, and we see 
 no reason to doubt the soundness of the principle. Proprietors of 
 Charles River Bridge v. Warren Bridge, 7 Pick. 393, 440, 448, 456, 
 4 6 5> 473> 47 6 > 49 2 5 J 95 Livingston v. Van Ingen, 9 Johns. 525, 
 55 1 ' 559> 5 6 3> 573 5 8 4; Ogden v. Gibbons, 4 Johns. C. R. 150; 
 17 Johns. 488; Gibbons v. Ogden, 9 Wheat. 74, 143. 
 
 It has not been contended that there is anything in the provision of 
 the constitution of the United States authorizing congress to regulate 
 commerce, or in any act of congress which militates, in any degree, 
 with the power of granting an exclusive right of building a bridge 
 within the territory of a state, and there seems to be no ground for 
 any such supposition. North River Steamboat Co. v. Livingston, 
 3 Cowen 733, 754, 9 Wheat. 19, 203, 235; The People v. Babcock, 
 ii Wendell 590; 2 Peters S. C. R. 245. 
 
 It has been urged in the argument that if the legislature may grant 
 exclusive rights of this character, a legislature opposed to manufac- 
 tures, to internal improvements or to banking might grant a small 
 cotton factory, with the exclusive right of manufacturing within the 
 state, or a short railroad or a single bank, with exclusive privileges, 
 and the public thus suffer great injury. 
 
 It will be in time to consider whether grants of such a character 
 are within the constitutional exercise of the legislative power and 
 whether they may or may not be avoided, when a case is presented 
 to us in which it is apparent that a fraud must have been practiced in 
 obtaining the grant, or the circumstances under which it was made 
 show that it was merely colorable, and intended to effect other pur- 
 'poses than those which appear upon the face of it. 
 
 There is nothing in this case to lead to a supposition that this grant 
 was not fairly obtained that the public good did not require a grant
 
 64 LIMITS ON POWER TO CREATE. 3 I 5 
 
 of the powers and rights contained in the charter or that the consid- 
 eration on the part of the grantees, in providing a great public high- 
 way for the convenience of the citizens, was not fully adequate to all 
 the rights and privileges they received. It appears that the grantees 
 did not overreach the legislature. The enterprise was one of great 
 public utility ; and while the community have had all the benefit which 
 was contemplated from the grant, the grantees, it is not denied, were 
 subjected to great loss the expenditure far exceeding the estimates. 
 
 Cases may exist where, owing to a change in the population, busi- 
 ness and intercourse of the country, the public interest may require 
 the opening of new avenues within the limits of such exclusive grants, 
 and in which the individual right should be made subservient to the 
 public use ; but this maybe done without a violation of the public faith. 
 Whatever the public requires they are able to pay for and it is not 
 for the public interest that the grants of the government should be 
 held good so long only as there is no desire to interfere with them 
 good while they are onerous to the grantee, and invalid when others 
 may wish to participate in the benefits derived from them. 
 
 It is argued that the only pretended right of the plaintiffs is a prom- 
 ise not to give liberty to others to build a bridge ; but we do not view 
 it in that light. The charter of the plaintiffs contains a grant of a 
 franchise an incorporeal hereditament. The grant of an exclusive 
 right is part of that franchise granted in connection with their right 
 to build a bridge, and in aid of that right holden with that right 
 capable of being used by the erection of a bridge elsewhere than in its 
 present location may be attached with the rest of the franchise, and 
 taken on execution and under it the plaintiffs may grant a license to 
 build a bridge within those limits to any one who has obtained a grant 
 of authority from the legislature to erect such bridge. 
 
 The plaintiffs have a property in their exclusive grant and it is not 
 a mere stipulation on the part of the legislature that no other liberty 
 to erect a bridge shall be granted. 
 
 The plaintiffs then having an exclusive grant to the extent set forth 
 in their bill, the next inquiry is, whether the defendants, by virtue of 
 their charter, can lawfully proceed to erect another bridge within 
 those limits? 
 
 It is urged that if the charter of the plaintiffs is a contract, it is 
 subject to the implied condition of yielding to the public necessity 
 and convenience that if their grant be property, it may, like other 
 property, be taken for public use, and that although no compensation 
 is provided here, that does not make the grant to the defendants 
 void, but the plaintiffs may have an action. 
 
 The charter of the defendants is not unconstitutional or void. Of 
 itself it impairs no rights. As a grant to the individuals named in it 
 to be a corporation, it is conceded to be good. As against the pub- 
 lic, it contains a valid grant of a right to build a bridge and to take 
 tolls, and if the defendants can agree with the plaintiffs, we see no 
 objection with their proceeding under their charter, and enjoying all 
 the privileges it purports to confer.
 
 316 PISCATAQUA BRIDGE V. NEW HAMPSHIRE BRIDGE. 64 
 
 If the charter itself was an unconstitutional act, it would be wholly 
 void, and the defendants could not rightfully build a bridge and de- 
 mand tolls, on purchasing of the plaintiffs a right or license to erect 
 one within their limits, which it is admitted they might do. 
 
 But can they lawfully proceed to erect such bridge without the con- 
 sent of the plaintiffs? 
 
 We are of opinion that if the charter of the defendants had made 
 proper provision for a compensation to the plaintiffs, the legislature 
 might have authorized the building of another bridge within their ex- 
 clusive limits, even without their consent. 
 
 In such case the grant itself would furnish plenary evidence that 
 the public interest required the taking of private property for public 
 use ; and we see no objection to taking a part of the plaintiffs' fran- 
 chise. 
 
 That franchise, as we have said, is property. "No part of a 
 man's property shall be taken from him or applied to public uses, 
 without his own consent, or that of the representative body of the 
 people." N. H. Bill of Rights, Art. 12. 
 
 This has always been understood necessarily to include, as a matter 
 of right, and as one of the first principles of justice, the further limi- 
 tation, that in case his property is taken without his consent, due com- 
 pensation must be provided, i Black. Com. 139; Gardner v. Vil- 
 lage of Newburgh, 2 Johns. C. R. 166, and authorities there cited. 
 
 It is not supposed here that even the consent of the representative 
 body of the people could give authority to take the property of indi- 
 vidual citizens for highways, bridges^ ferries and other works of in- 
 ternal improvement without the assent of the owner, and without 
 any indemnity provided by law. Such a power would be essentially 
 tyrannical and in contravention of other articles in the bill of rights. 
 
 This defense is not attempted to be supported upon any such prin- 
 ciple. 
 
 But if adequate compensation is provided, in a proper manner, it 
 is admitted that private property may be taken without the special 
 consent of the owner in each particular case. 
 
 No distinction is made in the constitution between property of one 
 description and that of another ; and if a franchise is property we do 
 not discover upon what ground it claims an exemption from the same 
 liabilities to which other property is subjected. 
 
 If the government had been the owner of the land along the Piscat- 
 aqua river, and had granted to the plaintiffs a tract of land co-exten- 
 sive with their exclusive limits, the legislature might, afterwards, have 
 authorized the taking of a portion of the land so granted, making pro- 
 vision for compensation to the grantee notwithstanding the exclusive 
 nature of the grant. 
 
 If instead of a corporeal hereditament, the legislature have granted 
 an incorporeal hereditament of such a nature that it may afterwards 
 be necessary that the property, or a part of it, betaken for public use, 
 why is not that subjected to the public servitude, and in the same
 
 64 LIMITS ON POWER TO CREATE. 317 
 
 manner? There seems to be no substantial difference between the two 
 which requires the adoption of a different rule in this respect. 
 
 Had the legislature granted merely the right to build and main- 
 tain a bridge from point to point, and take tolls, and the public neces- 
 sities afterward required that a portion or even the whole of that 
 bridge should be taken for other public purposes, is there any ques- 
 tion that this might have been done, if due compensation was pro- 
 vided for the owners? We think not. 7 Pick. 459, 500. Yet, as 
 has been before stated, the grantees would most unquestionably have 
 had an exclusive right in their bridge and tolls. Where, then, is the 
 difference between a grant exclusive in its effect, and one exclusive in 
 its terms ? The latter is no more than exclusive. 
 
 If the grant had been of the "exclusive" right of building a bridge 
 from point to point, without any extended limits, the property of the 
 bridge when built would be no more exclusive, nor the right more 
 exclusive than it would be if the grant had been made without the 
 use of the term "exclusive;" and if the property is subject to be taken 
 for public use in the one case it must be so in the other. If these 
 extended limits of exclusion are added, how does that change the 
 nature of the case ? 
 
 If the grant amounts to an extinguishment of the right of the legis- 
 lature to bestow the same identical franchise upon another corporate 
 body, and implies a contract not to reassert the right to grant the fran- 
 chise to another, or to impair it (4 Wheat. 658, 682), there is the 
 same extinguishment of the right of the grantor, and the same implied 
 contract not to reassert that right in a grant of lands. 6 Cranch 137. 
 The grantee of a fee-simple takes, under a contract, an absolute 
 estate in some respects, but subject to an implied condition or limita- 
 tion, by which the lands may afterwards be taken for pttblic use 
 for turnpikes, railroads, canals, bridges, etc., whenever the public 
 necessities demand it; and a "grant of franchises is not in point 
 of principle distinguishable from a grant of any other property." 
 4 Wheat. 684. 
 
 The grant under which the plaintiffs took this property is admitted 
 to be a contract, and that contract is inviolable. The legislature can 
 not annul that contract, or in any way impair its obligation. The 
 plaintiffs have taken and received all the legislature contracted to 
 give. It is an executed contract (4 Wheat. 690), and the plaintiffs 
 entitled to be protected in the enjoyment of the property acquired un- 
 der it, to as great an extent as they are protected in the enjoyment of 
 any other species of property. 
 
 It does not impair that contract to hold that the property acquired 
 under it may be taken for public use that it is liable to be subjected 
 to the public servitude and the public burdens. Fletcher v. Peck, 
 6 Cranch 145; Green v. Biddle, 8 Wheat. 89, 101 ; Providence Bank 
 v. Billings, 4 Peters S. C. R. 563. 
 
 The grant contains no covenant, in terms, that the state will never 
 grant another bridge within those limits, nor do we think that any 
 such covenant is to be implied, and of course no obligation to that
 
 318 PISCATAQUA BRIDGE V. NEW HAMPSHIRE BRIDGE. 64 
 
 effect is imposed. Sturgis v. Crowninshield, 4 Wheat. 197; Jackson 
 v. Lamphire, 3 Peters 289. 
 
 The terms and object of the grant are satisfied without any such 
 stipulation. The grantees have all the state professed to grant the 
 exclusive right. They have a property in this, and no part of it can 
 be taken from them except for public use, and upon adequate com- 
 pensation being made. 
 
 If a grant of a franchise is like other grants of property, why should 
 a covenant be implied extending the right of property in a franchise 
 of this character beyond the rights of the holders of other property, 
 and enabling the grantees to resist all public improvements, and deny 
 all public wants entirely, or until such compensation as they please to 
 demand shall be made to them? 
 
 When the legislature shall have granted land, with a covenant that no 
 highway, canal or railroad shall ever be made through it, or a bridge, 
 with a stipulation that no other bridge shall ever be erected within a 
 certain distance, it may deserve inquiry whether such a contract is 
 within the scope of its constitutional power? whether the right to 
 provide for the public necessities, and to take property for public 
 use whenever those necessities require it, making therefor an ade- 
 quate compensation, are not inherent rights of sovereignty which no 
 legislature can part with or control by any stipulation so as to bind 
 the people or their successors who represent the people ? 
 
 How far the case, New Jersey v. Wilson, 7 Cranch 164, may coun- 
 tenance the supposition that the legislature may even make a contract 
 of that character, need not be considered. It may be remarked that 
 the question, whether the legislature had the power to make a contract 
 which would bind the state not to tax the lands after they came into the 
 possession of the citizens, does not seem to have been brought into dis- 
 cussion. But it must have been involved in the decision, the inquiry 
 being whether the act of exemption was a contract. 
 
 Whether upon reconsideration the principle of that case can be sup- 
 ported, and if it may, whether it is to be extended beyond the decis- 
 ion itself, we do not inquire. 4 Peters' S. C. R. 561. 
 
 We conclude, then, that the legislature might lawfully authorize the 
 taking of a portion of the plaintiffs' franchise for public use, making 
 a just compensation ; but have they done so in the present instance ? 
 
 It is not pretended that the defendants' charter provides for any 
 indemnity to the Piscataqua Bridge corporation ; and the position that 
 the defendants may take their property because the plaintiffs will have 
 a right of action can not be supported. 
 
 Had the plaintiffs seen fit to suffer their property to be taken, and 
 sought redress for the injury by action, it might have been sustained; 
 but this is not the compensation intended by the law when property is 
 taken for public use. Gardner v. The Village of Newburgh, 2 Johns. 
 C. R. 162; Perry v. Wilson, 7 Mass. 393; Callender v. Marsh i 
 Pick. 430; Proprietors of Charles River Bridge v. Warren Bridge, 
 6 Pick. 404. 
 
 It is not by way of damages to be obtained in an action for an in-
 
 64 LIMITS ON POWER TO CREATE. 319 
 
 jury done that the party is entitled to be indemnified for property thus 
 lawfully taken. 
 
 There is a dictum in Stevens v. The Proprietors of Middlesex 
 Canal, 12 Mass. Rep. 408, implying that the act of taking may be 
 lawful, and yet an action sustained for the injury, but this evidently 
 had not been fully considered, i Pick. 430, 435. Such a proposi- 
 tion may be said to be felo de se. 
 
 The plaintiffs have a grant of certain exclusive limits. The de- 
 fendants claim a right to erect a bridge within those limits, upon the 
 ground that their charter give them a right to erect such bridge, and 
 that the plaintiffs may have compensation for the injury done to them 
 by a suit at law. But if the defendants have a right to erect a bridge, 
 what wrong or injury is done? If the plaintiffs might have an action 
 on the case for the injury, which was the form in Chadwick v. The 
 Proprietors of Haverhill Bridge, cited in support of the position, that 
 negatives the idea of a right. It presupposes an interference contrary 
 to law. The legislature can not empower any one to do a wrong, 
 and a right to take by wrong would be a solecism. So far as the de- 
 fendants may act lawfully under their charter, they will not subject 
 themselves to an action for an injury. So far as they can not lawfully 
 act, they ought to refrain from acting. 
 
 Whenever lawful authority is given to take property for public use, 
 tne act of taking is justifiable. There is no injury to the rights of the 
 party, and no action as for a tort can accrue. Recompense is made 
 for what is legally taken, and the party can not complain that a wrong 
 is done, for his property has been taken according to the laws of the 
 land. 
 
 It might have been sufficient, in this case, to have said that the 
 charter of the defendants does not purport to give them any right to 
 interfere with the property of the plaintiffs without their consent. It 
 authorizes them to purchase real estate, and hold it in fee-simple. It 
 does not authorize the taking of any property whatever, except by 
 agreement with the owners ; and there is, of course, no evidence of 
 any public necessity requiring that the property of others should be 
 taken, except by their own consent. 
 
 The defendants, therefore, in attempting to build their bridge with- 
 out the consent of the plaintiffs, can not, for this reason, rely upon 
 their charter; and we might have waived any discussion of some of the 
 questions raised in the case ; but the interest of these parties, and per- 
 haps of others, rendered it expedient for us to consider all the points 
 which have been suggested. 
 
 It has been said that equity will not relieve against a statute. The 
 authority cited only goes to establish the position, that equity can not 
 disregard the provisions of a valid law, and relieve against it. Of this 
 there is no question. It is not pretended that we can restrain the de- 
 fendants from doing a lawful act. 
 
 But if the principle was, that, sitting as a court of equity, we would 
 not decide in this mode against the constitutionality or validity of a 
 statute or grant, which we find nowhere sustained, there is nothing in
 
 32O LUXTON V. NORTH RIVER BRIDGE CO. 65 
 
 the facts in this case that would bring us in conflict with such a prin- 
 ciple. 
 
 The question is, whether we shall enjoin the defendants from doing 
 an act under color of their charter, which it does not authorize them 
 to do, and we are all of opinion that the right being clear, the relief 
 sought by the bill must be granted, and an injunction issued to restrain 
 the defendants from building a bridge at any place within the limits of 
 the exclusive grant to the plaintiffs, without their consent. 
 
 Injunction issued. 
 
 Note. See 1835, Dyer v. Tuskaloosa Bridge Co., 2 Porter (Ala. ) 296, 27 Am. 
 Dec. 655; 1837, Charles River Bridge v. Warren Bridge, 11 Peters (U. S.) 420; 
 1840, Tuckahoe Canal Co. v. Tuckahoe, 11 Leigh (Va.) 42, 36 Am. Dec. 374; 
 1845, Enfield Toll Bridge Co. v. H. & N. H. R. Co., 17 Conn. 40, 454, 42 Am. 
 Dec. 716, note 728, 44 Am. Dec. 556; 1848, West River Bridge v. Dix, 6 How. 
 (47 U. S.) 507, 531; 1859, LaFayette Plank Road Co. v. N. A. & S. R., 13 Ind. 
 90, 74 Am. Dec. 246; 1863, Bridge Proprietors v. Hoboken, 1 Wall. (68 U. S.) 
 116; 1865, The Binghampton Bridge, 3 Wall. (70 U. S.) 51 ; 1872, Eastern R. 
 v. Boston, etc., R., Ill Mass. 125, 15 Am. Rep. 13; 1877, Hudson v. Cnero 
 Land & Em. Co., 47 Tex. 56, 26 Am. Rep. 289; 1885, Louisville Water Works 
 Co. v. Rivers, 115 TL S. 674; infra, p. 1416; 1885, New Orleans Gas L. Co. v. L. 
 L. & H. P. Co., 115 U. S. 650; 1888, Appeal of Pittsburgh J. R., 122 Pa. St. 
 511, 9 Am. St. Rep. 128; infra, p. 1342; 1888, Rockland Water Co. v. Camden 
 & R. W. Co., 80 Maine 544, 25 Am. & Eng. C. C. 423. 
 
 ARTICLE III. CONSTITUTIONAL LIMITS. 
 
 (a) In the National Constitution. 
 
 Sec. 65. (l) On congress. 
 
 LUXTON v. NORTH RIVER BRIDGE COMPANY. 
 
 1894. IN THE SUPREME COURT OF THE UNITED STATES. 153 U. S 
 Reports 525-534; 14 Sup. Ct. Rep. 891. 
 
 This was a petition by the North River Bridge Company, incorpo- 
 rated by the act of congress of July n, 1890, ch. 669. for the appoint- 
 ment under that act of commissioners to assess damages for the appropri- 
 ation and condemnation, for the approaches to its bridge across the 
 Hudson or North River, between the states of New York and New Jer- 
 sey, of land of Sarah Luxton in the city of Hoboken and the county of 
 Hudson, in the latter state. Upon the order of the circuit court, appoint- 
 ing commissioners, she sued -out a writ of error, which was dismissed 
 by this court, at the last term, because that order was not a final judg- 
 ment. 147 U. S. 337. The commissioners afterwards made an 
 award and report, assessing her damages at the sum of $2,000, to the 
 acceptance of which she objected, upon the grounds that the act of 
 congress was unconstitutional, and particularly that congress could not 
 confer the right of eminent domain upon the company. But the court 
 overruled the objection, and adjudged that the award be approved and 
 confirmed, and remain on record in the office of its clerk, and that, 
 upon payment or tender of the sum awarded, the company might
 
 65 LIMITS ON POWER TO CREATE. 321 
 
 enter upon and take possession of the land for the purpose for which 
 it was condemned. She thereupon sued out this writ of error. 
 
 MR. JUSTICE GRAY, after stating the case, delivered the opinion of 
 the court. 
 
 The validity of the act of congress incorporating the North River 
 Bridge Company rests upon principles of constitutional law, now 
 established beyond dispute. 
 
 The congress of the United States being empowered by the con- 
 stitution to regulate commerce among the several states, and to pass 
 all laws necessary or proper for carrying into execution any of the 
 powers specifically conferred, may make use of any appropriate 
 means for this end. As said by Chief Justice Marshall, ''the power 
 of creating a corporation, though appertaining to sovereignty, is not, 
 like the power of making war, or levying taxes, or of regulating com- 
 merce, a great substantive and independent power, which can not be 
 implied as incidental toother powers, or used as a means of executing 
 them. It is never the end for which other powers are exercised, but a 
 means by which other objects are accomplished." Congress, there- 
 fore, may create corporations as appropriate means of executing the 
 powers of government, as, for instance, a bank for the purpose of 
 carrying on the fiscal operations of the United States, or a railroad 
 corporation for the purpose of promoting commerce among the states. 
 McCulloch v. Maryland, 4 Wheat. 316, 411,. 422; Osborn v. Bank 
 of United States, 9 Wheat. 738, 861, 873; Pacific Railroad Removal 
 Cases, 115 U. S. i, 18; California v. Pacific Railroad, 127 U. S. i, 
 39. Congress has likewise the power exercised early in this century 
 by successive acts in the case of the Cumberland or National Road 
 from the Potomac across the Alleghenies to the Ohio, to authorize 
 the construction of a public highway connecting several states. See 
 Indiana v. United States, 148 U. S. 148. And whenever it becomes 
 necessary for the accomplishment of any object within the authority 
 of congress, to exercise the right of eminent domain and take private 
 lands, making just compensation to the owners, congress may do this 
 with or without a concurrent act of the state in which the lands lie. 
 Van Brocklin v. Tennessee, 117 U. S. 151, 154, and cases cited; 
 Cherokee Nation v. Kansas Railway, 135 U. S. 641, 656. 
 
 From these premises, the conclusion appears to be inevitable that, 
 although congress may, if it sees Jit, and as it has often done, recog- 
 nize and approve bridges erected by authority of two states across 
 navigable -waters bet-ween them, it may, at its discretion, use its sover- 
 eign powers, directly or through a corporation created for that ob- 
 ject, to construct bridges for the accommodation of interstate com- 
 merce by land, as it undoubtedly may to improve the navigation of 
 rivers for the convenience of interstate commerce by water, i Hare's 
 Constitutional Law, 248, 249. See acts of July 14, 1862, ch. 167, 12 
 Stat. 569; February 17, 1865, ch. 38, 13 Stat. 431; July 25, 1866, 
 ch. 246, 14 Stat. 244; March 3, 1871, ch. 121, 5, 16 Stat. 572, 
 573; June 16, 1886, ch. 417, 24 Stat. 78. 
 
 The judicial opinions cited in support of the opposite view are not, 
 21 WIL. CASKS.
 
 322 LUXTON V. NORTH RIVER BRIDGE CO. 65 
 
 having regard to the facts of the cases in which they were uttered, of 
 controlling weight. 
 
 Mr. Justice McLean, indeed, in an opinion delivered by him in the 
 circuit court, by which a bill by the United States to restrain the con- 
 struction of a bridge across the Mississippi River was dismissed, no 
 injury to property of the United States and no substantial obstruction 
 to navigation being shown, and there having been no legislation by 
 congress upon the subject, took occasion to remark that "neither under 
 the commercial power, nor under the power to establish post roads, 
 can congress construct a bridge over a navigable water;" that "if 
 congress can construct a bridge over a navigable water, under the 
 power to regulate commerce or to establish post roads, on the same 
 principle it may make turnpike or railroads throughout the entire 
 country;" and that "the latter power has generally been considered 
 as exhausted in the designation of roads on which the mails are to be 
 transported ; and the former by the regulation of commerce upon the 
 high seas and upon our rivers and lakes." United States v. Railroad 
 Bridge Co., 6 McLean 517, 524, 525. 
 
 The same learned justice repeated and enlarged upon that idea in 
 his dissenting opinion in Pennsylvania v. Wheeling Bridge, 18 How. 
 421, 442, 443, where, after the Wheeling Bridge, constructed across 
 the Ohio river under an act of the state of Virginia, had by a decree 
 of this court, at the suit of the state of Pennsylvania, been declared to 
 be in its then condition an unlawful obstruction of the navigation of 
 the river, and in conflict with the acts of congress regulating such 
 navigation, and therefore ordered to be elevated or abated, congress 
 passed an act declaring the bridge to be a lawful structure in its then 
 position and elevation, establishing it as a post road for the passage 
 of the mails of the United States, authorizing the corporation to have 
 and maintain the bridge at that site and elevation, and requiring the 
 captains and crews of all vessels and boats navigating the river to 
 regulate the use thereof, and of any pipes or chimneys belonging 
 thereto, so as not to interfere with the elevation and construction of 
 the bridge. Act of August 31, 1852, ch. in, sees. 6, 7, loStat. 112. 
 
 But the majority of this court in that case held that "the act of con- 
 gress afforded full authority to the defendants to reconstruct the 
 bridge." 18 How. 436. Mr. Justice Nelson, in delivering its opin- 
 ion, said: "We do not enter upon the question whether or not con- 
 gress possess the power under the authority of the constitution to 
 establish post offices and post roads, to legalize this bridge, for con- 
 ceding that no such powers can be derived from this clause, it must 
 be admitted that it is, at least, necessarily included in the power con- 
 ferred to regulate commerce among the several states. The regula- 
 tion of commerce includes intercourse and navigation, and, of course, 
 the power to determine what shall or shall not be deemed in judg- 
 ment of law an obstruction to navigation ; and that power, as we 
 have seen, has been exercised consistently with the continuance of 
 the bridge." 18 How. 431. And Mr. Justice Daniel, in a concur- 
 ring opinion, sustaining the validity of the act of congress, said:
 
 65 LIMITS ON POWER TO CREATE. 323 
 
 "They have regulated this matter upon a scale by them conceived 
 to be just and impartial, with reference to that commerce which pur- 
 sues the course of the river, and to that which traverses its channel, 
 and is broadly diffused through the country. They have at the same 
 time, by what they have done, secured to the government and to the 
 public at large the essential advantage of a safe and certain transit 
 over the Ohio." 18 How. 458. A similar decision was made in the 
 Clinton Bridge, 10 Wall. 454. See also Miller v. New York, 109 
 U. S. 385. 
 
 In the cases cited at the bar, of The Passaic Bridges, 3 Wall. App. 
 782, decided by Mr. Justice Grier in the circuit court, and of Oil- 
 man v. Philadelphia, 3 Wall. 713, and Wright v. Nagle, 101 U. S. 
 791, in this court, the bridge in question had been erected under 
 authority of a state, and was wholly within the state, and no question 
 arose or was considered as to the power of congress, in regulating in- 
 terstate commerce, to authorize the erection of bridges between two 
 states. 
 
 But in Stockton v. Baltimore and New York Railroad, 32 Fed. 
 Rep. 9, Mr. Justice Bradley, sitting in the circuit court, upheld the 
 constitutionality of the act of congress of June 16, 1886, ch. 417, au- 
 thorizing a corporation of New York and one of New Jersey to build 
 and maintain a bridge, as therein directed, across the Staten Island 
 Sound or Arthur Kill. 24 Stat. 78. 
 
 The reasons upon which the decision in that case rested were, in 
 substance, the same as were stated by that eminent judge in two opin- 
 ions afterwards delivered by him in behalf of this court, in which the 
 power of congress, by its own legislation, to confer original authority 
 to erect bridges over navigable waters, whenever congress considered 
 it necessary to do so to meet the demands of interstate commerce by 
 land, is so clearly demonstrated as to render further discussion on the 
 subject superfluous. 
 
 In Willamette Bridge v. Hatch, 125 U. S. i, in which it was held 
 that section 2 of the act of February 14, 1859, ch. 33 (n Stat. 383), 
 for the admission of Oregon into the Union, providingthat "all the nav- 
 igable waters of the said state shall be common highways, and forever 
 free, as well to the inhabitants of said state as to all other citizens of 
 the United States," did not prevent the state, in the absence of legis- 
 lation by congress, from authorizing the erection of a bridge over 
 such a river, Mr. Justice Bradley, speaking for the whole court, said : 
 i4 And although, until congress acts, the states have the plenary power 
 supposed, yet, when congress chooses to act, it is not concluded by 
 anything that the states, or that individuals by its authority or ac- 
 quiescence, have done, from assuming entire control of the matter, 
 and abating any erections that may have been made, and preventing 
 any others from being made, except in conformity with such regula- 
 tions as it may impose. It is for this reason, namely, the ultimate 
 (though yet unexerted) power of congress over the whole subject- 
 matter, that the consent of congress is so frequently asked in the erec- 
 tion of bridges over navigable streams. It might itself give original
 
 324 LUXTON V. NORTH RIVER BRIDGE CO. 65 
 
 authority for the erection of such bridges, when called for by the de- 
 mands of interstate commerce by land; but in many, perhaps the 
 majority, of cases its assent only is asked, and the primary authority is 
 sought at the hands of the state." 125 U. S. 12, 13. 
 
 In California v. Pacific Railroad, 127 U. S. I, it was directly ad- 
 judged that congress has authority, in the exercise of its powers, to 
 regulate commerce among the several states, to authorize corporations 
 to construct railroads across the states as well as the territories of the 
 United States; and Mr. Justice Bradley, again speaking for the court, 
 and referring to the acts of congress establishing corporations to build 
 railroads across the continent, said: "It can not at the present day 
 be doubted that congress under the power to regulate commerce 
 among the several states, as well as to provide for postal accommoda- 
 tions and military exigencies, had authority to pass these laws. The 
 power to construct or to authorize individuals or corporations to 
 construct national highways and bridges from state to state is essen- 
 tial to the complete control and regulation of interstate commerce. 
 Without authority in congress to establish and maintain such high- 
 ways and bridges, it would be without authority to regulate one of 
 the most important adjuncts of commerce. This power in former 
 times was exerted to a very limited extent, the Cumberland or Na- 
 tional road being the most notable instance. Its exertion was but 
 little called for, as commerce was then mostly conducted by water, 
 and many of our statesmen entertained doubts as to the existence of 
 the power to establish ways of communication by land. But since, 
 in consequence of the expansion of the country, the multiplication of 
 its products and the invention of railroads and locomotion by steam, 
 land transportation has so vastly increased a sounder consideration of 
 the subject has prevailed and led to the conclusion that congress has 
 plenary power over the whole subject. Of course, the authority of 
 congress over the territories of the Unites States, and its power to 
 grant franchises exercisible therein, are, and ever have been, un- 
 doubted. But the wider power was very freely exercised, and much 
 to the general satisfaction in the creation of the vast system of rail- 
 roads connecting the east with the Pacific, traversing states as well as 
 territories, and employing the agency of state as well as Federal cor- 
 porations." 127 U. S. 39, 40. 
 
 The act of congress now in question declares the construction of 
 the North River Bridge between the states of New York and New 
 Jersey to be "in order to facilitate interstate commerce," and it makes 
 due provision for the condemnation of lands for the construction and 
 maintenance of the bridge and its approaches, and for just compensa- 
 tion to the owners, which has been accordingly awarded to the 
 plaintiff in error. 
 
 In the light of the foregoing principles and authorities, the objec- 
 tion made to the constitutionality of this act can not be sustained. 
 
 Judgment affirmed. 
 
 Note. National corporations. See generally 16 Am. & Eng. Ency. 216; 
 24 Am. & Eng. R. Gas. 21; 21 Am. L. R. 258; Angell & Ames, 72, 73;
 
 65 LIMITS ON POWER TO CREATE. 325 
 
 Beach, 3-6; Clark, p. 39, et seq. ; Cook, 1001 ; Elliott, 28; Field, 13; 1 
 Monuvetz, 9; Taylor, 467; 1 Thompson, 665-685. 
 
 1. In the District of Columbia: Chapter 15 of the Compiled Statutes of the 
 District of Columbia relates to the formation of corporations within the Dis- 
 trict. The following are provided for: Institutions of learning, religious so- 
 cieties, benevolent, educational, etc., societies, manufacturing, agricultural, 
 mining, mechanical, insurance, transportation, market, savings banks, ceme- 
 tery associations, boards of trade, trust companies, insurance and vestries. 
 This is under the constitutional provision giving congress exclusive legisla- 
 tive authority within the District. Art. i, 8, cl. 17. 
 
 Such corporations may act. in the states by their consent and that of con- 
 gress. Hadley v. Freedman's Trust Co., 2 Tenn. Ch. 122; Williams v. Cres- 
 woll, 51 Miss. 817. Congress has authorized a District insurance company to 
 do business in the states, with their consent, 15 St. at L. 184; also authorizes 
 National Trades' Unions with power to establish branches in the states, 1 
 Supp. R. S. 498 (1886). The Freedman's Saving & Trust Co. was authorized 
 by 13 St. at L. 510; National Asylum for Disabled Volunteers, 14 St. at L. 10; 
 Centennial Board of Finance, 17 St. at L. 203. Societies for benevolent pur- 
 poses, R. S. 546; 1 Supp. R. S. 425. 
 
 2. In the Territories: Congress has .general legislative authority over the 
 territories, and can, therefore, create corporations within the territories, or 
 authorize the territorial legislatures to create corporations. It has provided 
 for the territorial legislatures to do so by a general act. U. S. Const., art. iv, 
 
 1 3, cl. 2; Rev. Stat,, 1889, infra, p. 332. 
 
 lally all ' 
 in the Luxton case. The U. S. bank was chartered in 1791, by 1 St. at L. 
 
 3. In the States: Substantially all the authorities upon this point are cited 
 
 191, and in 1816, 3 St. at L. 266; the present national banking system was 
 established in 1863 by 12 St. at L. 665; the Union Pacific Ry. in 1862, 12 St. 
 at L. 489; Northern Pacific Ry., 1864, 13 St. at L. 365; Atlantic and Pacific 
 Ry., 1866, 14 St. at L. 292; Texas and Pacific Ry. in 1871, 16 St. at L. 573, and 
 1872, 17 St. at L. 59. Sections 5263-5269, Revised Statutes, authorize state in- 
 corporated telegraph companies to construct their lines on all post roads. See 
 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, infra, p. 326. 
 
 Such a corporation is not a foreign corporation within any state. 1881, 
 Commonwealth v. Texas, etc., R., 98 Pa. St. 90; 1882, Market National Bank 
 v. Pacific, etc., Bank, 64 How. Pr. (N. Y.) 1 ; 1879, Eby v. Northern Pac. Ry. 
 Co., 36 Leg. Int. 164, s. c. 6 Weekly N. C. 385. 
 
 Such corporation may exercise the power of eminent domain within the 
 states. 1875, Kohl v. United States, 91 U. S. 367; 1890, Searl v. Dist. No. 2, 
 133 U. S. 553; 1890, Cherokee Nation v. R. Co., 135 U. S. 641 ; 1890, Ryan v. 
 TJ. S., 136 U. S. 69; 1892, Bellaire v. R.,Co., 146 U. S. 117. 
 
 Such corporation is exempt from state taxation or control, so far as the 
 same might impair its efficiency as an instrument of the national government. 
 1869, National Bank v. Commw., 9 Wall. (U. S.) 353; 1869, Thomson v. Pacific 
 R. R., 9 Wall. (U. S.) 579; 1873, Railroad Co. y. Peniston, 18 Wall. (U. S.) 5. 
 But state taxation of national banks is provided for by U. S. Rev. Stats., 
 5219. 
 
 A national corporation has a right to sue and be sued in the United States 
 courts. 1897, Texas, etc., R. v. Cody, 166 U. S. 606; infra, p. 1098. 
 
 4. To operate outside of the territory of the United States: In 1889 congress 
 chartered the Maritime Canal Company of Nicaraugua (25 St. at L. 673). The 
 company also has a charter from the state of Vermont. Beach Corp., 6, n. 
 2, p. 10. 
 
 5. Dissolution: The constitutional provision (art. i, 10, cl. 1) forbidding 
 the states from passing any law impairing the obligation of contracts, does 
 not apply to congress. Hence, congress may repeal a corporate charter 
 created by itself or the territorial legislatures, prior to the territory becoming 
 a state. 1890, Corporation of Church of Jesus Christ, etc., v. United States, 
 136 U. S. 1, infra, p. 906. But see 1878, United States v. Union Pacific Rail- 
 road Co., 98 U. S. 569, and 1878, The Sinking Fund Cases, 99 U. S. 700. But 
 in the early bank charters, the creating congress pledged the faith of the
 
 326 PENSACOLA TEL. CO. V. WESTERN UNION TEL. CO. 66 
 
 government not to repeal the charter before the charter period elapsed. See 1 
 St. at L. 191 ; 3 St. at L. 266. 
 
 Sec. 66. (2) On state legislatures. 
 
 PENSACOLA TELEGRAPH COMPANY v. WESTERN UNION TELE- 
 GRAPH COMPANY. 1 
 
 1877. IN THE SUPREME COURT OF THE UNITED STATES. 96 U. S. 
 
 Reports 1-24. 
 
 Appealed from the circuit court of the United States for the north- 
 ern district of Florida. 
 
 In 1859 an association of persons, known as the Pensacola Tele- 
 graph Company, erected a line of electric telegraph upon the right of 
 way of the Alabama and Florida Railroad from Pensacola, in Flor- 
 ida, to Pollard, in Alabama, about six miles north of the Florida line. 
 The company operated the whole line until 1862, when, upon the 
 evacuation of Pensacola by the confederate forces, the wire was taken 
 down for twenty-three miles, and Cooper's Station made the southern 
 terminus. In 1864 the whole was abandoned, as the section of the 
 country in which it was situated had fallen into the possession of the 
 United States troops. 
 
 On the ist of December, 1865, the stockholders met, and it appear- 
 ing that the assets of the company were insufficient to rebuild the line, 
 a new association was formed for that purpose, with the old name, 
 and new stock to the amount of $5,000 subscribed. A resolution was 
 adopted by the new company to purchase the property of the old, at a 
 valuation put upon it in a report submitted to the meeting, and a 
 new board of directors was elected. 
 
 A meeting of the directors was held on the 2d of January, 1866, at 
 which the president reported the completion of the line to Pensacola, 
 and a resolution was adopted, authorizing the purchase of wire for its 
 extension to the navy yard. The attorneys of the company were also 
 instructed to prepare a draft for a charter, to be presented to the legis- 
 lature for enactment. 
 
 On the 24th day of July, 1866, congress passed the following act: 
 
 "An act to aid in the construction of telegraph lines, and to secure 
 to the government the use of the same for postal, military and other 
 purposes. 
 
 "Be it enacted by the senate and the house of representatives of the 
 United States of America in congress assembled, That any telegraph 
 company now organized, or which may hereafter be organized, under 
 the laws of any state in this Union, shall have the right to construct, 
 maintain and operate lines of telegraph through and over any portion 
 of the public domain of the United States over and along any of the 
 military or post roads of the United States which have been or may be 
 hereafter declared such by act of congress, and o\;er, under or across 
 the navigable streams or waters of the United States : Provided, That 
 such lines of telegraph shall be so constructed and maintained as not 
 1 Arguments and dissenting opinions of Justice Field and Hunt omitted.
 
 66 LIMITS ON POWER TO CREATE. 327 
 
 to obstruct the navigation of such streams and waters, 01 interfere 
 with the ordinary travel on such military or post roads. And any of 
 said companies shall have the right to take and use from such public 
 iands the necessary stone, timber and other materials for its posts, 
 piers, stations and other needful uses in the construction, maintenance 
 and operation of said lines of telegraph, and may pre-empt and use 
 such portion of the unoccupied public lands subject to pre-emption 
 through which its said lines of telegraph may be located as may be 
 necessary for its stations, not exceeding forty acres for each station ; 
 but such stations shall not be within fifteen miles of each other. 
 
 "Sec. 2. And be it further enacted, That telegraphic communica- 
 tions between the several departments of the government of the United 
 States and their officers and agents shall, in their transmission over 
 the lines of any of said companies, have priority over all other busi- 
 ness, and shall be sent at rates to be annually fixed by the postmaster- 
 general. 
 
 "Sec. 3. And be it further enacted, That the rights and privileges 
 hereby granted shall not be transferred by any company acting under 
 this act to any other corporation, association or person : Provided, 
 however, That the United States may at any time after the expiration 
 of five years from the date of the passage of this act, for postal, mil- 
 itary or other purposes, purchase all the telegraph lines, property 
 and effects of any or all of said companies at an appraised value, to be 
 ascertained by five competent disinterested persons, two of whom shall 
 be selected by the postmaster-general of the United States, two by 
 the company interested, and one by the four so previously selected. 
 
 "Sec. 4. And be it further enacted, That, before any telegraph com- 
 pany shall exercise any of the powers or privileges conferred by this 
 act, such company shall file their written acceptance with the post- 
 master-general of the restrictions and obligation required by this act." 
 14 Stat. 221 ; Rev. Stat., 5263, et seq. 
 
 All railroads in the United States are by law post roads. Rev. 
 Stat., '3964; 17 Stat. 308, 201. 
 
 On the nth of December, 1866, the legislature of Florida passed 
 an act incorporating the Pensacola Telegraph Company, and grant- 
 ing it "the sole and exclusive privilege and right of establishing and 
 maintaining lines of electric telegraph in the counties of Escambia 
 and Santa Rosa, either from different points within said counties, or 
 connecting with lines coming into said counties, or either of them, 
 from any point in this (Florida) or any other state." The capital 
 stock was fixed at $5,000, with privilege of increasing it to such an 
 amount as might be considered necessary. The company was author- 
 ized to locate and construct its lines within the counties named, 
 "along and upon any public road or highway or across any water, or 
 upon any railroad or private property for which permission shall first 
 have been obtained from the proprietors thereof." In this act all the 
 stockholders of the new association which had rebuilt the line were 
 named as corporators. No meeting of the directors was held until 
 January 2, 1868, when the secretary was instructed to notify the
 
 328 PENSACOLA TEL. CO. V. WESTERN UNION TEL. CO. 66 
 
 stockholders "that the charter drawn up by Messrs. Campbell & Perry, 
 attorneys, as per order of board, January 2, 1866," had been passed. 
 
 On the 5th of June, 1867, the directors of the defendant, the West- 
 ern Union Telegraph Company, a New York corporation, passed 
 the following resolution, which was duly filed with the postmaster- 
 general : 
 
 " Resolved, That this company does hereby accept the provisions 
 of the act of congress, entitled 'An act to aid in the construction of 
 telegraph lines, and to secure to the government the use of the same 
 for postal, military and other purposes,' approved July 24, 1866, with 
 all the powers, privileges, restrictions, and obligations conferred and 
 required thereby ; and that the secretary be, and he is hereby author- 
 ized and directed to file this resolution with the postmaster-general of 
 the United States, duly attested by the signature of the acting presi- 
 dent of the company and the seal of the corporation, in compliance 
 with the fourth section of said act of congress." 
 
 In 1872 the property of the Alabama and Florida Railroad Com- 
 pany, including its right of way and railroad, was transferred to the 
 Pensacola and Louisville Railroad Company; and on the i4th of Feb- 
 ruary, 1873, the legislature of Florida passed an act, which, as 
 amended February 18, 1874, authorized the last named company "to 
 construct, maintain and operate a telegraph line from the Bay -of Pen- 
 sacola along the line of the said (its) road as now located, or as it 
 may hereafter be located, and along connecting roads in said county 
 to the boundary lines of the state of Alabama, and the said lines may 
 connect and be consolidated with other telegraph companies within or 
 without the state, and said company may pledge, mortgage, lease, sell, 
 assign and convey the property appertaining to the said telegraph 
 lines, and the rights, privileges and franchises conferred by this act, 
 with full power in such assignees to construct, own and operate such 
 telegraph lines, and enjoy all the privileges, rights and franchises 
 conferred by this act, but in such case the said railroad company 
 shall be responsible for the proper performance of the duties and obli- 
 gations imposed by this act." 
 
 This was within the territory embraced by the exclusive grant to 
 the Pensacola Telegraph Company. 
 
 On the 24th of June, 1874, the Pensacola and Louisville Railroad 
 Company granted to the Western Union Telegraph Company the 
 right to erect a telegraph line upon its right of way, and also the 
 rights and privileges conferred by the acts of February, 1873 and 1874. 
 The Western Union Company immediately commenced the erection 
 of the line, but before its completion, to wit, July 27, 1874, the bill 
 in this case was filed by the Pensacola Telegraph Company to enjoin 
 the work and the use of the line, on account of the alleged exclusive 
 right of that company under its charter. Upon the hearing, a decree 
 was passed dismissing the bill, and this appeal was taken. 
 
 Mr. Chief Justice WAITE delivered the opinion of the court. 
 
 Congress has power "to regulate commerce with foreign nations 
 and among the several states" (Const., art. i, 8, par. 3), and "to
 
 66 LIMITS ON POWER TO CREATE. 329 
 
 establish post-offices and post reads." (Const. , art. i, 8, par. 7.) The 
 constitution of the United States and the laws made in pursuance 
 thereof are the supreme law of the land. Art. vi, par. 2. A law of 
 congress made in pursuance of the constitution suspends or overrides 
 all state statutes with which it is in conflict. 
 
 Since the case of Gibbons v. Ogden (9 Wheat, i), it has never 
 been doubted that commercial intercourse is an element of commerce 
 which comes within the regulating power of congress. Post-offices 
 and post roads are established to facilitate the transmission of intel- 
 ligence. Both commerce and the postal service are placed within the 
 power of congress, because, being national in their operation, they 
 should be under the protecting care of the national government. 
 
 The powers thus granted are not confined to the instrumentalities 
 of commerce, or the postal service known or in use when the consti- 
 tution was adopted, but they keep pace with the progress of the coun- 
 try, and adapt themselves to the new developments of time and 
 circumstances. They extend from the horse with its rider to the stage 
 coach, from the sailing vessel to the steamboat, from the coach and 
 the steamboat to the railroad, and from the railroad to the telegraph, 
 as these new agencies are successively brought into use to meet the 
 demands of increasing population and wealth. They were intended 
 for the government of the business to which they relate, at all times 
 and under all circumstances. As they were intrusted to the general 
 government for the good of the nation, it is not only the right, but 
 the duty, of congress to see to it that intercourse among the states and 
 the transmission of intelligence are not obstructed or unnecessarily 
 encumbered by state legislation. 
 
 The electric telegraph marks an epoch in the progress of time. In 
 a little more than a quarter of a century it has changed the habits of 
 business, and become one of the necessities of commerce. It is indis- 
 pensable as a means of inter-communication, but especially is it so in 
 commercial transactions. The statistics of the business before the re- 
 cent reduction in rates show that more 'than eighty per cent, of all the 
 messages sent by telegraph related to commerce. Goods are sold and 
 money paid upon telegraphic orders. Contracts are made by tele- 
 graphic correspondence, cargoes secured, and the movements of ships 
 directed. The telegraphic announcement of the markets abroad reg- 
 ulates prices at home, and a prudent merchant rarely enters upon an 
 important transaction without using the telegraph freely to secure in- 
 formation. 
 
 It is not only important to the people, but to the government. By 
 means of it the heads of the departments in Washington are kept in 
 close communication with all their various agencies at home and 
 abroad, and can know at almost any hour, by inquiry, what is trans- 
 piring anywhere that affects the interests they have in charge. Under 
 such circumstances, it can not for a moment be doubted that this pow- 
 erful agency of commerce and inter-communication comes within the 
 con troll ing power of congress, certainly as against hostile state legisla- 
 tion. In fact, from the beginning, it seems to have been assumed
 
 330 PENSACOLA TEL. CO. V. WESTERN UNION TEL. CO. 66 
 
 that congress might aid in developing the system, for the first tele- 
 graph line of any considerable extent ever erected was built between 
 Washington and Baltimore, only a little more than thirty years ago, 
 with money appropriated by congress for that purpose (5 Stat. 618), 
 . and large donations of land and money have since been made to aid 
 in t^ie construction of other lines. (12 Stat. 489, 772 ; 13 Stat. 365 ; 14 
 Stat. 292.) It is not necessary now to inquire whether congress may 
 assume the telegraph as part of the postal service, and exclude all oth- 
 ers from its use. The present case is satisfied, if we find that con- 
 gress has power, by appropriate legislation, to prevent the states from 
 placing obstructions in the way of its usefulness. 
 
 The government of the United States within the scope of its pow- 
 ers operates upon every foot of territory under its jurisdiction. It 
 legislates for the whole nation, and is not embarrassed by state lines. 
 Its peculiar duty is to protect one part of the country from encroach- 
 ments by another upon the national rights which belong to all. 
 
 The state of Florida has attempted to confer upon a single corpora- 
 tion the exclusive right of transmitting intelligence b}^ telegraph over 
 a certain portion of its territory. This embraces the two western 
 most counties of the state, and extends from Alabama to the Gulf. 
 No telegraph line can cross the state from east to west, or from north 
 to south, within these counties, except it passes over this territory. 
 Within it is situated an important seaport at which business centers, 
 and with which those engaged in commercial pursuits have occasion 
 more or less to communicate. The United States have there also the 
 necessary machinery of the national government. They have a navy- 
 yard, forts, custom-houses, courts, post-offices, and the appropriate 
 officers for the enforcement of the laws. The legislation of Florida, 
 if sustained, excludes all commercial intercourse by telegraph between 
 the citizens of the other states and those residing upon this territory, 
 except by the employment of this corporation. The United States 
 can not communicate with their own officers by telegraph except in 
 the same way. The state, therefore, clearly has attempted to regulate 
 commercial intercourse between its citizens and those of other states, 
 and to control the transmission of all telegraphic correspondence 
 within its own jurisdiction. 
 
 It is unnecessary to decide how far this might have been done if 
 congress had not acted upon the same subject, for it has acted. The 
 statute of July 24, 1866, in effect, amounts to a prohibition of all state 
 monopolies in this particular. It substantially declares, in the interest 
 of commerce and the convenient transmission of intelligence from 
 place to place by the government of the United States and its citi- 
 zens, that the erection of telegraph lines shall, so far as state inter- 
 ference is concerned, be free to all who will submit to the conditions 
 imposed, by congress, and that corporations organized under the laws 
 of one state for constructing and operating telegraph lines shall not be 
 excluded by another from prosecuting their business within its juris- 
 diction, if they accept the terms proposed by the national government 
 for this national privilege. To this extent, certainly, the statute is a
 
 66 LIMITS ON POWER TO CREATE. 331 
 
 legitimate regulation of commercial intercourse among the states, and 
 is appropriate legislation to carry into execution the powers of con- 
 gress over the postal service. It gives no foreign corporation the 
 right to enter upon private property without the consent of the owner 
 and erect the necessary structures for its business; but it does pro- 
 vide that, whenever the consent of the owner is obtained, no state 
 legislation shall prevent the occupation of post roads for telegraph 
 purposes by such corporations as are willing to avail themselves of its 
 privileges. 
 
 It is insisted, however, that the statute extends only to such military 
 and post roads as are upon the public domain; but this, we think, is 
 not so. The language is, "Through and over any portion of the pub- 
 lic domain of the United States, over and along any of the military 
 or post roads of the United States which have been or may hereafter be 
 declared such by act of congress, and over, under or across the navi- 
 gable streams or waters of the United States." There is nothing to 
 indicate an intention of limiting the effect of the words employed, 
 and they are, therefore, to be given their natural and ordinary signifi- 
 cation. Read in this way, the grant evidently extends to the public 
 domain, the military and post roads, and the navigable waters of the 
 United States. These are all within the dominion of the national gov- 
 ernment to the extent of the national powers, and are, therefore, sub- 
 ject to the legitimate congressional regulation. No question arises as 
 to the authority of congress to provide for the appropriation of pri- 
 vate property to the uses of the telegraph, for no such attempt has 
 been made. The use of public property alone is granted. If pri- 
 vate property is required, it must, so far as the present legislation is 
 concerned, be obtained by private arrangement with its owner. No 
 compulsory proceedings are authorized. State sovereignty under the 
 constitution is not interfered with. Only national privileges are 
 granted. 
 
 The state law in question, so far as it confers exclusive rights upon 
 the Pensacola Company, is certainly in conflict with this legislation of 
 congress. To that extent it is, therefore, inoperative as against a 
 corporation of another state entitled to the privileges of the act of 
 congress. Such being the case, the charter of the Pensacola Com- 
 pany does not exclude the Western Union Company from the occu- 
 pancy of the right of way of the Pensacola and Louisville Railroad 
 Company under the arrangement made for that purpose. 
 
 We are aware that, in Paul v. Virginia (8 Wall. 168), this court 
 decided that a state might exclude a corporation of another state from 
 its jurisdiction, and that corporations are not within the clause of the 
 constitution, which declares that "the citizens of each state shall be 
 entitled to all privileges and immunities of citizens of the several 
 states." Article 4, section 2. That was not, however, the case of a 
 corporation engaged in interstate commerce ; and enough was said 
 by the court to show that, if it had been, very different questions 
 would have been presented. The language of the opinion is, "It is 
 undoubtedly true, as stated by counsel, that the power conferred upon
 
 332 REVISED STATUTES OF UNITED STATES, 1889. 6/ 
 
 congress to regulate commerce includes as well commerce carried on 
 by corporations as commerce carried on by individuals. * * * 
 This state of facts forbids the supposition that it was intended in the 
 grant of power to congress to exclude from its control the commerce 
 of corporations. The language of the grant makes no reference to 
 the instrumentalities by which commerce may be carried on ; it is 
 general, and includes alike commerce by individuals, partnerships, 
 associations and corporations. * * * The defect of the argument 
 lies in the character of their (insurance companies) business. Issuing 
 a policy of insurance is not a transaction of commerce. * * * 
 Such contracts (policies of insurance) are not interstate transactions, 
 though the parties are domiciled in different states." 
 
 The questions thus suggested need not be considered now because 
 no prohibitory legislation is relied upon, except that which, as has 
 already been seen, is inoperative. Upon principles of comity, the 
 corporations of one state are permitted to do business in another, un- 
 less it conflicts with the law or unjustly interferes with the rights of the 
 citizens of the state into which they come. Under such circumstances, 
 no citizen of a state can enjoin a foreign corporation from pursuing 
 its business. Until the state acts in its sovereign capacity, individual 
 citizens can not complain. The state must determine for itself when 
 the public good requires that its implied assent to the admission shall 
 be withdrawn. Here, so far from withdrawing its assent, the state by 
 its legislation of 1874, in effect, invited foreign telegraph corporations 
 to come in. Whether that legislation, in the absence of congressional 
 action, would have been sufficient to authorize a foreign corporation 
 to construct and operate a line within the two counties named, we 
 need not decide ; but we are clearly of the opinion that with such ac- 
 tion and a right of way secured by private arrangement with the 
 owner of the land, this defendant corporation can not be excluded by 
 the present complainant. 
 
 Decree affirmed. 
 
 Sec. 67. (3) On territorial legislatures. 
 
 The Revised Statutes of the United States provide: "The legis- 
 lative assemblies of the several territories shall not grant private char- 
 ters or special privileges, but they may, by general incorporation acts, 
 permit persons to associate themselves together as bodies corporate 
 for mining, manufacturing and other industrial pursuits, and for con- 
 ducting the business of insurance, banks of discount and deposit (but 
 not of issue), loan, trust and guarantee associations, and for the con- 
 struction or operation of railroads, wagon roads, irrigating ditches, 
 and the colonization and improvement of lands in connection there- 
 with, or for colleges, seminaries, churches, libraries or any other 
 benevolent, charitable or scientific association." 1 
 
 1 Revised Statutes of the United States, 1873-74 ( 1889), as amended July 
 30, 1886, ch. 818, 5 (24 St. 170).
 
 68 LIMITS ON POWER TO CREATE. 333 
 
 Statute June 8, 1878, ch. 168 (20 St. 101) provided that the fore- 
 going section should not be so construed as to prevent the territorial 
 legislatures from creating municipal corporations either by a general 
 or special act, subject to amendment or repeal at any time. 
 
 Note. Territorial charter is binding on the state legislature after the state 
 is organized. 1822, State v. N. O. N. Co., 11 Martin (La.) 309; 1831, Will- 
 iams v. Bank of Michigan, 7 Wend. (N.Y.) 539. But see, 1851, Myers v. Man- 
 hattan Bank, 20 Ohio 283. 
 
 () In the State Constitutions. 
 Sec. 68. (i) General and special laws, what are. 
 
 "The legislature shall pass no special act creating corporations or 
 conferring corporate powers, but they shall provide by general law 
 for the creation and formation of corporations, but all such laws shall 
 be subject to amendment, alteration or repeal at the will of the legis- 
 lature." 
 
 THE STATE, Ex REL. JACOB J. VAN RIPER ET AL., v. CHARLES H. 
 
 PARSONS ET AL. 1 
 
 1878. IN THE SUPREME COURT OF JUDICATURE OF NEW JERSEY. 
 40 N. J. L. Rep. i-n. 
 
 On demurrer. 
 
 By the charter of Jersey City, passed in 1871, provision was made 
 for the appointment by the senate and general assembly, in joint 
 meeting, of a fire board, and certain other municipal boards. 
 
 On March 6, 1877 (Laws 1877, p. 54), an act was passed entitled 
 "An act concerning commissioners to regulate municipal affairs," 
 which provided for abolishing all laws in reference to legislative com- 
 missioners, and terminating the offices of the legislative commission- 
 ers then in existence, and for substituting therefor new boards, to be 
 elected by the people. 
 
 Under this latter act an election was held in Jersey City, and the 
 defendants were elected members of the fire board in lieu of the legis- 
 lative commissioners. There was no question made with respect to 
 the fairness and formality of this election. 
 
 The present proceeding is an information in the name of the attor- 
 ney-general, in the nature of a quo ivarranto, charging that the de- 
 fendants usurp the office to which they were thus elected. 
 
 Argued at November term, 1877, before Beasley, chief justice, and 
 Justice Depue, Van Syckel and Knapp. 
 
 The opinion of the court was delivered by BEASLEY, chief justice. 
 
 1 Part of opinion relating to another point omitted.
 
 334 STATE V. PARSONS. 68 
 
 The purpose of this proceeding is to test the constitutionality of the 
 act of the legislature passed on the 6th day of March, in the year of 
 1877, entitled "An act concerning commissioners to regulate munici- 
 pal affairs." 
 
 The law thus brought under our cognizance is composed of two 
 sections, the first of which declares "that such parts of all public, spe- 
 cial and local laws as provide for the appointment of commissions or 
 commissioners, by the senate and general assembly of the legislature, 
 in joint meeting, to regulate municipal affairs in any city in this state, 
 be and the same are hereby repealed," and the second section pro- 
 vides "that in all cases where the above repealing section shall oper- 
 ate in any city in this state, there shall be substituted, in lieu of each 
 of the existing boards of said commissions or commissioners, to exer- 
 cise all the powers heretofore conferred upon such commissions or 
 commissioners, a board to consist of six persons, namely, one shall be 
 chosen by the electors in each aldermanic district in said city, who 
 shall be a qualified voter of said city." The rest of this latter section 
 consists of regulations touching the mode of canvassing the votes at 
 the election thus authorized, or designating the terms of office and the 
 salaries of the officers thus to be chosen. 
 
 Against this law thus summarized, the principal exception that has 
 been urged is, that it is, in substance and effect, special and local, and 
 consequently is in conflict with one of the recent amendments of the 
 constitution of the state. The provision of the primary law thus in- 
 voked in clause 2, section 7 of article iv, and which, so far as relates 
 to the present subject, is in these words, viz., "The legislature shall 
 not pass private, local or special laws in any of the following enumer- 
 ated cases, that is to say: * * * Regulating the internal affairs 
 of towns and counties ; appointing local officers or commissions to reg- 
 ulate municipal affairs," and, again, subsequently, in the same clause, 
 the words are, "the legislature shall pass no special act conferring cor- 
 porate powers, but they shall pass general laws, under which corpo- 
 rations may be organized and corporate powers of every nature ob- 
 tained, subject, nevertheless, to repeal or alteration at the will of the 
 legislature. * * * " 
 
 First, then, is this statute, obviously and upon judicial view of its 
 contents, a local or special law? 
 
 In point of form it is manifest that this act does not belong to such 
 a category. It imports generality of provision in all its parts ; its title 
 is general, embracing all commissioners appointed by the legislature 
 to regulate municipal affairs, so, in its body, it repeals such parts of 
 all public, special or local laws as provide for the appointment of 
 such commissioners, and substitutes for such officers others, to be se- 
 lected by the people. Upon the face of this law, therefore, the re- 
 pealer is general, and the substitution of other agencies is equally so. 
 
 But it is said that, although such is the frame and aspect of this 
 statute, still it must be regarded as local and special, as of necessity 
 it can be applicable to but a few places of the state, inasmuch as it is 
 well known that but few localities in the state have been subjected to
 
 68 LIMITS ON POWER TO CREATE. 335 
 
 the rule of legislative commissions. This contention assumes the 
 truth of the hypothesis that a law that embraces but a few localities, 
 or a small number of objects, is not a general, but a special or local 
 law. But I think there is a mistake in this. The term "general 
 law" does not import universality in the subjects or operation of such 
 law. The constitutional clause in question calls for the enactment^ 
 in this particular field of legislation, of general acts, but such so- 
 called general acts are, for the most part, special and local in their 
 effect and applicability, provided we put the widest possible signifi- 
 cation on the terms special and local. But these two latter terms do 
 not carry with them such a compass of meaning as this, as they stand 
 in the clause of the constitution now under consideration. If such 
 were their scope, they would render almost every attempt at useful 
 legislation abortive. A law settling the methods by which all rail- 
 roads should become incorporated would be special in the sense that 
 it would be confined in its operation to but a single kind of corpo- 
 ration, and so a law would be local, by this same test, that should 
 provide for the organization, under ojie system, of all the municipal 
 governments in the state, as such a law would manifestly have a 
 restricted effect with respect to locality. But who, conversant with 
 the usage touching these terms, would venture the assertion that such 
 statutes as these would not be general laws? All legislation is based 
 of necessity on a classification of its subjects, and when such classifi- 
 cation is fairly made, and the legislation founded upon it is appropri- 
 ate to such classification, such legislation is as legitimate now as it 
 would have been prior to the recent amendments to the constitution. 
 My theory is, that if a set of objects be fairly classified, a law embrac- 
 ing them -will be a general one, and in all respects unobjectionable; 
 but undoubtedly if the classification be illusive, being contrived with 
 a view of escaping the constitutional restriction, it can lend no sup- 
 port to the legislation connected with it. As, for example, a statute 
 declaring that all cities containing a population over a certain number 
 shall have a given number of voting places, and all cities containing a 
 lesser number shall have a prescribed lesser number, would be, to my 
 mind, obviously legal, because the classes of persons thus distinguished 
 from each other would naturally stand upon a different footing with 
 respect to the particular subject to which such legislation related ; 
 but if a law, based on the same classifications, should provide that the 
 former of such classes should have a certain system of laying out 
 streets, and the latter a different system, such a classification would be 
 clearly illusive, inasmuch as the law thus enacted would bear no affin- 
 ity to the qualities or attributes forming the basis of classification. In- 
 terdicted local and special laws are all those that rest on a false or 
 deficient classification; their vice is that they do not embrace all the 
 class to which they are naturally related; they create preference and 
 establish inequalities ; they apply to persons, things or places pos- 
 sessed of certain qualities or situations, and exclude from their 
 effect other persons, things or places which are not dissimilar in these
 
 336 STATE V. PARSONS. 68 
 
 respects. The present law therefore is not objectionable on the former 
 of the grounds assigned that in its operation it must necessarily be 
 confined to certain localities. As it does not exclude from its sway or 
 effect any place or subject belonging to the class to which it relates, it 
 is, upon its face, a general, and not a local or special law, within the 
 clause of the constitution now under consideration. 
 
 The second objection above noted to the statute in question is that, 
 in point of fact, it applies to but a single place, that is, to Jersey 
 City, and therefore, being thus local and special, it is invalid for the 
 want of a notice of an intention to apply for its passage. 
 
 In laboring this point in their argument the counsel of the relators. 
 seemed to incline to the conclusion that a special or local law could 
 in no case be passed, the purpose of which was to regulate the in- 
 ternal affairs of any municipality. But I can not agree to this 
 view. According to my reading of the constitutional clause in ques- 
 tion, its purpose was not to limit legislation, but to forbid only the 
 doing, by special or local laws, those things that can be done by gen- 
 eral laws. The provision relates to the methods and not to the sub- 
 stance of legislation, and the substitution of general laws in the stead 
 of those that are special or local, necessarily indicates the limits and 
 extent of the prohibition, for as the mandate is to do, by general leg- 
 islation, that which is interdicted to special or local legislation, it 
 seems unavoidably to follow that it is only those things that can be 
 accomplished by the former method that are forbidden to the latter 
 method. The intent here, I think, is perfectly plain, and was to require, 
 within this department, all things that could be effected by general 
 statutes, to be effected in that way, but there was no intent to abro- 
 gate the legislative power outside of this field. The opposite inter- 
 pretation would be full of impracticabilities, not to say absurdities. 
 By its prevalence, the peculiar imperfections inherent in the frame of 
 any existing public corporation would at once be made unalterable 
 and irremediable ; the boundary of every city, township and county 
 would become insusceptible of change, and the constitution of such 
 bodies, with respect to matters unique, and therefore not to be reached 
 by general laws, would be beyond the hand of improvement or modi- 
 fication. Indeed, the present case, if we assume that this statute 
 applies to Jersey City alone, and is on that account to be regarded as 
 special and local and consequently forbidden, would stand as a con- 
 spicuous example of the evils that would result, for although in this 
 same constitutional provision, the ruling of particular places by leg- 
 islative commissions is denounced in the form of a prohibitory clause, 
 the success of the view set up would be to establish such a mode of 
 government, so long as our organic law should retain its present 
 characteristics in the only place in which it is said at present to exist. 
 The correct interpretation of the passage, as already denoted, keeps 
 it clear of any such hurtful efficiency. 
 
 But it is further, and in the last place, urged that as this statute can 
 apply to Jersey City alone, it is, at all events, special and local 
 within the effect of that other provision of the constitution which ex-
 
 68 LIMITS ON POWER TO CREATE. 337 
 
 acts a notice of an intention to make application to the legislature for 
 bills of this character. Article iv, 7, pi. 9. But unfortunately, it is 
 in this information assumed without the necessary showing of facts, 
 that this law has this singleness of applicability. This pleading shows 
 that the defendants are clothed with office by force of a popular elec- 
 tion duly held in accordance with this legislative act, and as under 
 such circumstances the regularity and validity of such act will be 
 strongly implied, the facts necessary to vacate it must be set forth in 
 a direct and traversable form. This has not in this case been done. 
 An allegation that the statute is special and local as to Jersey City is 
 not the statement of a fact, but a naked inference as to the law. The 
 question, therefore, that was discussed, and which was founded on 
 the assumption that the present law was operative in but a single 
 place, can not be considered or disposed of upon the record as it is 
 now presented to our attention. 
 
 As the pleadings at present stand, the demurrer must be sustained. 
 
 Note. General and special laws. It has been said that a statute which 
 relates to persons or things as a class, is a general law ; while one which re- 
 lates to particular things or persons of a class, is special. 1875, Wheeler v. 
 Philadelphia, 77 Pa. St. 338; 1884, Ewing v. Hoblitzelle, 85 Mo. 64; 1892, 
 Smith v. McDermott, 93 Cal. 421. 
 
 So, a general law need not operate upon all classes of persons or things in 
 a state, but if it relates to or operates uniformly upon the whole of any 
 class it is general. 1890, Abeel v. Clark, 84 Cal. 226. 
 
 And "a law which applies only to an individual or to a number of individ- 
 uals, selected out of any class to which they belong, is a special law." 1880, 
 State v. California Min. Co., 15 Nev. 234. 
 
 "Public statutes are those which concern the government, or the public in- 
 terest, or all persons, or the whole of any class of persons." Robinson's 
 Elementary Law, 10. Citing, 1 Bl. Com. 86; 1 Kent Lect., 20; Bac. Abr. 
 Stat. F. L. ; Potter's Dwarris on Stat., 52; Sedgwick Stat. & Const. L., 30. 
 
 See, also, 1897, Wanser v. Hoos, 60 N. J. Law 482, 64 Am. St. Rep. 600; 
 1895, State v. Bargus, 53 Ohio St. 94. 53 Am. St. Rep. 628; 1892, State v. Sher- 
 iff, 48 Minn. 236, 31 Am. St. Rep. 650, n. 653; 1890, State v. Ellett, 47 Ohio 
 St. 90, 21 Am. St. Rep. 772, n. 780, et seq.; 1889, Town Council v. Pressley, 33 
 S. C. 56, 26 Am. St. Rep. 659; 1889, Allen v. Pioneer Press Co., 40 Minn. 117, 
 12 Am. St. Rep. 707, n. 716; 1888, People v. Squire, 107 N. Y. 593, 1 Am. St. 
 Rep. 893, n. 903. 
 
 See, further, on the general topic of creation under general and special 
 laws. 1 Abb. Digest 362, 4 Am. & Eng. Ency. 194, 1st ed. ; 7 Am. & Eng. Encyc. 
 639, et seq., 2d ed. ; Baldwin's Polit. Inst., ch. 6, Freedom of Incorporation"; 1 
 Beach, 9-12; Boone, 21-23; Clark, 19-20; Cook, 2,231-235; Elliott, 
 32-50; Field, 13; 2 Kent. Comm. *272, n., a, 6, c, 12th ed. ; 1 Morawetz, 
 26-30; Taylor, 451; 1 Thompson, 35-249. For statutory provisions, 
 see infra, Schemes of Organization, pp. 426, 560; American Corp. Legal Man- 
 ual, vol. 7, 1899, and previous volumes; 2 Stimson's Am. Statute Laws, ch. 1 ; 
 Annotated Corporation Laws of all the states, by Gumming, Gilbert & Wood- 
 ward, 1899; Appendix. 
 
 22 WIL. CASES.
 
 33 8 WALLACE V. LOOMIS. 69 
 
 Sec. 69. (2) Creating. 
 
 "The legislature shall pass no special or local act creating cor- 
 porations."- 
 
 WALLACE v. LOOMIS. 1 
 
 1877. IN THE SUPREME COURT OF THE UNITED STATES. 97 U. S. 
 
 Reports 146163. 
 
 Appeal from the circuit court of the United States for the south- 
 ern district of Alabama. 
 
 The facts are stated in the opinion of the court. 
 
 Mr. Justice BRADLEY delivered the opinion of the court. 
 This suit was instituted by a bill in equity filed May 30, 1872, by 
 Francis B. Loomis, John C. Stanton and Daniel N. Stanton, trustees 
 of what is known as the first mortgage of the Alabama and Chatta- 
 nooga Railroad Company, for the purpose of procuring a foreclosure 
 and sale of the mortgaged premises, being the railroad of said com- 
 pany, with its appurtenances and rolling-stock, situated in Tennessee, 
 Georgia, Alabama and Mississippi, but principally in Alabama. A 
 further object of the bill was to remove the cloud from the title caused 
 by the bankruptcy of said company, the seizure of its property by the 
 governor of Alabama, and the sale thereof by the assignees in bank- 
 ruptcy; also to protect and preserve the property from waste and 
 dilapidation until it could be applied to the satisfaction of the mort- 
 gage. * * * 
 
 In February, 1873, by leave of the court, Wallace was made a de- 
 fendant, and thereupon filed an answer and cross-bill, claiming to be 
 
 the holder and owner of five second mortgage bonds for $1,000 each. 
 
 * * * 
 
 The answer alleges that the Alabama and Chattanooga Railroad 
 Company was not a corporate body, and the decree affirms the contrary. 
 The cross-bill states at large the reason for the allegation of the answer. 
 It is, that the company had its alleged corporate existence alone in 
 virtue of a special act of the legislature of Alabama, passed the i7th 
 of September, 1868, which act upon its face was a violation of the 
 constitution of the state, which declares that "corporations may be 
 formed under general laws, but shall not be created by special act, 
 except for municipal purposes." The act referred to is set out in 
 full as an exhibit to the cross-bill. It authorizes the Wills Valley 
 Railroad Company (a pre-existing corporation) to purchase the rail- 
 road and franchises of the Northeast and Southwestern Alabama Rail- 
 road Company (another pre-existing corporation), and after doing so, 
 to change its own name to that of the Alabama and Chattanooga Rail- 
 road Company. 
 
 We are unable to see anything in this legislation repugnant to the 
 constitutional provision referred to. That provision can not surely be 
 construed to prohibit the legislature from changing the name of a cor- 
 
 1 Only so much of the case is given as relates to the single point.
 
 JO LIMITS ON POWER TO CREATE. 339 
 
 poration, or from giving it power to purchase additional property, 
 and this was all that it did in this case. No new corporate powers ol 
 franchises were created. * * * 
 Decree affirmed. 
 
 Sec. 70. Same. 
 
 GEORGE GREEN v. KNIFE FALLS BOOM CORPORATION. 
 
 1886. IN THE SUPREME COURT OF MINNESOTA. 35 Minnesota 
 
 Reports 155-162. 
 
 Plaintiff brought this action, in the district court for St. Louis 
 county, to recover possession of certain logs, alleged to be wrongfully 
 detained by the defendant. The answer admits the detention of the 
 logs by the defendant, and justifies such detention under claim of a 
 lien for boomage in accordance with the provisions of Sp. Laws 1872, 
 ch. 106. On plaintiff's motion judgment on the pleadings was directed 
 by STEARNS, J., on the ground that Sp. Laws 1872, ch. 106, is uncon- 
 stitutional. 
 
 Defendant appeals from the judgment. 
 
 The cause was argued at the April term, and, by order of the court, 
 was reargued at the October term, 1885. 
 
 VANDERBURGH, J. The defendant, it appears, first organized as a 
 boom corporation under the general law. The original articles of 
 incorporation are not disclosed by the record, but it is manifest (and 
 it is not disputed) that the organization must have been made under 
 Gen. St., ch. 34, tit. 2, and that the powers and privileges thereby 
 acquired could not include either the right to exercise the power of 
 eminent domain, or to take tolls, or to obstruct the navigable portion 
 of the St. Louis river, where the defendant's booms and works are 
 located, so as to - prevent the free passage of the logs of other owners. 
 Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 305 ; s. c. 46 Wis. 
 237, 242. It was, by virtue of its original articles of incorporation, 
 entitled only to the same rights in the river as other riparian owners, 
 and to erect and maintain booms in connection with the navigation of 
 the stream, for its own use, and the use of others who might contract for 
 its services. It was merely a private boom corporation. Soon after 
 such organization under the general laws, the legislature passed an act 
 entitled "An act relating to the Knife Falls Boom Corporation" (Sp. 
 Laws 1872, ch. 106), which purports to confer new and independent 
 franchises and enlarge powers upon the defendant corporation, within 
 the St. Louis river, and over the navigation and use thereof, as respects 
 the passage of logs, including the right of eminent domain, the right 
 to charge compensation for boomage, in the nature of tolls, prescribed 
 by the act, upon all logs passing through their works, and to receive 
 and take the entire charge and control of all logs and timber which 
 might run, come or be driven within the same, and to boom, scale 
 and deliver them as provided in such act. Osborne v. Knife Falls
 
 34O GREEN V. KNIFE FALLS BOOM CORPORATION. 70 
 
 Boom Co., 32 Minn. 412 (21 N. W. Rep. 704). And the corpora- 
 tion is also thereby granted a lien upon all such logs or timber for 
 their compensation, which may be enforced by a sale. 
 
 The detention of the plaintiff's logs, taken and held in invitum by 
 defendant under a claim of lien for the boomage allowed by this act, 
 brings up the question of its constitutionality in this case. This ques- 
 tion was not suggested or mooted in the case of Osborne against the 
 defendants, just cited, but the question there determined was as re- 
 spects the power of the legislature to authorize such improvements in 
 the use of a navigable river. The question which is raised here, and 
 which has been elaborately argued by counsel, is the constitutional 
 power of the legislature to so amend the charter, and to confer upon 
 an existing corporation additional special powers and privileges of 
 the character described, under the provisions of article 10, section 2, 
 of the constitution , forbidding the formation of corporations by spe- 
 cial acts. The discussion by counsel at the bar embraced the ques- 
 tion of the proper original construction of this clause, and the inten- 
 tion of the framers of the constitution in inserting it, and also the ques- 
 tion of the construction thereof which has in fact prevailed and been 
 acted on in this state, and the effect which the court ought to give 
 to such construction in considering this case. 
 
 i. The charter of a corporation represents a tivo-fold contract: 
 (a) The executed grant by the state of a portion of its sovereignty, 
 irrevocable in its nattire, when once accepted and acted on; (b) the 
 mutual compact bet-ween the corporators or stockholders among them- 
 selves. And in the absence of constitutional restraints, a corporation 
 might be endowed with new and enlarged powers by legislative grant, 
 and its original character, object and business might thereby be changed, 
 with the consent of the stockholders, for any lawful purpose. If the 
 clause under consideration was intended simply to prohibit special 
 acts establishing corporate entities or granting original charters, then 
 it is clear that an existing corporation may receive the grant of new 
 and extensive privileges and franchises, and the amendment to the 
 defendant's charter by the act in question may undoubtedly be upheld 
 as a valid exercise of legislative power. But the respondent contends 
 that this provision of the constitution has a wider significance, and 
 was intended to restrain all grants of corporate privileges and fran- 
 chises by special acts of the legislature, and this is, in the opinion of 
 the writer, the proper construction. A corporation, created or formed 
 by special acts, could only be so formed by means of the grant of a 
 charter conferring essential corporate powers or franchises. "Fran- 
 chises" are defined to be special privileges conferred by government 
 upon individuals, and which do not belong to the citizens of the coun- 
 try, generally, of common right. Bank of Augusta v. Earle, 13 Pet. 
 519. The grant of such a franchise is the essential thing in a charter, 
 and whether given to new corporators, or those already organized, or 
 in an original or amended charter, the grant of a corporate franchise 
 is, as between the sovereign and the corporators, so far the grant of 
 a charter, or the grant of a "franchise by act of incorporation."
 
 70 LIMITS ON POWER TO CREATE. 341 
 
 Attorney-General v. Railroad Cos., 35 Wis. 425, 560. Such grants, 
 I think, it was clearly the purpose of the framers of the constitution 
 to prohibit by special acts. 
 
 It is true, the right to be a corporation is itself a franchise, but all 
 franchises granted to a corporation become corporate franchises, and 
 essential portions of its charter or act of incorporation, and the 
 chief value of the charter in order to accomplish the purposes of 
 the corporate organization. The constitutional provision requires 
 that corporations, except for municipal purposes, shall be formed 
 under general laivs, and not under or by special acts. This can not, 
 I think, mean that a portion of the franchises or privileges in a pro- 
 posed charter might be obtained under a general law, and the re- 
 mainder by special enactments ; or, in other 'words, that a general law 
 might be a mere enabling act to confer corporate existence, leaving 
 the door open to the corporation thereafter to apply to the legislature 
 for additional franchises. Such construction must be given to the 
 provision in question as will manifestly be in harmony with its spirit, 
 and give effect to the intent and purpose of its framers. The object 
 being to restrict the granting of charters to general laws, the courts 
 can not sanction an evasion by limiting the application of the princi- 
 ple to the case of original charters or corporate organizations. The 
 object of this constitutional restriction was, as it is well understood, to 
 correct an existing evil, and prevent favoritism and abuses in secur- 
 ing grants of special charters, and to establish uniform rules for the 
 endowment of corporations with chartered privileges. Any special 
 legislation affecting the charters of corporations should therefore be 
 strictly construed, so as to give full effect to the leading object of the 
 provision, i Dill. Mun. Corp., 17; Atkinson v. Marietta, etc. R. 
 Co., 15 Ohio St. 21, 35. 
 
 Charters, then, since the adoption of the constitution, are to be ac- 
 quired under general laws, and to them must we look to ascertain 
 what franchises may be conferred by charter upon corporations. 
 Every new grant of special powers must, as between the sovereign 
 and a corporation, be regarded, as respects the exercise of such 
 powers, in the light of a new charter, and especially since, when ac- 
 cepted, the new or amended charter becomes a contract irrevocable, 
 unless the power of amendment or repeal is reserved in the grant. 
 Every new grant of a portion of its sovereignty by the state through 
 the legislature must, in principle, be within the prohibition, and be 
 equivalent to the grant of a charter de novo. In accordance with this 
 view, the legislature accordingly, upon the adoption of the constitu- 
 tion, enacted general laws for the formation of corporations for the 
 various purposes required in the commonwealth, and carefully defined 
 their powers and obligations, and made them of uniform application. 
 These general provisions have been amended from time to time, as 
 the public needs have required, and general laws have been passed 
 applicable alike to corporations of the same kind, and proper provis- 
 ions made for amended articles of incorporation. The general pro- 
 visions of law applicable to any class of corporations, together with
 
 342 GREEN V. KNIFE FALLS BOOM CORPORATION. 70 
 
 the articles of association, constitute the chatter of any particular cor- 
 poration. The general character of this legislation is entirely in har- 
 mony with the construction that corporations under general laws must 
 derive their essential powers therefrom. We lay no stress upon the 
 use of the word "formed" instead of "create" in the constitution; 
 the distinction is immaterial in respect to the matter of the grants of 
 corporate franchises. The supreme court of Wisconsin, upon a care- 
 ful consideration of the question, while determining that the charters of 
 pre-existing corporations were subject to alteration or amendment 
 under the power expressly reserved in the constitution of that state, 
 hold that there is no distinction, as respects the constitutional inhibi- 
 tion, between a grant of corporate powers and privileges, and the 
 grant of corporate charters de novo. Attorney-General v. Railroad 
 Cos., 35 Wis. 435, 560; Kimball v. Town of Rosendale, 42 Wis. 
 407, 416; Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 301. And 
 the same doctrine is also affirmed in San Francisco v. Spring Valley 
 Water- Works, 48 Cal. 493, 507; Spring Valley Water- Works v. 
 Bryant, 52 Cal. 132, 140. 
 
 2. The defendant also makes the point that it was competent for 
 the state to invest a corporation, as it might an individual, with the 
 power and duty to assume an agency in behalf of the public to make 
 the improvements and transact the business authorized by the amend- 
 ment to the charter here in question for the purpose of facilitating the 
 business of driving, handling and assorting logs in the common in- 
 terest. But the nature of the agency and business thereby created 
 and authorized does not affect the application of the rule. The pre- 
 cise point was raised in Stevens Point Boom Co. v. Reilly, 44 Wis. 
 295, 301, where the plaintiff was organized under a general law, and 
 subsequently granted powers similar to those conferred on this plaint- 
 iff by the act in controversy, and the court, by Ryan, C. J., said: 
 "The court was not indisposed, if it could, to construe the sections 
 of the latter statute relied on as an employment of an existing corpo- 
 ration to improve the navigation of the river in the public right, and 
 provide a compensation for it ; but the argument of the learned coun- 
 sel for the appellant appears to be conclusive against such a view. 
 His position was that corporate franchises are always supposed to 
 be granted on some public consideration, with corresponding benefit 
 to the grantees ; and that to hold the sections in question a valid grant 
 of power on the ground suggested would open the door indefinitely 
 to special grants to corporations under general laws, so far nullifying 
 the constitutional amendment and continuing the evils which the 
 amendment was intended to obviate." Such powers -when conferred 
 upon a corporation, become corporate powers or franchises, and 
 hence, subject to the same objection as in other cases -where a fran- 
 chise ivhich may lawfully be conferred upon an individual by spe- 
 cial act can not be so conferred upon a corporation. Ames v. Lake 
 Superior and Mississippi R. Co., 21 Minn. 241, 258. 
 
 3. It is unnecessary to consider whether there is any distinction 
 between corporations formed under general laws and corporations
 
 70 LIMITS ON POWER TO CREATE. 343 
 
 created by special charters prior to the adoption of the constitution, 
 as respects the effect of subsequent special legislation. It has been 
 the habit of the legislature, in both classes of cases, and especially 
 in the latter class, to amend and alter charters, by special acts, ever 
 since the constitution was adopted ; but I have not been able to dis- 
 cover that there are many other instances like the case at bar, wherein 
 such new and important grants of power have been made to pre-ex- 
 isting corporations. The legislation in such cases is more generally, 
 as I understand it, confined to amendments and alterations relating to 
 matter of form, or affecting the remedy, or the method and details of 
 the management of the corporate business, or the mutual relations, 
 rights or interests of the corporators among themselves, in the exercise 
 of franchises already possessed by them, which legislation might be 
 had, with the consent of the corporators, without any new or further 
 grant of corporate powers by the state. This court, in the several 
 cases which have been before it for adjudication, has always recog- 
 nized the restrictive force of the constitution as respects such grants, 
 though it has never attempted to define the exact limits of such legis- 
 lation, or to formulate any rule on the subject; and while some of the 
 cases have recognized and sustained departures from the strict rule we 
 have attempted to lay down, none of them, I think, lend any sanction 
 to so wide a departure therefrom as would be necessary to sustain the 
 grant of the special charter in this case. But no case seems to have 
 gone farther in upholding a grant of new powers than the limits sug- 
 gested in Ames v. Lake Superior and Mississippi R. Co., 21 Minn. 
 241, 286, where the court, while not assumingto accurately define the 
 limits of the constitutional restriction, indicate very clearly that a law 
 authorizing such additions or changes in the business of a corpora- 
 tion as to constitute substantially a new enterprise, to -which Us old 
 business would be a mere incident, -would be unconstitutional; and 
 the legislature has not generally transcended such limits in amend- 
 ments made to corporate charters. In exceptional cases, like the one 
 under consideration, the corporators should be deemed to have ac- 
 cepted and acted under the charter amendments assumed to be granted, 
 at their peril. 
 
 It would not, in my judgment, be a reasonable construction of this 
 act to hold that the new business authorized was incidental to the 
 original enterprise, or a mere extension or enlargement of it; nor do 
 I think that public interests would be seriously affected by a construc- 
 tion that should defeat legislation of this kind. I think that the diffi- 
 culties and inconvenience likely to result could, in a great measure, 
 be remedied through the operation of general laws, as was the case in 
 Stevens Point Boom Co. v. Reilly, supra, and see People v. Perrin, 
 56 Cal. 345. 
 
 In San Francisco v. Spring Valley Water- Works, 48 Cal. 493, 523, 
 the court, in the face of similar arguments and considerations, re- 
 versed what was held to be an erroneous construction of a similar 
 clause in a state constitution, in an earlier case, decided eleven years
 
 344 GREEN V. KNIFE FALLS BOOM CORPORATION. 70 
 
 before, and which upheld legislative grants of new franchises, and 
 adopted the strict rule contended for by the respondent here. 
 
 4. The majority of the court, however, do not agree to the views 
 above expressed in respect to the character of the special law in ques- 
 tion, and the effect to be given to it, and are of the opinion that it 
 ought not be held unconstitutional. They hold that the strict rule 
 forbidding the grant of additional powers or franchises, while it 
 may be the more logical and satisfactory , treated as an original question, 
 has never in fact been recognized or adopted by the legislature or 
 courts of the state; that this constitutional provision was open to con- 
 struction, and, during a long course of legislation, the practical cort- 
 struction placed upon it by the legislature and people has been a 
 liberal one in respect to amendments, and that the court should be 
 very slow to change it, at this late day, for the reason that the ex- 
 tensive and varied legislation affecting corporate charters, so long con- 
 tinued, has come to involve very large public and private interests. 
 Considering the amount and character of such legislation, and in view 
 of the decisions of this court, it would often be difficult to accurately 
 define the boundary line between valid and void acts, leaving many 
 cases in doubt and uncertainty until actually adjudicated. 
 
 Under these circumstances the constitutional amendment of 1881 was 
 adopted (laws 1881, c. 3), which, in direct and plain terms, forbids 
 special legislation of the character complained of. The language of 
 this amendment is: "The legislature is prohibited from enacting 
 any special or private laws in the following cases: * * * (7) For 
 granting corporate powers or privileges, except to cities." This 
 amendment, in their opinion, indicates a change of policy, and un- 
 questionably inaugurates or restores the strict rule of construction as 
 to all subsequent legislation affecting the charters of existing corpo- 
 rations. Its language and meaning are too clear to call for construc- 
 tion, and there will be no ground upon which to build any subsequent 
 erroneous legislation or popular construction. 
 
 My brethren are also of the opinion that the act in question does 
 not, within the rule laid down in Ames v. Lake Superior and Missis- 
 sippi R. Co., supra, work such a change in the character of the cor- 
 poration as to constitute it essentially a new or different corporation, 
 though it enlarges its business, and grants the necessary incidental 
 powers to make such enlargement practical and effective, and that 
 for these reasons the act should not be held void. 
 
 Judgment reversed. 
 
 See 1899, Bank of Commerce v. Wiltsie, 153 Ind. 460, 47 L. R. A. 489.
 
 71 LIMITS ON POWER TO CREATE. 345 
 
 Sec. 71. Same. 
 
 THE CITY AND COUNTY OF SAN FRANCISCO v. THE SPRING VAL- 
 LEY WATER- WORKS. 1 
 
 1874. IN THE SUPREME COURT OF CALIFORNIA. 48 Cal. Rep. 
 
 493-535- 
 
 [Appeal from the district court. The general iaw providing tor 
 the incorporation of water-works companies took effect April 22, 
 1858. The next day the legislature enacted the "Ensign Act," per- 
 mitting one Ensign and his associates, upon becoming incorporated 
 under the general corporation laws, to supply water to San Francisco, 
 use the city streets therefor, charge certain rates, have certain privi- 
 leges, and be subject to certain burdens, not included in the general 
 law relating to the incorporation of water companies.] 
 
 By the court, CROCKETT, J. On the former appeal, and at the first 
 hearing of the present appeal, it was assumed, by both court and 
 counsel, that the rights and obligations of the defendant were to be 
 ascertained by reference to the act of April 23, 1858, authorizing 
 Ensign and his associates to lay down water-pipes in the streets of 
 San Francisco. But on the rehearing the point is made for the first 
 time by the defendant that the Ensign act is unconstitutional and void, 
 and consequently can confer no rights on the plaintiff nor impose any 
 duties on the defendant. The eighth section of the act is in these words : 
 "This act shall not take effect unless the parties named in section r 
 shall, within sixty days after its passage, duly organize themselves in 
 conformity with the existing laws regulating corporations now in force 
 in this state." 
 
 It is contended that this is an attempt to confer corporate rights by 
 a special act upon Ensign and his associates, in violation of section 31, 
 article 4, of the constitution, which provides that "corporations may 
 be formed under general laws, but shall not be created by special act 
 except for municipal purposes. All general laws and special acts 
 passed pursuant to this section may be altered from time to time or 
 repealed" The act in question does not purport to organize Ensign 
 and his associates as a corporation. On the contrary, it requires them 
 to "organize themselves in conformity with the existing laws regulat> 
 ing corporations," as a condition on which they shall become entitled 
 to the benefits and privileges enumerated in the act. It is clear, there- 
 fore, that the corporation, when formed, did not derive its corporate 
 existence from the Ensign act; nor could it have done so under the 
 constitution. But it is claimed that under this provision of the con- 
 stitution, corporations must not only be formed under general laws, 
 but that their rights, duties and obligations must be prescribed in the 
 same method, and can not be created by special acts. On the other 
 
 1 Statement of facts abridged. Arguments omitted. Opinions of McKin- 
 stry (concurring) and Rhodes, J., dissenting, omitted.
 
 346 CITY, ETC., V. SPRING VALLEY WATER-WORKS. 71 
 
 hand, it is insisted that the constitution is wholly silent as to the 
 powers and duties of corporations, and goes no further than to require 
 that they shall be "formed" under general laws, and prohibits them 
 from being "created by special act;" but left the legislature free to 
 confer upon them, by either general laws or special acts, such powers 
 as it shall see fit. If this theory be correct, the constitutional pro- 
 vision has imposed upon the legislature only the duty of providing by 
 general laws the formulas by which corporations may be formed the 
 mere routine by which an artificial entity may be created but has in 
 no degree limited the power of the legislature to confer upon it by 
 special grant, at its discretion, any powers or privileges of whatso- 
 ever nature. On this construction, it would be competent for the leg- 
 islature to provide, by a general law, that any number of persons 
 might become a body corporate, on filing a certificate stating their 
 intention to that effect, and the name of the corporation ; and the 
 legislature might then, by special grant, confer on the corporation 
 any powers, however great, and any privileges, however diversified. 
 It might authorize it to construct railroads, to transact the business of 
 banking or insurance, deal in lands and establish steamship lines. 
 There would be no limit to its power in this respect. Nor, when once 
 granted by special act, could these privileges be recalled or modified 
 by the legislature. The grant, and its acceptance by the corporation, 
 would have created a contract, the obligation of which could not be 
 impaired by any subsequent legislation. 
 
 Long prior to the adoption of our constitution, experience had de- 
 monstrated the enormous evils resulting from legislation of this char- 
 acter. By means of hasty or corrupt legislation, great monopolies 
 had been created, which were beyond legislative control. 
 
 Capital was aggregated in the hands of large corporations with 
 peculiar and oppressive privileges, frequently procured through venal 
 legislation. There was no uniformity in the powers exercised by 
 corporations pursuing the same business. So long as they derived 
 their powers, privileges and immunities from special legislative grants, 
 these, of course, varied according to the temper of the legislature, and 
 the result was that each succeeding corporation had greater or less 
 powers than its predecessors. With no limitation upon the discretion 
 of the legislature in respect to the particular powers and privileges 
 to be granted to each, nor as to the innumerable purposes for which 
 corporations might be formed, nor as to the term of their duration, 
 gross abuse necessarily resulted from such a system. Extraordinary 
 privileges, oppressive powers, and onerous monopolies were con- 
 ferred upon some and denied to others engaged in the same business. 
 Their powers were frequently enlarged, and the terms of their dura- 
 tion extended by special grant. Under this system there was* danger 
 that large aggregations of capital would so practice upon the credu- 
 lity or venality of legislative bodies as to secure the most oppressive 
 monopolies, and seriously interfere with the enterprise and industry 
 of the individual citizen. One of the latest and most startling illus- 
 trations of this danger is to be found in an act of the legislature of
 
 71 LIMITS ON POWER TO CREATE. 347 
 
 Louisiana, passed in the year 1869, by which a corporation was cre- 
 ated by special grant, with the exclusive right to establish and main- 
 tain slaughter-houses and landings for cattle for a period of twenty- 
 five years in the city of New Orleans and several of the contiguous 
 parishes. The constitution of Louisiana contains no limitation on 
 the power of the legislature to confer corporate rights by special act, 
 and the validity of this statute has been upheld by the supreme court 
 of the state and of the United States. 
 
 But this unrestricted power to endow corporations with peculiar and 
 exclusive privileges would be less dangerous if a succeeding legis- 
 lature could correct the abuses practiced by its predecessor, and abolish 
 or restrict the privileges once granted. * * * 
 
 It was the special purpose of the framers of our constitution to 
 guard against these abuses by providing that "corporations may be 
 formed under general laws, but shall not be created by special act, 
 except for municipal purposes." Nor were they content to leave it 
 doubtful whether the legislature would have power to modify or abro- 
 gate these general laws or special acts to create municipal corpora- 
 tions so as to affect the rights of existing corporations. Hence, the 
 constitution contains the further provision that all general laws and 
 special acts "passed pursuant to this section may be altered from time 
 to time, or repealed." * * * 
 
 Under these provisions the source from which private corporations 
 must derive their powers and immunities is perfectly apparent. They 
 can only "be formed under general laws," and can exercise no 
 powers, except such as are derived from general laws. If this provis- 
 ion means nothing more than that the legislature shall prescribe the 
 mere formula by which a corporate entity may be called into life, 
 and may then proceed to confer upon it by special act, at its discre- 
 tion, extraordinary powers and privileges which it could not after- 
 wards revoke or modify, because they were granted under special and 
 not general laws, then, indeed, has the constitution signally failed to 
 provide a remedy for the abuses already adverted to. On this con- 
 struction, when a railroad corporation is once formed under a general 
 law, the legislature, by special grant, may confer upon it extraordinary 
 powers, greatly in excess of those exercised by other similar corpora- 
 tions. It may authorize it to engage in banking, mining or any other 
 business enterprise, or to charge higher rates of fare then are permitted 
 to other competing roads. In like manner it might discriminate in 
 favor of a particular banking corporation, or confer special, or per- 
 haps, exclusive privileges on a particular mining, insurance or manu- 
 facturing corporation. But, on the other, and the true construction 
 of this constitutional provision, all private corporations must derive 
 their powers from general laws, and not from special statutes. The 
 general laws under which they were formed, and such others as shall 
 afterward be enacted, must alone define their rights and powers. On 
 this theory, all private corporations, formed for similar purposes, will 
 stand upon the same footing, enjoy the same rights, and be subject to
 
 348 CITY, ETC.,V. SPRING VALLEY WATER- WORKS. 71 
 
 the same burdens, which can not be increased or diminished except 
 by general laws, applicable to all. * * * 
 
 Nothing short of some imperative rule of constitutional construction 
 would justify us in holding at this late day, that, though corporations 
 must be "formed" under general laws, it is, nevertheless, competent 
 for the legislature, by special grant, to confer upon a corporation 
 once organized, any powers, however extraordinary. We think, on 
 the contrary, that no corporate rights or powers can be conferred by 
 special grant, but must all be derived under general laws. 
 
 This brings us to the consideration of the Ensign act, so-called. The 
 first seven sections confer upon Ensign and his associates certain privi- 
 leges, and impose upon them certain duties in respect to furnishing 
 the city and county of San Francisco with water for the extinguish- 
 ment of fires and other municipal uses. Section 8, already quoted, 
 provides that "this act shall not take effect unless the parties named 
 in section i shall, within sixty days after its passage, duly organize 
 themselves in conformity with the existing laws regulating corpora- 
 tions now in force in this state." The grant, therefore, was not to 
 take effect until Ensign and his associates had become a corporation 
 under existing laws. It took effect as a grant, not to Ensign and his 
 associates as private individuals, but to the corporation when formed. 
 It was an attempt by the legislature to confer, by special grant, upon 
 a private corporation about to be formed, certain peculiar privileges, 
 and to subject it to certain duties not common to other corporations 
 formed under the same general law. For the reasons already stated, 
 this was not within the constitutional power of the legislature. 
 
 Judgment and order affirmed. 
 
 The foregoing opinion was delivered at the April term, 1874, and 
 a rehearing having been applied for. the following opinion, denying 
 the same, was delivered at the July term, 1874. 
 
 In the former opinion on this appeal, we held that the act of April 
 23, 1858, known as the "Ensign Act," is in violation of art. iv, 31 
 of the constitution, which provides that "corporations may be formed 
 under general laws, but shall not be created by special act, except for 
 municipal purposes." A rehearing is asked, partly on the ground 
 that this clause of the constitution has received a different construc- 
 tion in the case of the California State Telegraph Company v. Alta 
 Telegraph Company (22 Cal. 398), and that this decision has become 
 a rule of property in this state, and ought not now to be disturbed, 
 even though it was erroneous. After a careful examination of that 
 case, I am satisfied that it can not be sustained, either on reason or 
 authority. Mr. Justice Crocker, in delivering the opinion of the 
 court, refers to several adjudged cases as supporting the conclusions 
 at which he arrived, but an examination of these cases shows that 
 they were misapprehended by the court, and do not support the de- 
 cision. * * * 
 
 [After discussing the cases of Aurora v. West, 9 Ind. 85 ; Gifford v. 
 New Jersey R. & T. Co., 2 Stockton Ch. R. 171 ; C., P. & A. R.
 
 7 1 LIMITS ON POWER TO CREATE. 349 
 
 v. Erie, 27 Pa. St. 380, relied upon by Justice Crocker in the former 
 decision, and holding they did not involve the question here proceeds :] 
 
 The only remaining case referred to was the Syracuse City Bankv. 
 Davis (16 Barb. 188). The constitution of New York provides that 
 "the legislature shall have no power to pass any act granting any spe- 
 cial charters for banking purposes; but corporations or associations 
 may be formed for such purposes under general laws." The Syra- 
 cuse City Bank was organized under the general law ; but in some 
 trifling particulars, the forms prescribed by the general law were not 
 complied with, and the legislature passed a curative act, to the effect 
 that the bank should be deemed a valid corporation, and to have been 
 duly incorporated notwithstanding these informalities. The court held 
 the curative act to be valid, on the ground that it did not create a cor- 
 poration, but only remedied defects in the organization of one already 
 created. That proposition has no analogy to the question involved 
 here, which relates to the power of the legislature to confer upon an 
 existing corporation, by special act, other powers than those derived 
 from the general law. These are the only cases referred to by Mr. 
 Justice Crocker, and none of them support his ruling. * * * 
 
 On the other hand, authorities are not wanting in support of the 
 opposite construction of the clause of the constitution. In Low v. 
 The City of Marysville (5 Cal. 214) the question was whether it was 
 competent for the legislature, by special act, to authorize the city 
 (a municipal corporation) to subscribe for stock in a steamboat 
 company organized to establish a line of steamers plying between 
 that city and San Francisco. In delivering the opinion of the 
 court, Chief Justice Murray holds that " the powers of municipal cor- 
 porations must be confined strictly to police or governmental pur- 
 poses," and that the power conferred upon the corporation to sub- 
 scribe for stock in a railroad could not be granted by special act ; 
 "for as it would have been in violation of the constitution to create 
 an incorporation by special act, for other than municipal purposes, it 
 follows that it would be equally unconstitutional to confer special 
 power on a corporation already created. In other words, it would 
 be doing by two acts that which the legislature could not do by one, 
 and corporations for almost every purpose might be created by special 
 act, by first incorporating the stockholders as a municipal body." This 
 reasoning, I think, is unanswerable, and the decision is a direct ad- 
 judication upon the question involved here. 
 
 The constitution of Ohio contains these clauses: 
 
 "Section i. The general assembly shall pass no special act con- 
 ferring corporate powers. 
 
 "Section 2. Corporations may be formed under general laws; but 
 all such laws may, from time to time, be altered or repealed." 
 
 In Atkinson v. The M. & C. R. Co., 15 Ohio St. Rep. 35, the 
 court, in construing these clauses, says: "Constitutional provisions 
 would be of little value if they could be evaded by a mere change of 
 forms. These provisions of the constitution are too explicit to admit 
 of the least doubt that they are intended to disable the general assem-
 
 350 CITY, ETC., V. SPRING VALLEY WATER-WORKS. /I 
 
 bly from either creating corporations or conferring upon them corpo- 
 rate powers by special acts of legislation. It was intended to correct 
 an existing evil, and to inaugurate the policy of placing all corpora- 
 tions of the same kind upon a perfect equality as to all future grants 
 of power; of making such laws applicable to all parts of the state, 
 and thereby securing the vigilance and attention of its whole repre- 
 sentation, and, finally, of making all judicial constructions of their 
 powers, or the restrictions imposed upon them, equally applicable to 
 all corporations of the same class." * * * 
 
 The constitution of Iowa provides that ''the general assembly 
 shall not pass local or special laws in the following cases: 
 * * * for the incorporation of cities and towns," and for other 
 specified purposes, "In all the cases above enumerated, atzd in all 
 other cases where a general law can be made applicable, all laws shall 
 be general and of uniform operation throughout the state." 
 
 The legislature passed a special act to amend the charter of the city 
 of Davenport, a municipal corporation, and in Ex parte Pritz (9 
 Iowa 30), the question before the court was, whether the legislature, 
 by a special act, could amend the charter of a municipal corporation, 
 and thereby place it upon a different footing from other municipal 
 corporations, organized under the general law. In considering this 
 point, the court says the intention of the constitution was "to prevent 
 special or local legislation ; to require that the legislature should pass 
 general laws upon all the subjects named, and in all other cases where 
 such general laws could be made applicable. There can be no ques- 
 tion but that it was designed to confine the legislature to general legis- 
 lation, and leave the people, in their municipal capacity, to organize 
 and carry out their government under such general laws. If this be 
 so, then to say that the legislature may not pass a law to incorporate 
 a city, but may, to amend an act of incorporation in existence before 
 the adoption of the constitution, or charters formed under the general 
 law, would make this provision of the constitution practically amount 
 to nothing. For if they may amend, they may, to the extent of pass- 
 ing an entire new law, except as to one section. Or they may at one 
 session amend half the law, and the next the other half, and thus the 
 plain and positive prohibition of the fundamental law be evaded. By 
 such a construction the evil sought to be remedied would continue, if 
 possible, in a more objectionable form." 
 
 The same principle was substantially decided in the Town of 
 McGregor v. Bauliss (19 Iowa 43). It will be observed that by the 
 constitution of Iowa, the prohibition of the constitution was against 
 special laws, "for the incorporation of cities and towns;" whilst in 
 our constitution the provision is that corporations, except for munici- 
 pal purposes, shall not be "created" by special act. In neither is 
 the legislature in express terms prohibited from conferring additional 
 powers upon, or amending the charter of an existing corporation 
 formed under the general law. The reasoning of the supreme court 
 of Iowa, however, is conclusive on the point that, under our con- 
 stitution, the legislature, by special act, can not either amend the
 
 71 : iMITS ON POWER TO CREATE. 351 
 
 charter of an existing corporation, or confer upon it powers and im- 
 munities not granted by the general law. * * * 
 
 In the case of the Dartmouth College v. Woodward (4 Wheat. 519) 
 it had been decided by the supreme court of the United States that 
 privileges secured by special acts of incorporation constituted con- 
 tracts, which were protected by that clause of the constitution of the 
 United States, which prohibits a state from passing laws impairing 
 the obligation of contracts. That case was followed by numerous other 
 decisions of like import, in the same court, and in almost every state 
 of the Union, including New York, Massachusetts, New Hampshire, 
 Pennsylvania, Michigan, Iowa, Indiana, Illinois and Virginia. 
 
 In his work on Constitutional Limitations (page 279), Judge Cooley 
 says: "It is under the protection of the decision in the Dartmouth 
 College case that the most enormous and threatening powers in our 
 country have been created, some of the great and wealthy corpora- 
 tions actually having greater influence in the country at large, and 
 upon the legislation of the country, than the states to which they owe 
 their corporate existence. Every privilege granted or right conferred, 
 no matter by what means or on what pratense, being made inviolable 
 by the constitution, the government is frequently found stripped of 
 its authority in very important particulars by unwise, careless or cor- 
 rupt legislation ; and a clause of the federal constitution whose pur- 
 pose was to preclude the repudiation of debts and just contracts, pro- 
 tects and perpetuates the evil. To guard against such calamities in 
 the future, it is customary now for the people in framing their consti- 
 tutions to forbid the granting of corporate power, except subject to 
 amendment and repeal, but the improvident grants of an early day 
 are beyond their reach." In view of these calamities, the framers of 
 our constitution were not content merely to reserve to the legislature 
 the power of amendment and repeal, but prohibited in terms the 
 power to create corporations, except for municipal purposes by spe- 
 cial act, and almost every state which has recently amended its con- 
 stitution has followed our example. In the face of these facts it is 
 altogether incredible that in forbidding corporations, except for munici- 
 pal purposes, to be "created" by special act, it was intended to pro- 
 vide only that the mere forms by which corporate entity was created 
 should be prescribed by the general laws ; but that when thus formed, 
 it may be endowed by special act with any powers however diversi- 
 fied, at the discretion of the legislature. * * * 
 
 It is claimed, however, that the introduction of water in a city for 
 the use of the inhabitants and of the corporate authorities, is a "mu- 
 nicipal purpose" within the sense of the constitution, and that private 
 corporations may be created by special act for such purposes. In 
 Low v. Marysville, supra, it was decided that the term "municipal 
 purposes," as employed in this section of the constitution, referred 
 only to governmental and police powers, and that the legislature is 
 prohibited from conferring even upon a municipal corporation by 
 special act, any powers except for police and governmental purposes." 
 But however this may be in respect to the corporation itself, it is
 
 352 CITY, ETC., V. SPRING VALLEY WATER-WORKS. . 71 
 
 clear that the right to introduce water into a city can not be conferred 
 upon a private corporation by special act, upon the plea that it was 
 a corporation organized for "municipal purposes" in the sense of the 
 constitution. If the legislature, by special act, can confer such pow- 
 ers upon a private corporation for supplying a city with water, it can 
 confer similar powers upon all corporations for similar purposes. It 
 might by special act incorporate a gas company to furnish the inhabitants 
 with gas, or a coal or wood company to furnish them with fuel, or a pav- 
 ing company to pave the streets, or a slaughter-house company to furnish 
 the people with meat, or a milling company to supply them with bread. 
 Every county in the state is a quasi municipal corporation, and it is 
 the duty of the corporation to see that proper roads, bridges and pub- 
 lic buildings are provided for the use of the inhabitants. On this 
 theory, the legislature, by special act, might organize private corpo- 
 rations for all these purposes, and endow them with peculiar, oppres- 
 sive, and, perhaps, exclusive powers and privileges. In this way the 
 constitutional prohibition would be frittered away, and would prac- 
 tically amount to nothing. * * * 
 
 It is further claimed that the decision in the case of The California 
 State Telegraph Co. v. The Alta Telegraph Co. has become a rule of 
 property, and ought not now to be disturbed, even though it be con- 
 ceded to be erroneous. In support of this proposition we have been 
 referred to numerous statutes claimed to be similar to the Ensign act, 
 under which it is said great property rights have grown up. It may 
 be that some, but I think no serious, injury will result to property 
 rights from overruling that decision. If it shall be found that serious 
 inconvenience would otherwise result, the legislature may amend the 
 general law regulating corporations, so as to obviate the difficulties 
 that would otherwise arise, and allow these corporations to reincor- 
 porate under the new law. But, in any event, it is better that some 
 temporary inconvenience should be submitted to rather than that one 
 of the most valuable provisions of the fundamental law should be 
 practically obliterated. No greater calamity could befall this state 
 than to open wide the door leading to careless or corrupt legislation 
 in the form of special acts granting peculiar and onerous privileges to 
 private corporations. * * * 
 
 It has been suggested that the grant to the Spring Valley Water- 
 Works under the Ensign act was not a grant of corporate rights, but 
 only an easement permitting the company to lay its pipes through the 
 streets, subject to the performance of certain duties imposed by the 
 act. The argument is that an easement of this character is property, 
 which it was in the power of the state to grant to an existing corpo- 
 ration as it might grant property to any corporation, coupled with such 
 conditions as it saw fit to impose ; and that this is not a grant of .cor- 
 porate rights within the purview of the constitution. It is a conclu- 
 sive answer to this proposition that the Ensign act did not grant to 
 the Spring Valley Water- Works any easement of this character which 
 it did not already possess under the general law, under which it was 
 incorporated. By the fifth section of the general act (Statutes 1858,
 
 71 LIMITS ON POWER TO CREATE. 353 
 
 p. 219^, the company had the absolute right "to use so much of the 
 streets, ways, and alleys in any town, city or county, or any public 
 road therein, as may be necessary for laying pipes for conducting 
 water into any such town, city, or city and county, or through or into 
 any part or parts thereof." The corporation already having this 
 right, under its act of incorporation, it is clear that the Ensign act con- 
 ferred upon it no additional privileges in this respect. 
 
 When the state grants to a private corporation an easement over 
 the streets, not common to the public at large, it acts in its sovereign 
 capacity and grants a franchise, 'which enters into and forms an es- 
 sential element in the corporate powers of the corporation; 'which be- 
 comes entitled to the right, not because the state has parted with any 
 proprietary interest in the land, but because in its sovereign capacity , 
 having the control of public high-ways, it has granted to the corpora- 
 tion a franchise, entitling it to an easement over the streets not com- 
 mon to the general public. This is purely a grant of corporate power, 
 and nothing more or less, and, as we have already seen, such rights 
 can not be conferred by special act. But even if it be conceded that 
 the right to the use of the streets may be granted by special act, still 
 the Ensign act must fail, because the right to use the streets is insep- 
 arably blended with the grant of other rights, and the imposition of 
 certain burdens, which are in plain violation of the constitution. As, 
 for example, the right in a certain contingency to charge higher rates 
 for water than other corporations organized under the same general 
 law, and the imposition of greater burdens upon the company, than 
 are imposed by the general law. It is a well-settled rule, that where 
 a portion of an act is constitutional and another portion is unconstitu- 
 tional \ if the two are so inseparably blended together as to make it 
 clear that either clause would not have been enacted without the other, 
 the whole act must fall. It is perfectly clear that such is the condi- 
 tion of this act, and that all its provisions must stand or fall together. 
 
 We are satisfied that these views are in strict accordance with the 
 letter and spirit of the constitution. On the opposite theory the leg- 
 islature, by special act, may grant to a railroad corporation the right 
 to lay down its tracks in the streets on condition that it supply the 
 inhabitants with water or gas, or keep the streets in repair at a spec- 
 ified price, thus opening the door to corrupt and vicious legislation, 
 against which the constitution has so carefully guarded. 
 
 Rehearing denied. 
 
 See note, p. 706. 
 23 WIL. CASES.
 
 354 SOUTHERN PACIFIC R. CO. V. ORTON. 72 
 
 Sec. 72. Same. 
 
 SOUTHERN PACIFIC R. CO. v. ORTON. 1 
 
 1879. IN THE CIRCUIT COURT OF THE UNITED STATES, DISTRICT 
 OF CALIFORNIA. 32 Fed. Rep. 457-480. 
 
 [Action to recover lands. Plaintiff claimed, under congressional 
 grant, to aid Southern Pacific Railroad. Patent had issued. De- 
 fendant claimed by pre-emption. The railroad company was incor- 
 porated by the state of California in 1861. 
 
 On April 4, 1870, the legislature of California passed an act as 
 follows: "Whereas, by the provisions of a certain act of congress 
 of the United States of America, entitled 'An act granting lands 
 to aid in the construction of a railroad and telegraph line from San 
 Francisco to the eastern line of the state of California,' approved 
 July 27, 1866, certain grants were made to, and certain rights, privi- 
 leges, powers and authority were vested in and conferred upon 
 the Southern Pacific Railroad Company, a corporation duly organized 
 and existing under the laws of the state of California ; therefore, to 
 enable the said company to more fully and completely comply with 
 and perform the requirements, provisions and conditions of the said 
 act of congress, and all other acts of congress now in force or which 
 may hereafter be enacted, the state of California hereby consents to 
 said act ; and the said company, its successors and assigns are hereby 
 authorized and empowered to change the line of its railroad so as to 
 reach the eastern boundary line of the state of California by such route 
 as the company shall determine to be the most practicable, and to file 
 new and amendatory articles of association ; and the right, power 
 and privilege is hereby granted to, conferred upon and vested in them, 
 to construct, maintain and operate, by steam or other power, the said 
 railroad and telegraph line mentioned in said acts of congress, hereby 
 confirming to and vesting in the said company, its successors and as- 
 signs, all the rights, privileges and franchises, power and authority 
 conferred upon, granted to or vested in said company by the said acts 
 of congress, and any act of congress which may be hereafter enacted."] 
 
 SAWYER, J. * * * But it is insisted that this act was passed in 
 violation of the provisions of section 31 of article iv of the constitution 
 of California, which reads: "Corporations may be formed under gen- 
 eral laws, but shall not be created by special act except for municipal 
 purposes." After a careful consideration of the question, I am, myself 
 unable to perceive wherein that portion of the act, at least, which au- 
 thorizes the company to change the line of its road, and to accept the 
 grant made by and to build the road provided for in the act of con- 
 gress is in contravention of this provision of the constitution. It is 
 unnecessary to consider the provision of this act authorizing the cor- 
 
 1 Only that part of the case relating to construction of constitutional pro- 
 vision given.
 
 $ 72 LIMITS ON POWER TO CREATE. 355 
 
 poration to file amended articles of association, for, if that be con- 
 ceded to be in excess of the legislative power, it can be separated 
 from the others, and does not vitiate the other provisions. I do not 
 perceive that any amendment of the articles was necessary, for the 
 corporation was already formed or created, was already in existence 
 with all the essential faculties that go to make up a corporation for 
 building a railroad, and the act authorizing the change of line and 
 acceptance of the congressional grant with its conditions, only granted 
 to an existing person permission to do a thing which had no necessary 
 relation to the corporate grantee, and was not at all essential to the 
 existence of the legal entity created by law, or to any other person, 
 natural or artificial. But if an amendment to the articles was neces- 
 sary, it was already authorized and provided for by the prior act of 
 March i, 1870, and it was not necessary to repeat the authority in 
 this act, and the act of March i is a general act, and, therefore, not 
 obnoxious to" the objection urged against the said act of April 4, 1870. 
 The settled rule of construction of state constitutions is that they are 
 not special grants of power to legislative bodies, like the constitution 
 of the United States, but general grants of all the usually recognized 
 powers of legislation not actually prohibited or expressly excepted. 
 In the language of Mr. Justice Shafter in Bourland v. Hildreth, 26 
 Cal. 183: "The constitution is not a grant of power or an enabling 
 act to the legislature. It is a limitation on the general powers of a 
 legislative character, and restrains only so far as the restriction ap- 
 pears either by express terms or by necessary implication, and the 
 delicate office of declaring an act of the legislature unconstitutional 
 and void should never be exercised unless there be a clear repug- 
 nancy between the statute and the organic law." See, also, Bour- 
 land v. Hildreth, 26 Cal. 215, 225, et seq.; People v Sassovich, 29 
 Cal. 482; Railroad Co. v. City of Stockton, 41 Cal. 161. And it is 
 equally well settled that the exception must be strictly construed. In 
 the language of Mr. Chief Justice Wallace in the last case cited: 
 "The construction is 'strict against those -who stand upon the excep- 
 tion and liberal in favor of the government itself S ' Railroad Co. 
 v. City of Stockton, 41 Cal. 162. And in Sharpless v. Mayor of 
 Philadelphia, 21 Pa. St. 160, Mr. Chief Justice Black said upon 
 the same subject: "The federal constitution confers powers expressly 
 . enumerated, that of the state contains a general grant of all powers 
 not excepted. The construction of the former instrument is strict 
 against those who claim under it, the interpretation of the latter is 
 strict against those who stand upon the exceptions, and liberal in 
 favor of the government itself; the federal government can do noth- 
 ing but what is authorized expressly, or by clear implication ; the state 
 may do -whatever is not prohibited." 
 
 The authorities establishing this canon of construction are numer- 
 ous, and, so far as I know, uniform. Bearing this rule of construc- 
 tion in mind, what does the constitutional prohibition relied on mean? 
 The only prohibitory words are that corporations of the class in ques- 
 tion "shall not be created by special act." The word "create" has
 
 356 SOUTHERN PACIFIC R. CO. V. ORTON. /2 
 
 a clear, well-settled, and well-understood signification. It means to 
 bring into being, to cause to exist, to produce, to make, etc. To 
 my apprehension, it appears to be one thing to create, or bring into 
 being, a corporation, and quite another to deal with it as an existing 
 entity, a person, after it is created by regulating its intercourse, rela- 
 tions and acts as to other existing persons, natural and artificial. "A 
 corporation is a franchise possessed by one or more individuals, who 
 subsist as a body politic, under a special denomination, and are vested, 
 by the policy of the law, with the capacity of perpetual succession, 
 and of acting in several respects, however numerous the association 
 may be, as a single individual." 2 KentComm. (9th ed.) 306; Rail- 
 road Co. v. Commissioners, iiaU. S. 609, 5 Sup. Ct, Rep. 299. The 
 ordinary incidents to a corporation are to have perpetual succession, 
 and the power of electing or otherwise providing members in the place 
 of those removed by death or otherwise, to sue and to be sued, to grant 
 and receive and to purchase and hold lands and chattels by their cor- 
 porate name; to have a common seal ; to make by-laws for the gov- 
 ernment of the corporation, and sometimes the power of amotion or 
 removal of members. "The essence of a corporation consists only of 
 a capacity to have perpetual succession under a special denomination, 
 and an artificial form, and to take and grant property, contract obliga- 
 tions, and sue and be sued by its corporate name, and to receive and 
 enjoy in common grants of privileges and immunities." Railroad Co. 
 v. Commissioners, 112 U. S. 609, 3 Sup. Ct. Rep. 325. 
 
 The creative act necessarily extends only to the bringing into being 
 of an artificial person, with the capacities stated, among which is "# 
 capacity to receive and enjoy in common grants and privileges, and 
 immunities;" that is to say, a capacity to receive and enjoy such 
 grants, privileges, and immunities as may be made either at the time 
 of the creation or any other time. The creation of the being with the 
 capacity to receive grants is one thing; the granting of other privi- 
 leges and immunities, which it has the capacity to receive when created, 
 is another. When such a being is brought into existence, a corporation 
 has been created. A legal entity, a person, has been created, with a 
 capacity to do by its corporate name such things as the legislative 
 power may permit, and receive such grants of such rights and privi- 
 leges, and of such property, as the legislature itself or private persons 
 with the legislative permission may give. But I do not understand 
 that every right, privilege, or grant that can be conferred upon a cor- 
 poration must be given simultaneously with the creative act of incor- 
 poration. On the contrary, I suppose the artificial being must be cre- 
 ated with a capacity to receive before anything can be received. The 
 right to be a corporation is itself a separate, distinct, and independ- 
 ent franchise, complete within itself. And a corporation having been 
 created, enjoying this franchise, may receive a grant and enjoy other 
 distinct and independent franchises, such as may be granted to and 
 enjoyed by natural persons ; but because it enjoys the latter franchises, 
 they do not, therefore, constitute a part of the distinct and independ- 
 ent essential franchise, the right to be a corporation. They are ad-
 
 72 LIMITS ON POWLR T< CREATE. 357 
 
 ditional franchises given to the corporation, and not parts of the cor- 
 poration itself, not of the essence of the corporation. 
 
 Natural persons, with certain physical capacities, being brought 
 into existence through the process appointed by nature, may be pro- 
 hibited by law from doing one thing and permitted to do another; 
 may enjoy one franchise and be excluded from the enjoyment of an- 
 other ; but these permissions and prohibitions constitute no part of the 
 person, and were in no manner connected with the creative act. So, 
 with reference to corporations, being once created, they have the 
 physical capacity, through their officers, to do anything that a natural 
 person may do; such as building a church, a steamship or a railroad. 
 But, being created, they may be prohibited from doing one thing and 
 permitted to do another, like natural persons ; but this permission or 
 prohibition is not a creative act, but an act regulating the conduct of 
 the corporation, and determining its rights and relations to the public, 
 and to other existing persons, natural and artificial. Corporate pow- 
 ers, strictly speaking, I suppose, are those peculiar and essential to a 
 corporation not those which are or may be possessed in common 
 with natural persons; and they are very few in number, embracing 
 those which pertain to the essence of the corporation. The term is, 
 undoubtedly, often and conveniently used in a broader sense, but it is 
 not found in the constitutional provision in question. Section 33, 
 article 4, defines the term "corporation" as used in the constitution, 
 and says it "shall be construed to include all associations and joint- 
 stock companies having any of the powers of corporations not possessed 
 by individuals or partnerships." Of course, it excludes all associa- 
 tions that do not have any powers other than those possessed by indi- 
 viduals and partnerships. And this provision is a recognition of the 
 idea that corporate powers are only such as are not possessed in com- 
 mon with individuals and partnerships or natural persons. 
 
 The power to create a corporation, as the terms are used in section 
 33, extends, therefore, to the bringing into being of a legal entity, 
 having powers and privileges not possessed by individuals; that is to 
 say, possessing the powers, which, as before stated, constitute the 
 essence of a corporation, or corporate powers, strictly speaking, and 
 has no reference to the legislative dealings with that artificial person 
 after its creation. I suppose the constitution might have devolved the 
 power of creating a corporation on some other body, as the supreme 
 court, and the power to deal with it after its creation to regulate its 
 conduct and relations to the public, and to prescribe its rights, powers, 
 and duties other than those strictly corporate, to the legislature. Had 
 it been so provided, there can be no doubt that such powers would 
 have been wholly distinct and independent. I do not perceive that 
 they are any the less so because exercised by the same body. The 
 act of creating a corporation by conferring upon an association of in- 
 dividuals certain strictly corporate powers, embracing only powers 
 and privileges not possessed by individuals and partnerships, and then 
 granting to it other privileges, enlarging or restricting its right to the 
 enjoyment of other franchises that may be possessed in common with
 
 358 SOUTHERN PACIFC R. CO. V. ORTON. 72 
 
 natural persons, and regulating its external relations are, to my mind, 
 distinct and independent, and I find nothing in the constitution pro- 
 hibiting the latter power to the legislature. There are numerous dis- 
 tinct, independent franchises, any one or more of which may be 
 granted indifferently either to natural persons or existing corporations, 
 and, in my judgment, the constitution no more prohibits the granting 
 of any one of those franchises, except such as are expressly prohibited, 
 to corporations, by special act, than to individuals. It only prohib- 
 its the creation of a corporation by special act ; that is to say, that the 
 creating or granting of the particular franchise constituting a corpo- 
 ration shall not be by special act. The prohibition applies to no other 
 of the numerous franchises which are subjects of legislative grant. 
 
 In this case there was a corporation a railroad corporation duly 
 created under the general act, for the purpose of building a railroad 
 in a southeastern direction through the state of California to the east- 
 ern line of the state, to intersect with a road which, it was supposed, 
 would soon be built to the eastern states, the route of which was still 
 undetermined and uncertain. It had all the faculties physically neces- 
 sary to enable it to build any railroad. Afterward congress authorized 
 the building of a road across the continent on or near the thirty-fifth 
 parallel of latitude to intersect the line of the state at a point different 
 from that designated in the articles of association of said corporation, 
 and made a grant to the corporation on condition that it should build 
 a road from a point of intersection with said transcontinental road, 
 near the eastern line of the state, to San Francisco, and the legisla- 
 ture, by special act, authorized the said corporation, already in exis- 
 tence, with authority and capacity to build a railroad, to build its road 
 upon said line, and accept and receive said grant. In my judgment, 
 this is in no sense an act creating a corporation, or a new corporate 
 power, or new corporate franchise within the proper meaning of the 
 term, but a dealing with a corporation already in existence authorized 
 to build a road in the same general direction, with the same object in 
 view ; that the change of line was a matter of detail only, and, if not, 
 but on the contrary, the grant of an independent right, and an addi- 
 tional privilege or franchise, it was still one entirely competent for 
 the legislature to confer upon the existing corporation, as well as on 
 any natural person, and in no way obnoxious to the provision prohib- 
 iting the creation of a corporation for such purpose by special act. 
 To reach any other conclusion would be to violate the canon of con- 
 stitutional construction before stated ; to disregard the plain meaning 
 of the terms used in the constitution, and upon imaginary grounds in- 
 terpolate into that instrument language which the people have not seen 
 fit to place there themselves. As said, in substance, by Mr. Justice 
 Crocker, in Telegraph Co. v. Telegraph Co., 22 Cal. 425, to give 
 the constitution any such construction as claimed we would have to 
 make it read thus: "Corporations may be formed, and other fran- 
 chises and special privileges granted, under general laws, but shall 
 not be created, nor shall other franchises or special privileges be 
 granted by special act, except for municipal purposes." He well re-
 
 $ /2 LIMITS ON POWER TO CREATE. 359 
 
 marks: "If such had been the meaning intended by the framers of 
 the constitution, they could easily have expressed it in apt words. 
 The language used by them is clear, and they well knew that it in- 
 cluded but one of the numerous class of franchises the subject of leg- 
 islative grant, and that a regulation of one could not by any reasonable 
 implication be extended to others not mentioned." * * * 
 
 I should have contented myself with the simple reference to this 
 authority without any discussion of the question, but for the fact that 
 defendant has cited the case of San Francisco v. Water-Works, 48 
 Cal. 493, decided by the supreme court of the state, in which it is 
 held that corporations can exercise no powers except such as are con- 
 ferred by the general laws under which they are formed, and that the 
 legislature can not confer on -such corporations any powers, or grant 
 them any privileges by special act. * * * 
 
 In 1863, the same question arose in Telegraph Co. v. Telegraph 
 Co., 22 Cal. 398, and was elaborately considered. It was then held 
 that the legislature might confer upon existing corporations by special 
 act a direct grant of special privileges and franchises ; and that there was 
 no restriction upon the power imposed by the constitution, except as 
 to the particular privileges therein specified. * * * 
 
 Of the six justices of the supreme court, who have considered 
 the question, three took one view and three the other, so they stand 
 in number equally balanced. The able and eminent justice who 
 delivered the opinion of the - court in the last case, for whose 
 opinion I entertain profound respect, very ably presented the same 
 views adopted in his opinion, in his argument as counsel in the 
 former case, so that the court in the first case did not overlook, but, on 
 the contrary, fully considered them. Had the justices who have 
 passed upon the question in the two cases sat as one court, there would 
 have been no decision of the question. Thus, the matter stands 
 equally balanced, the only difference as authority being that the decis- 
 ion against the constitutionality of the power is last. * * * 
 
 For these reasons, under the following authorities, I feel at liberty 
 to adopt my own and the views of the United States supreme court, 
 which accord with the first case decided by the supreme court of Cali- 
 fornia, and not with the second. Insurance Co. v. Debolt, 16 How. 
 431, 432; Gelpcke v. City of Dubuque, i Wall. 206. But this case 
 falls within the principle decided in the two cases cited, as well as 
 others, in another particular. The act in question was passed and 
 acted upon by the railroad company four years before the decision in 
 San Francisco v. Water- Works, and rights have become vested under 
 it. During all that time it was the settled construction of the consti- 
 tutional provision in question that such legislation was valid. The 
 act, therefore, became a contract between the state and the company, 
 under which the latter entered upon the construction of its road in 
 pursuance of the terms of the several statutes mentioned. 
 
 In the last case cited the court, quoting from the opinion in the 
 next preceding case, says: "The sound and true rule is, that if the 
 contract, when made, was valid by the laws of the state, as then ex-
 
 360 STATE V. THE CITY OF CINCINNATI. 73 
 
 pounded by all the departments of the government and administered 
 in its courts of justice, its validity and obligation can not be impaired 
 by any subsequent legislation, or decision of its courts altering the 
 construction of the law. The same principle applies when there is 
 a change of judicial decision as to the constitutional power of the 
 legislature to enact the law. To this rule -we adhere. It is the laiv 
 of this court. It rests upon the plainest principles of justice. To 
 hold otherwise would be as unjust as to hold that rights acquired un- 
 der statutes may be lost by repeal. The rule embraces this case." 
 i Wall. 206. And so it does the case now in hand. * * * 
 
 I, therefore, hold the act of April 4, 1870, authorizing the defend- 
 ant to build its road upon the line indicated in the plat filed with the 
 commissioner of the general land office, and to accept the congres- 
 sional grant, was a valid act, and at the time of its passage conferred 
 the rights and powers indicated upon the Southern Pacific Railroad 
 Company. * * * 
 
 Judgment for plaintiff. 
 
 Note. Supporting this view see : 1880, Attorney-General v. North Am. L. 
 Ins. Co., 82 N. Y. 172; 1881, Central Ag. & Mech. Assn. v. Ala. G. L. Ins. 
 Co., 70 Ala. 120; 1884, Attorney-General v. Joy, 55 Mich. 94; 1887, Wiley v. 
 Bluffton, 111 Ind. 152; 1891, St. Joseph and Iowa R. Co. v. Shambaugh* 106 
 Mo. 557; 1898, Indianapolis v. Navin, 151 Ind. 139, 47 N. E. Rep. 525. 
 
 Sec. 73. (3) Conferring corporate powers. 
 
 "The legislature shall pass no special or local act conferring cor- 
 porate powers." 
 
 THE STATE OF OHIO, Ex RBL. ATTORNEY-GENERAL, v. THE CITY 
 
 OF CINCINNATI. 1 
 
 1870. IN THE SUPREME COURT OF OHIO. 20 Ohio State Reports, 
 
 18-37. 
 
 BRINKERHOFF, C. J. [This is an information in the nature of a 
 writ of quo ivarranto, filed in this court by the attorney-general for 
 the purpose of testing and contesting the validity of certain extensive 
 annexations of outlying territory and incorporated villages claimed by 
 the city to have been made to it under the authority and in accordance 
 with the provisions of the act of the i6th of April, 1870, to prescribe 
 the corporate limits of Cincinnati. 67 Ohio L. 141. 
 
 The city, by plea, set out the statute, and relied upon it for her au- 
 thority in annexing the territory and exercising her jurisdiction over 
 it. The state filed a reply, to which the city demurred, and thereby 
 raised the legal sufficiency of all the preceding pleadings, the main 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 73 LIMITS ON POWER TO CREATE. 361 
 
 point being the constitutionality of the act. The constitution, article 
 xiii, provides: 
 
 "Sec. i. The general assembly shall pass no special act, confer- 
 ring corporate powers." 
 
 "Sec. 2. Corporations may be formed under general laws, but all 
 such laws may, from time to time, be altered or repealed." 
 
 "Sec. 6. The general assembly shall provide for the organization 
 of cities and incorporated villages by general laws, and restrict their 
 power of taxation, assessment, borrowing money, contracting debts 
 and loaning their credit so as to prevent the abuse of such power."] 
 
 In looking at these provisions of our constitution and indeed, in 
 looking over all the provisions of our constitution from beginning to 
 end it will be seen that they make no distinction as respects legisla- 
 tive power in the creation of them, and in the conferring of powers 
 upon them between any classes of corporations proper. They make 
 no distinction between private corporations such as railroad, manu- 
 facturing or mining corporations or the like and public municipal 
 corporations, such as cities and villages. On the contrary, and as if 
 to preclude the hypothesis of any such distinction, the sixth section of 
 the thirteenth article assumes the imperative form of expression and 
 declares that "the general assembly shall provide for the organization 
 of cities and incorporated villages by general laws." In respect to 
 corporations proper, whether private or municipal, the provisions of 
 section i, article xiii, are all comprehensive. "The general assembly 
 shall pass no special act conferring corporate powers." These pro- 
 visions of the constitution are as imperative, as comprehensive and 
 emphatic as if the people, speaking through their constitution, had 
 said: "The bane and curse of our legislation, as it existed under the 
 latitudinarian provisions of the constitution of 1802, is in future utterly 
 and absolutely prohibited. Henceforth, the laws conferring corporate 
 powers shall be general, affecting or liable to affect the interests of 
 the constituency of every individual member of the general assembly 
 and so by powerful motives calling his attention to the effect of pro- 
 posed enactments upon his own immediate constituency as well as 
 upon the people of other localities." This is the policy and. intent 
 of the provisions of the constitution above quoted, and they are as 
 clearly apparent as if they had been expressed in so many words. 
 No one who has read the proceedings and debates of the convention 
 which presented to the people of Ohio the framework of the consti- 
 tution which the latter by their votes established and adopted, or is 
 old enough to remember the apprehensions of evil consequences with 
 which the conferring of corporate powers by special acts were re- 
 garded, can fail to. see that it was one of the ends and aims of the 
 constitutional convention and of the people who adopted the frame- 
 work of a constitution which that convention presented for their adop- 
 tion or rejection, to cut up by the roots at once and forever, all capac- 
 ity of the general assembly to confer by special act any powers what- 
 soever upon any corporate body whatsoever. 
 
 At one time, indeed, an attempt was made to escape the effect of
 
 362 STATE V. THE CITY OF CINCINNATI. 73 
 
 these constitutional restrictions on legislative power, on the theory 
 that the phrase "conferring corporate powers" meant simply the con- 
 ferring of corporate existence the creation of a corporation, so that 
 if corporations were only created under general laws, the legislature 
 might then proceed by special acts to confer upon existing corpora- 
 tions as many and as varied powers as it pleased. Such a construc- 
 tion would leave a door wide open for the re-introduction of all the 
 evils of special legislation which these restrictions and mandatory pro- 
 visions of the constitution were obviously designed to guard against 
 and prevent. Accordingly such a construction was distinctly repudi- 
 ated by this court in the carefully considered case of Atkinson v. The 
 Marietta, etc., R. Co., 15 Ohio St. 21. In that case Ranney, J., 
 delivering the opinion of the court, and referring to the first and sec- 
 ond sections of the thirteenth article of the constitution above quoted, 
 says: "These provisions of the constitution are too explicit to admit 
 of the least doubt that they were intended to disable the general as- 
 sembly from either creating corporations or conferring upon them 
 corporate powers by special acts of legislation. It was intended to 
 correct an existing evil, and to inaugurate the policy of placing all 
 corporations of the same kind upon a perfect equality as to all future 
 grants of power, of making such law applicable to all parts of the 
 state, and thereby securing the vigilance and attention of its whole 
 representation, and finally, of making all judicial constructions of 
 their powers, or the restrictions imposed upon them, equally applicable 
 to all corporations of the same class. We must give such a construc- 
 tion to the constitution as will preserve its leading objects intact." 
 I think the following propositions to be impregnable : 
 
 1. The general assembly can not, by a special act, create a corpo- 
 ration. 
 
 2. It can not, by special act, confer additional powers upon corpo- 
 rations already existing. 
 
 3. In the purview of these propositions and of the constitutional 
 provisions on which they are based, there is no distinction between 
 private and municipal corporations. 
 
 Now for the application of these propositions to the case before 
 us. The act of the general assembly under which the corporate au- 
 thorities of Cincinnati proceeded to make the annexations of outside 
 territory which they claimed to have made and consummated, is "# 
 special act." It does not purport to be otherwise. Its language is: 
 "Be it enacted by the general assembly of the state of Ohio, that the 
 corporate limits of the city of Cincinnati shall be as follows: Com- 
 mencing at the mouth of the Little Miami river, thence northeast- 
 wardly," etc. And now but one question remains. Does this special 
 act assume to confer upon the corporation of the city of Cincinnati 
 additional corporate powers powers which, as a municipal corpora- 
 tion, she did not previously possess? The answer is plain. It does 
 assume to confer, on certain prescribed conditions, the power of mu- 
 nicipal government, the power of police regulation, the power of 
 judicial jurisdiction, and the powers of assessment and taxation, over
 
 74 LIMITS ON POWER TO CREATE. 363 
 
 a number of outlying suburban incorporated villages, and of other 
 territory hitherto subjected to no jurisdiction except such as belongs 
 to the township, county and state organizations. 
 
 A majority of the court are of opinion that the act is clearly in 
 contravention of the restrictive provisions of the constitution, and, 
 therefore, of no binding force and validity. 
 
 And here I might properly stop ; yet, for the purpose of excluding 
 a possible conclusion, I will, on my own individual responsibility, say 
 one word more. It may be asked, Do we intend to include township 
 and county organizations in the category with municipal and other 
 corporations proper? The question is not involved in the present 
 case, and so it is not properly before us ; but, if it were, I apprehend 
 the answer to it would readily be found in the case of the Commis- 
 sioners of Hamilton County v. Mighels, 7 Ohio St. 109, 1 where it is 
 held that a county is not properly a corporation, but that "it is at 
 most but a local organization, which, for purposes of civil administra- 
 tion, is invested with a few functions characteristic of a corporate ex- 
 istence." 
 
 Judgment of ouster. 
 
 SCOTT, WELCH and DAY, JJ., concurred. 
 
 WHITE, J., did not concur. 
 
 Note. See, 1878, State v. Maloy (City of Council Grove), 20 Kan. 619; 1880, 
 School Districtv. Insurance Co., 103 U. S. 707 ; McGregorv. Baylies, 19 Iowa 43. 
 
 Sec. 74 (4) Title and special privileges. 
 
 "The legislature shall pass no bill embracing more than one 
 subject, and that shall be expressed in the title ; nor shall any pri- 
 vate or local bill be passed granting to any corporation, association 
 or individual any special or exclusive right, privilege, immunity or 
 franchise whatsoever. ' ' 
 
 JOHN JACOB ASTOR ET AL., RESPONDENTS, v. THE ARCADE RAIL- 
 WAY COMPANY, APPELLANT. 2 
 
 1889. IN THE COURT OF APPEALS OF NEW YORK. 113 New 
 York Reports 93-115. 
 
 Appeal from an interlocutory judgment of the general term of the 
 supreme court in the first judicial department, entered upon an order 
 made May 18, 1888, which reversed a judgment of special term sus- 
 taining a demurrer to the complaint herein and dismissing said com- 
 plaint, and which overruled said demurrer. (Reported below, 48 
 Hun 562.) 
 
 This action was brought by plaintiffs, who are the owners bf the 
 
 1 Supra, p. 214. 
 
 1 Arguments omitted.
 
 364 ASTOR V. THE ARCADE RY. CO. 74 
 
 property fronting upon Broadway and Madison avenue, in the city of 
 New York, to restrain the construction by defendant of a railway 
 under the surface of said streets, which the complaint alleged de- 
 fendant was about to attempt to do, claiming authority under the act 
 (ch. 312, Laws of 1886), which act the complaint alleged to be un- 
 constitutional and void. 
 
 EARL, J. The sole question for our determination is whether the 
 defendant has legal authority to construct and operate a railway under 
 Broadway and Madison avenue in the city of New York. The de- 
 fendant traces its corporate existence to the act, chapter 842 of the laws 
 of 1868, entitled "An act to provide for the transmission of letters, 
 packages and merchandise in the cities of New York and Brooklyn 
 and across the North and East rivers by means of pneumatic tubes, 
 to be constructed beneath the surface of the streets and public places 
 in said cities and under the waters of said rivers." The first section 
 of the act authorized and empowered Alfred E. Beach and other per- 
 sons named, and their assigns, "to lay down, construct and maintain 
 one or more pneumatic tubes in the soil beneath the surface, squares, 
 avenues and public places, in the cities of New York and Brooklyn 
 and under the bed of the waters of the East river between the said 
 cities, and also under the bed of the w r aters of the North river from the 
 city of New York to the shore of New Jersey, but at such depth as 
 not to interfere with navigation ; and to convey letters, parcels, pack- 
 ages, mails, merchandise and property in and through said tubes for 
 compensation, by means of vehicles to be run and operated therein by 
 the pneumatic system of propulsion ; and to the end that the public 
 convenience may be promoted in the operation of said vehicles, the 
 said persons and their assigns are also hereby authorized and required 
 to erect upon the sidewalks of the said streets, squares, avenues and 
 public places suitable ornamental lamp-posts, boxes, pillars or recept- 
 acles, not exceeding thirty inches in diameter, connected with said 
 pneumatic tubes for the deposit of letters, packages and property to 
 be transmitted therein." And it provided that the tubes should not 
 extend through any vault, nor under any sidewalk fronting on private 
 property, without the consent of the owners of such private property, 
 and compensation to them, which should be ascertained and deter- 
 mined, in .case the parties could not agree, in the manner provided in 
 the general railroad act of 1850. Section 2 provided that the pneu- 
 matic tubes should be so constructed as to have a mean interior diam- 
 ter of not exceeding fifty-four inches. 
 
 Section 5 authorized the persons named in the act to hold a meet- 
 ing and determine the terms and conditions upon which the powers, 
 privileges and franchises conferred by the act might be transferred to 
 a corporation to be organized as provided in the next section, and sec- 
 tion 6 provided that in case the persons attending the meeting named 
 in the prior section should so determine, they might organize them- 
 . selves into a corporation in the manner specified in the general manu- 
 facturing act of 1848, and the acts amendatory thereof, " for the 
 purpose of constructing and maintaining the pneumatic tubes afore-
 
 74 LIMITS ON POWER TO CREATE. 365 
 
 said and using and operating the same as hereinbefore authorized," 
 and that the corporation so organized shall "possess all the powers 
 and privileges conferred by said acts and be subject to all the duties 
 and obligations imposed therein, not inconsistent with the provisions 
 of this act." 
 
 In August, 1868, in pursuance of the powers conferred by the act, 
 the persons therein named organized themselves into a corporation by 
 the name of "The Beach Pneumatic Transit Company," and in the 
 certificate executed and filed by them, they declared that the object 
 of the corporation was "to construct and operate pneumatic railroads 
 in the cities of New York and Brooklyn and under the waters of the 
 North and East rivers, and to exercise all the powers, privileges and 
 franchises conferred upon said corporation by the act" of 1868, that 
 the capital stock should be $5,000,000 and that the corporation should 
 continue in existence for the term of fifty years. The certificate could 
 give the corporation no greater powers than were conferred by the act 
 of 1868, and to that act we must look for the scope and measure of 
 its powers. 
 
 The act did not confer railroad powers upon the corporation, and 
 did not subject it to any of the railroad acts, except for the purpose 
 of ascertaining the compensation to be paid to the owners of 
 property interests .in the streets. It authorized the formation of a 
 manufacturing corporation, with the incidents, powers and duties of 
 such a corporation, so far as they were consistent with the purposes 
 of the act. The corporation formed was, in fact, a manufacturing 
 corporation, not, however, with the general power to engage in any 
 manufacturing business, but for the sole purpose of constructing, 
 maintaining, using and operating the pneumatic tubes. The forma- 
 tion of such a corporation was a matter fairly embraced within the 
 title of the act. It was an appropriate instrumentality to accomplish 
 the purposes of the act, and in no sense a new and independent sub- 
 ject. The legislature, having authorized the construction and opera- 
 tion of the pneumatic tubes, could, in the act itself, have created the 
 corporation, or could have authorized its organization under any of 
 the general laws of the state adapted to the formation of any business 
 corporation ; and the formation of such a corporation would be ger- 
 mane to the main purpose of the act as indicated by its title. While 
 the general manufacturing laws regulated the corporation as to its 
 mode of existence, its manner of action and its corporate life and 
 being generally, yet all its powers and duties related and were con- 
 fined to the construction, maintenance, use and operation of the pneu- 
 matic tubes; and, therefore, section 1 6 of article 3 of the constitu- 
 tion, -which provides that "no -private or local bill "which may be 
 passed by the legislature shall embrace more than one subject, and 
 that shall be expressed in the title," was not, as contended on behalf 
 of the plaintiffs, violated. 
 
 What do the words pneumatic tubes mean ? They convey to our 
 minds no other meaning than that of tubes for the transmission of 
 parcels operated by atmospheric pressure applied within the tubes.
 
 366 ASTOR V. THE ARCADE RY. CO. 74 
 
 The parcels may be transmitted outside the tubes upon vehicles at- 
 tached to a piston operated within the tubes by atmospheric pressure, 
 or they may be transmitted within the tubes by atmospheric pressure 
 applied behind them. But they are in no sense railways. Such a 
 tube may contain vehicles placed upon wheels, and the wheels may 
 run upon rails or in grooves, and yet the structure could not, accord- 
 ing to the popular sense, or in any legal sense, be what is generally 
 known as a railway. The tubes may be so constructed that in a tech- 
 nical or scientific sense the structure might be called a railway ; and 
 so, too, any structure upon which vehicles may be moved upon rails, 
 however peculiar or small, may in some limited sense be called a rail- 
 way, and yet it may not be a railway within the meaning of the constitu- 
 tion and the general laws of the state. When they speak of railways they 
 always mean railways either for the general carriage of property or 
 of passengers, or of both, and a railway which may be operated in 
 small pneumatic tubes by atmospheric pressure for the transmission of 
 small packages is not within such meaning 1 . 
 
 Such was the character and status of the corporation organized un- 
 der the act of 1868. That act was amended by the act, chapter 512, 
 of the laws of 1869, entitled "An act supplementary to chapter 842, 
 of the laws of 1868, in relation to carrying letters, packages and mer- 
 chandise by means of pneumatic tubes in New York and Brooklyn," 
 but there is nothing in that act pertinent to the present discussion. 
 
 From 1868 to the commencement of this action in 1886, so far as 
 this record discloses, nothing whatever was done by the corporation 
 except to change its name several times and to procure acts of the 
 legislature purporting to enlarge its powers and extend its corporate 
 life. No pneumatic tubes have been constructed, and it is a fair in- 
 ference from the admitted facts that the system for the pneumatic 
 transmission of property was before the year 1873 found to be im- 
 practicable. It had been tried in various parts of Europe, but had 
 proved a failure, and for the general transmission of property or pas- 
 sengers was in the year 1873 nowhere in use. (Chamber's Encyclo- 
 pedia, titles, "Atmospheric Railway" and "Pneumatic Dispatch," 
 Encyclopedia Britannica, title "Atmospheric Railway," Appleton's 
 Cyclopedia, title "Atmospheric Railway," Johnson's Cyclopedia, 
 title, "Pneumatic Transmission.") 
 
 In 1873 the persons interested .in the corporation, as we may infer, 
 being aware of its insufficiency for any practical purpose, concluded 
 to procure an enlargement of its powers, and a radical change in its 
 character and purposes, and, therefore, they obtained the passage of 
 the act (chapter 185), entitled "an act supplemental to and amenda- 
 tory of chapter 842 of the laws of 1868, an act entitled 'an act to 
 provide for the transmission of letters, packages and merchandise in 
 the cities of New York and Brooklyn, and across the North and East 
 rivers by means of pneumatic tubes, to be constructed beneath the sur- 
 face of the streets, squares, avenues and public places, in said cities, 
 and under the waters of said rivers,' passed June i, 1868, and of chap- 
 ter 512 of the laws of 1869, entitled 'an att supplementary to chapter
 
 74 LIMITS ON POWER TO CREATE. 367 
 
 842 of the laws of 1868 in relation to carrying letters, packages and 
 merchandise by means of pneumatic tubes in New York and Brook- 
 lyn, and to provide for the transportation of passengers in said 
 tubes.' ' The last phrase of this title "and to provide for the trans- 
 portation of passengers in said tubes" did not appear in the title of 
 the act of 1869, and yet in the act in all its stages through the legis- 
 lature, as approved by the governor, filed .in the office of the secre- 
 tary of state and printed in the session laws, the quotation marks are 
 so placed as to make the phrase appear to be a part of that title. The 
 title of the act, therefore, was well calculated to deceive any persons 
 to whose attention it came while the act was under consideration in 
 the legislature. But we will assume that this title is to have the same 
 force and effect as if that of the act of 1869 had been properly quoted, 
 and then the only addition to the titles of the prior acts is the final 
 phrase above quoted, and the only subject expressed in the title is 
 the transportation of property and passengers in pneumatic tubes. 
 
 This title is assailed by the plaintiffs as not in compliance with sec- 
 tion 1 6 of article 3 of the constitution above quoted. A particular 
 examination of the provisions of the act is, therefore, necessaiy. The 
 first section provides that it shall be lawful for the Beach Pneumatic 
 Transit Company "to construct, maintain and operate an underground 
 railway for the transportation of passengers and property," under 
 Broadway and Madison avenue, "by means of tubes of enlarged in- 
 terior diameters sufficient for the construction of a railway or railways 
 therein, and for the running of cars and the carrying of passengers 
 therein, and also to construct, in connection with said tubes, two or 
 more tracks of railway with the necessary turnouts and stations for the 
 ingress and egress and accommodation of the passengers, and for the 
 receipt and discharge of packages and freight and said company shall 
 have the right and privilege, subject to the approval of the board of 
 engineer commissioners hereinafter provided for, to make connection 
 with the Harlem and connecting railroads at any point deemed best, 
 at or above Forty-second street, and also to make connection with the 
 Hudson River Railroad at any point northerly of Fifty-ninth street." 
 
 Section 2 provides that the passenger tubes shall, as far as practica- 
 ble, follow the center line of the streets, and shall not occupy in the 
 aggregate a greater space than thirty-one feet in width by eighteen 
 feet in height, exterior measurement, and that they shall be laid and 
 constructed under the supervision of a board of three engineer com- 
 missioners, whose duty it is to see that the "passenger tubes and rail- 
 ways" are constructed in a thorough and workmanlike manner; and 
 that they shall constitute a board of commissioners, a majority of 
 whom "shall determine whether the pneumatic system or other mo- 
 tive power shall be adopted by said corporation for the propulsion of 
 the cars running within said passenger tubes." 
 
 Section 4 authorizes the corporation to acquire the title to such real 
 estate or interest therein as may be necessary to enable it to construct, 
 operate and maintain "said tubes and railways," and to construct and 
 maintain the proper platforms, stations and buildings at such points
 
 .368 ASTOR V. THE ARCADE RY. CO. 74 
 
 along the route of its tubes as may be convenient and suitable for the 
 ingress and egress of its passengers and for the receipt and discharge 
 of freight and packages, and necessary for the successful operation of 
 "said tubes and railway, and for the proper connections between said 
 tubes and railways, platform, stations and buildings;" and in case the 
 corporation is unable to agree with the owners of real estate for the 
 purchase and use thereof, it is authorized to acquire the title to the 
 same in the manner provided in the general railroad act of 1850; and 
 in all cases the use of the streets, avenues, squares, grounds and pub- 
 lic places, and the right of way under the same for the purpose of 
 "said tubes and railway or railways therein," shall be considered and 
 is declared to be a public use. 
 
 Section 5 provides that "it shall be lawful for said corporation to 
 convey passengers on said railway or railways through said tubes for 
 hire." and regulates the rate of fare that may be charged. 
 
 Section 6 provides that the corporation shall commence active oper- 
 ations in the construction of its works within six months after the 
 passage of the act, and shall complete the section of passenger tubes 
 with two railway tracks from Bowling Green to Fourteenth street 
 within three years, and shall complete the remainder of the passenger 
 tubes, as authorized, within five years thereafter. 
 
 Section 7 provides that the corporation shall not construct any sta- 
 tion, depot or other building, or work above the surface of any land 
 belonging to the city of New York, either in its own right or as a 
 trustee, without the consent of the mayor and aldermen, but that 
 nothing in the act shall be construed to authorize the mayor and alder- 
 men to donate, lease or sell any portion of any of the ground surface 
 of any public park in the city beyond what may be absolutely neces- 
 sary for the exit from and entrance to the railroad. 
 
 Section 9 provides that the corporation shall possess "all the pow- 
 ers and be subjected to all the duties and liabilities imposed on rail- 
 road corporations by the laws of this state not inconsistent with the 
 charter of this company or the purposes of its incorporation." 
 
 Here we read nothing of pneumatic tubes or of propulsion by atmos- 
 pheric pressure, or even pneumatic railways. We read of passenger 
 tubes, but we must not be deceived by the juggle of words. We find 
 authorized a grand underground railway, not less than fifteen miles 
 long, with two or more tracks, turn-outs, platforms, stations, buildings 
 and other appurtenances, with power to connect with surface steam 
 railroad, to be operated through passage-ways called tubes, eighteen 
 feet in height and thirty-one feet in width, exterior measurements; in 
 fact, tunnels which could not be operated by atmospheric pressure. 
 What was before a manufacturing corporation was converted into a 
 railroad corporation, or, at least, had superadded the powers, privi- 
 leges, duties and liabilities of railroad corporations under the general 
 laws of the state, with authority, by the consent of the engineer 
 commissioners, to use, for the movement of its cars, horses, steam or 
 any other motive power. The construction of such a railway by such 
 a corporation is certainly a subject not expressed in the title of the
 
 74 LIMITS ON POWER TO CREATE. 369 
 
 act. The only subject there indicated is the transportation of pas- 
 sengers and property through pneumatic tubes by atmospheric pressure. 
 A title purporting that an act provides for pneumatic transportation 
 would not be sufficient for an act authorizing the construction and 
 operation of a horse railway or a steam railway, as a title purporting 
 that an act authorizes a line of omnibuses for the transportation of 
 passengers would not be sufficient for an act authorizing the construc- 
 tion of a railway for the same purpose. 
 
 The constitutional provision referred to has been deemed by states- 
 men and jurists, conditores legum, of so much importance that it is 
 found in the fundamental laws of most of the states. Its purpose is 
 to prevent fraud and deception by concealment, in the body of acts, 
 subjects not by their titles disclosed to the general public and to legis- 
 lators who may rely upon them for information as to pending legis- 
 lation. When the subject is expressed, all matters fairly and reason- 
 ably connected with it. and all measures -which will or may facilitate 
 its accomplishment, are proper to be incorporated in the act and are 
 germane to the title. The title must be such, at least, as fairly to 
 suggest or give a clue to the subject dealt with in the act, and unless 
 it comes up to this standard it falls below the constitutional require- 
 ment. (Mayor, etc., v. Colgate, 12 N. Y. 146; People v. Hills, 35 
 N. Y. 449, 452; Matter of New York, etc., Bridge, 72 N. Y. 527; 
 Matter of Application of Department of Public Parks, 86 N. Y. 439; 
 People v. Whitlock, 92 N. Y. 191 ; Matter of Knaust, 101 N. Y. 188; 
 Cooley's Constitutional Limitations 141.) Here the only subject sug- 
 gested by the title is the transportation of passengers and property 
 through pneumatic tubes, by atmospheric pressure, and everything ap- 
 propriate and germane to that subject could be provided for in the act. 
 
 But a person reading the title alone would have no clue whatever 
 to the great railway scheme actually authorized by the act ; and so the 
 corporators themselves evidently regarded the act, for, finding that 
 the corporation had outgrown its name, "The Beach Pneumatic Tran- 
 sit Company," they, by the act, chapter 503 of the laws of 1874, had 
 it changed to "The Broadway Underground Railway Company, " and 
 in that act what were before called "tubes" are called "tunnels;" 
 and ten years later, by an order of the proper court, the name was 
 again changed to the "New York Arcade Railway Company." 
 While by the acts of 1874, chapter 454 of 1881 and chapter 312 of 
 1886, the charter of the corporation was amended and its powers 
 greatly enlarged, pneumatic tubes, propulsion by atmospheric pressure 
 and pneumatic railways are nowhere mentioned, and all that is left as a 
 result of all the legislation is a grand scheme for underground railways 
 operated by any motive power except such as shall emit "smoke, gas or 
 cinders" which, if carried into effect, would, doubtless, be one of the 
 marvels of the world. But if it is as desirable and safe as it is mar- 
 velous, it should be placed upon a constitutional basis and make an 
 undisguised appeal upon its merits for the public sanction. 
 
 Our conclusion, therefore, is that the act of 1873 for the insufficiency 
 24 WIL. CASES.
 
 37O ASTOR V. THE ARCADE RY. CO. 74 
 
 of its title is unconstitutional and void, and hence all subsequent legis- 
 lation based upon that act must fall with it. When the act of 1886 
 was passed, under which the defendant proposes to lay down its tracks 
 and to construct its underground railways, it had no power to con- 
 struct an underground railway for the transportation of passengers and 
 general freight through tunnels, and, therefore, that act is in conflict 
 with section 18 of article 3 of the constitution, which forbids the legis- 
 lature to pass a private or local bill granting to any corporation the 
 right to lay down railroad tracks or to construct a street railroad, ex- 
 cept upo*n conditions mentioned in that section. (Matter of N. Y. Dis- 
 trict R. Co., 107 N. Y. 42.) 
 
 We need go no further. The conclusion already reached renders 
 it unnecessary to solve the various other questions argued with much 
 ability and learning by the able counsel who appeared before us. 
 
 The judgment should be affirmed with costs. 
 
 GRAY, J. I concur with EARL, J., in his opinion that the act of 
 1873 was unconstitutional and void, in that it failed to comply with 
 section 16 of article 3 of the constitution. But I am further of the 
 opinion, assuming that the act of 1873 was valid, and that there was an 
 acceptance of and a valid compliance with its conditions, and that 
 there was a waiver of causes of forfeiture by the passage of the act of 
 1886, that the latter act was in violation of the provisions of the consti- 
 tutional amendment, which went into effect on January i, 1875. By 
 that amendment the legislature 'was inhibited from passing a pri- 
 vate or local bill, granting to any corporation the right to lay doivn 
 railroad tracks, or any exclusive privilege, immunity or franchise 
 ivhatever. The act of 1886, under which the appellant claims to have 
 acquired its present rights, can not, in my view of what it grants, be 
 upheld as legislation which merely regulates the exercise of powers 
 formerly granted to and possessed by an existing corporation. It 
 went far beyond that. It was, in fact, a new grant of substantive 
 rights, in addition to and differing from what might have been claimed 
 under the act of 1873. By the act of 1873 the company would have 
 had a right to construct a railway in tubes, which should not oc- 
 cupy a greater space than thirty-one feet in width, by eighteen feet in 
 height, exterior measurements. The company could not have ap- 
 proached within two feet of the curb line, nor within eighteen feet of 
 the building line. These restrictions must be deemed to be important 
 limitations and wholesome provisions, designed for the protection of 
 the rights of the abutting property-owners and to secure to the public 
 the rightful enjoyment of the streets as such. By the act of 1886 they 
 would possess the right to excavate for their railways a space of forty- 
 four feet, inside measurements, in width, and without any limitation 
 as to depth. They might construct railways without the use of tubes 
 or tunnels, and use any motive power which would not permit of the 
 emission of smoke, gas or cinders. 
 
 I think we have here a pretty wide departure from the rights and 
 powers to be enjoyed under the act of 1873. The pneumatic tube 
 of a diameter of fifty-four inches, for the transportation of packages
 
 74 LIMITS ON POWER TO CREATE. 
 
 and merchandise, authorized under the original charter of 1868, and 
 which was transmuted by the act of 1873 into a tubular passenger 
 and freight railway, has now wholly disappeared, and in its place ap- 
 pears a scheme for what amounts to a complete occupation of the 
 street for railway purposes, except so far as it leaves a roof over the 
 excavation to take the place of the street surface. This grant of right 
 to excavate the street to an extent practically unlimited, and the per- 
 mission to abandon tubes and to construct railways in the excavations 
 are matters of grant too serious in their nature and consequences, un- 
 der the circumstances of the case, to be passed over as in mere regu- 
 lation of an existing franchise. To allow such legislation is, in my 
 opinion, to nullify the beneficial and protective objects aimed at by 
 the constitutional amendment of 1875. 
 
 Under the guise of an amendment, there was a legislative grant to 
 this company of franchises and privileges beyond any naturally fol- 
 lowing upon, or flowing from, those granted under the act of 1873, 
 not in harmony with the spirit of that grant, and of necessity, exclu- 
 sive in their nature. It, therefore, fell within the prohibition of the 
 constitutional amendment. 
 
 When the people have, by amending the constitution, restricted the 
 powers of their respresentatives in the legislature to pass private or 
 local bills, which grant the right to lay down railroad tracks, or any 
 exclusive privileges or franchises to a corporation, the courts should 
 see to it that the constitutional limitation is not evaded, under the 
 pretense of an amendment of the charter. They should scrutinize 
 the legislative act complained of, not with the idea of seeking the 
 way to a construction adverse to its constitutionality, but rather to up- 
 hold it, if possible. But if the scrutiny reveals a real and serious 
 violation of the constitutional provisions, they must condemn the act 
 as invalid. 
 
 It is said, however, that a scope of action is offered for the legisla- 
 ture, with respect to corporations already in the possession of corpo- 
 rate rights, acquired under statutes passed before the adoption of the 
 constitutional amendment. As a general proposition this is true. 
 Conceding to the legislature its full measure of authority to legis- 
 late, under the general grant of power by the constitution of the state, 
 we hold that such authority, when now exercised by a private bill in 
 behalf of a corporation, can not, under the guise of measures for 
 the regulation of the exercise of the corporate powers and franchises, 
 be zipheld by the court, when, by a practical construction, the act per- 
 mits what the amendment to the constitution prohibits, A regulation 
 of these powers and franchises, when the act touches them so as 
 to alter them, means their restriction rather than their enlargement. 
 If enlargement of powers may be sometimes consistent with the con- 
 stitutional limitations, it may not go to the extent of trenching on the 
 territory of private and public rights, over which the constitution 
 was plainly intended to operate in its limitations. When enlarge- 
 ment of corporate powers becomes indistinguishable from a grant of 
 new substantive rights, within the purview of the section in question,
 
 3/2 ASTOR V. THE ARCADE RY. CO. 74 
 
 then the mischief is accomplished, to prevent which the constitutional 
 amendment was designed. 
 
 In the Matter of the Gilbert Elevated Railway Company (70 N. Y. 
 361), Church, Ch. J., in discussing the changes of structure, etc., 
 made by the commissioners under the provisions of the rapid transit 
 act, said the changes were restrictive in their character. "By the 
 charter the whole street was to be covered by the structure ; by the 
 conditions imposed only a portion of some streets could be oc- 
 cupied." And he says in that connection: "I can not accede to the 
 proposition that any change in the structure and in the manner of oc- 
 cupying the streets, however restrictive upon the company, or bene- 
 ficial to the public in the use of the streets, constitutes a fresh grant 
 of the right to lay down railroad tracks. It is a misnomer to call such 
 restrictions grants of any right whatever. As well might the cutting 
 down of a fee to a life estate be termed a grant of land." Again he 
 says: "No exclusive right or franchise was granted to the respondent 
 corporation upon any construction of the clause. Every substantial 
 right existed before the passage of the act, and the conditions imposed, 
 embracing changes of structure and mamrer of occupying streets, 
 should be regarded as restrictive of existing rights, and not grants, of 
 rights or franchises within the constitutional sense. * * * This 
 series of amendments designed to restrict the powers of the legislature 
 in matters of detail, under general phrases and undefined words, is 
 experimental in this state. They must be sustained and applied by a 
 rational and practical construction, so as to subserve the purposes in- 
 tended, and prevent the evils designed to be remedied ; but not, by an 
 artificial and technical construction, to extend their application to 
 cases never contemplated." 
 
 I think the meaning of the decision is clear. If the legislative act 
 operates upon a charter in the direction of a regulation, an adjust- 
 ment or a restriction of powers possessed, it could not be objection- 
 able. Within its reserved powers the legislature may, at all times, 
 amend or alter the charter, but the constitutional amendment will not 
 permit it by a private bill to make any new grant of rights, compre- 
 hended within those specified by the amendment. I do not think that 
 it can be said, in the present case, that every substantial right given 
 by the act of 1886 existed previously. 
 
 For the reasons I have briefly given, I think the act of 1886 prac- 
 tically gave to this corporation a right to lay down railroad tracks, 
 which it could not have exercised under the act of 1873, and, also, 
 gave what are practically exclusive privileges. I think it contravened 
 the constitution, in the letter and in the spirit, and is therefore void. 
 
 All concur with EARL, J. ; RUGER, Ch. J., DANFORTH and PECK- 
 HAM, JJ. , concur with GRAY, J. 
 
 Judgment affirmed.
 
 75 LIMITS ON POWER TO CREATE. 373 
 
 Sec. 75. (5) Two-thirds vote required. 
 
 "The assent of two-thirds of the members elected to each branch 
 of the legislature shall be requisite to every bill creating, continu- 
 ing, altering or renewing any body politic or corporate." 
 
 Note. See Warner v. Beers, Thomas v. Dakin, Falconer y. Campbell and 
 Green v. Graves, supra, pp. 2, 19, 287, 292, and notes there given.
 
 SUBDIVISION II. THE BODY CORPORATE, ITS PARENTAGE THE 
 
 PROMOTERS. 1 
 
 CHAPTER 4. 
 
 FUNCTIONS AND CLASSES OF PROMOTERS. 
 Sec. 76. Definitions. 
 
 In the English Companies Act, 7 and 8 Viet., c. 120 (1844), the 
 expression "promoter" or "promoter of a company" (is declared) to 
 apply to every person acting by whatever name in the forming and es- 
 tablishing of a company at any period prior to the company obtaining 
 a certificate of complete registration provided for. The same act pro- 
 vided that before proceeding to make public, either by prospectus, 
 hand-bill or advertisement, any intention or proposal to form any com- 
 pany, it should be the duty of the promoters to make to the registra- 
 tion office returns as \$> the name of the proposed company, its pur- 
 pose and the names, occupation, place of business and place of resi- 
 dence of the promoters ; the promoters were also to file a written state- 
 ment consenting to become such promoter, and a written contract en- 
 tered into with some one or more persons as trustees for the company, 
 to take one or more shares; also, afterward to file a statement as to 
 provisional place of meeting, names of members of the committee in 
 the formation of the company, names of the officers of the company, 
 names of subscribers, copy of prospectus, etc. 
 
 The method of formation of English companies now, under the 
 companies act of 1862 (25 and 26 Viet., c. 89), is much the same as 
 was provided by the act of 1844, although "promoter" is not defined 
 or used in the act of 1862. See, also, Directors' Liability act of 1890, 
 53 and 54 Vic., c. 64, 3, ch. 2. 
 
 1892. In 2 Stimson's American Statute Law, art. 802, 8021, it 
 is said "the petition for incorporation or articles may be made by a 
 number of persons. * * * Such persons are in this work termed 
 the promoters ; in some states they are called petitioners, in other com- 
 missioners." 
 
 "A promoter is a person who brings about the incorporation and 
 organization of a corporation. He brings together the persons who 
 become interested in the enterprise, aids in procuring subscriptions, 
 and sets in motion the machinery which leads to the formation of the 
 
 1 Upon the subject of promoters generally, their relation to each other, to 
 the corporation, to the members and to third parties, see infra, pp. 1546-1558, 
 1767-1769. 
 
 (374)
 
 77 FUNCTIONS OF PROMOTERS. 3/5 
 
 corporation itself." 2 Cook Stock and Stockholders, 651, 3d ed., 
 p. 910. 
 
 t; The constitution of a company is merely a means to an end, 
 the carrying on by the company of some business, the building of a 
 pier or a railway. * * * It is the person called a promoter who 
 determines what this end shall be, and who sets the statutory ma- 
 chinery of formation in motion. Promoter is a term not of law, but 
 of business, summing up a number of business operations familiar to the 
 commercial world by which a company is generally brought into ex- 
 istence. * * * Preparing or settling the prospectus, forming the 
 company, negotiating agreements between vendors and a proposed 
 company, providing directors, making contracts for the company or 
 otherwise actively engaging either alone or in co-operation with others 
 in the formation of a joint stock company will make a man a promo- 
 ter. * * * The promoter has in his hands the creation and mould- 
 ing of the company. He has the power of defining how and when, 
 and in what shape and under what supervision it shall start into exist- 
 ence and begin to act as a trading corporation." 3 Ency. of the 
 Laws of England, p. 182. t 
 
 See 4 Am. and Eng. Ency., 201; Beach, 269, 270; Clark, ch. iv; Cook, 
 650. 705; Elliott, 51-62; Morawetz, 234, 291,545; Taylor, ch. v; 1 
 Thompson, 415-490, vii Ib., 8282-8291 ; 1828, Frankfort S. T. Co. v. 
 Churchill, 6 T. B. Mon. (Ky.) 427, 17 Am. D. 159; 1846, Reynell v. Lewis, 
 15 Mees. & W. 517; 1877, Bagnall v. Carlton, 6 Ch. D. 371; 1877, Er- 
 langer v. New Sombrero P. C., 5 Ch. D. 73, 3 App. C. 1218; 1878, Emma Silver 
 Mining Co. v. Grant, 11 Ch. D. 918; 1879, Emma Silver Mining Co. v. Lewis, 
 L. R. 4 C. P. D. 396; 1884, Perry v. Little Rock, etc., R., 44 Ark. 383; 1891, 
 South Jopl in L. Co. v. Case, 104 Mo. 572; 1892, Bosher v. Richmond, etc., 
 Co., 89 Va. 455, 37 Am. St. R. 879; 1894, Yale Gas S. Co. v. Wilcox, 64 Conn. 
 101. 25 L. R. A. 90; 1895, Whetstone v. Crane Bro., 1 Kan. App. 320, 41 Pac. 
 211; 1896, Fountain Spring Park Co. v. Roberts, 92 Wis. 345, 53 Am. St. R. 
 917; 1898, Gaines v. McAlister, 122 N. C. 340; 1898, Milwaukee Cold S. Co. 
 v. Dexter, 99 Wis. 214; 1898, Benton v. Minneapolis T., etc., Co., 73 Minn. 
 4<s. 76 N. W. 265; 1898, Exter v. Sawyer, 146 Mo. 302, 47 S. W. 951; 1898, 
 Loudenslager v. Woodbury H. L. Co., 56 N. J. Eq. 411, 41 Atl. 1115; 1899, 
 Hudson v. West, 189 Pa. St. 491, 42 Atl. 190; 1899, Honsucle v. Ruppin, 172 
 Mass. 420, 52 N. E. 538; 1900, Hay ward v. Leeson, 176 Mass. 310, 49 L. R. A. 
 725. 
 
 Sec. 77. Self-constituted. Functions generally. Illustration. 
 
 THE ST. LOUIS, FORT SCOTT AND WICHITA RAILROAD COMPANY 
 v. FRANCIS TIERNAN. 1 
 
 1887. IN THE SUPREME COURT OF KANSAS. 37 Kansas Reports 
 
 606-636. 
 
 [Error from district court. Action by Tiernan against the corpo- 
 ration on a note for $10,000, and an account for $4,600, all for salary 
 as president and general manager of the railroad company. Judgment 
 
 1 Statement of facts abridged. Only that part of opinion relating to pro- 
 moters given.
 
 3/6 ST. LOUIS, ETC., R. CO. V. TIERNAN. 77 
 
 in the lower court for plaintiff. Motion for new trial overruled, and 
 defendent brings error.] 
 
 Opinion by SIMPSON, J. * * * Condensing the documentary and 
 oral evidence into a brief summary, and reciting both in chronological 
 order, the material facts are as follows : The note svied upon by the 
 plaintiff below was executed by the president of the railroad company, 
 and it was claimed that this was done in pursuance of a resolution of 
 the board of directors, adopted at a meeting held on the loth day of 
 March, 1882. The authority of the president to execute the note is 
 denied by a verified answer. As this is one of the most vigorously con- 
 tested questions in the case, we pass it for the present. The residue of 
 the plaintiff's demand against the railroad company consisted of a claim 
 for salary as president and general manager from March 7, 1882, to 
 March 7, 1884, at an established rate of $5,000 per year; and about 
 this part of the claim there does not seem to be much controversy. The 
 answer of the defendant below alleges that Tiernan and Ayers were 
 promoters, incorporators and directors of the railroad company, and 
 that Tiernan was its president and active manager; that while acting 
 in that capacity, he and Ayers, on the i2th of January, 1881, pur- 
 chased from one M. S. Carter, a road-bed of a defunct railroad cor- 
 poration extending from Fort Scott to Humboldt, at its full value for 
 $15,000, and then, in collusion with other certain officers and directors 
 of the St. Louis, Fort Scott and Wichita Railroad Company, sold it 
 to that company for the sum of $200,000 cash or its equivalent, and 
 $3,600,000 of the capital stock of said company; that this was done 
 in violation of their obligations and duties as officers of said railroad 
 company, and that the stock was of par value, and defendant prays 
 for a judgment against Tiernan for $3,804,600.95. 
 
 For some years before the organization of the St. Louis, Fort 
 Scott and Wichita Railroad Company, there had been graded a road- 
 bed with some bridges built on it from Fort Scott to a little distance 
 beyond Humboldt, by an organization known as the Fort Scott, 
 Humboldt and Western Railroad Company. The length of this 
 road-bed was about forty-four miles. The company which had 
 graded the road-bed and built the bridges had failed, and one M. S.F. 
 Carter had foreclosed the mortgage against it, and bid in its prop-\ 
 erty, consisting of the road-bed and bridges, and had become the ; 
 absolute owner thereof. On the i7th of February, 1880, Carter sold 
 this road-bed to Francis Tiernan and Alexander M. Ayers, together 
 with all maps and profiles in the possession or in the control of Car- 
 ter, of said line of road between Fort Scott and Humbolt, and thence 
 westward or southwestward through the state of Kansas. The 
 consideration of this sale was the sum of $15,000 to be paid as fol- 
 lows: One thousand dollars within ninety days, and $14,000 within 
 one year, and the additional agreement that the said Tiernan and 
 Ayers were to commence within thirty days to procure the unsecured 
 right of way over which the said road-bed or line of railroad was 
 originally surveyed, established and partially graded, and all deeds
 
 77 FUNCTIONS OF PROMOTERS. 377 
 
 and contracts for the right of way, side tracks and switches, depot 
 grounds, tanks and stock yards were to be taken in the name of M. 
 S. Carter, and were to inure to his benefit and to be absolutely his 
 until Tiernan and Ayers paid in accordance with the terms herein 
 specified, and Tiernan and Ayers agreed that within ninety days 
 they would use their best endeavors to secure aid to said road, by 
 procuring bonds to be voted by the various municipalities through 
 which said line would pass in Bourbon and Allen counties, and that 
 all such aid procured in the construction of a railroad from Fort 
 Scott to Humboldt should accrue to the benefit of Carter and become 
 his property if they should fail to pay him as specified. The terms 
 of this agreement were reduced to writing and signed by the parties 
 on the ryth day of February, 1880. The first $1,000 was paid on 
 the I4th of May following. On the 23 day of February, 1880, the 
 charter of the St. Louis, Fort Scott and Wichita Railroad Company 
 was filed in the office of the secretary of state. It was signed and 
 acknowledged by Francis Tiernan and Alexander M. Ayers in Cham- 
 paign county, Illinois, on the 2Oth day of January, 1880. On the 
 20th day of February, 1880, the company was organized at Fort 
 Scott by the election of Francis Tiernan as president, Alexander 
 M. Ayers as vice-president and Ira D. Bronson as secretary. 
 
 On the i yth day of April, 1880, Tiernan and Ayers sold to John J. 
 Franklin, of Philadelphia, one-third interest in the road-bed known 
 and called the Fort Scott, Humboldt and Western Railroad, com- 
 mencing at Fort Scott and running to Humboldt, the estimated dis- 
 tance being forty-four miles, for the consideration of $25,000. Of 
 that amount $5,000 was to be paid as soon as Franklin could examine 
 the title and approve it, and the sum of $20,000 was to be paid within 
 eight months. When Franklin paid the $5,000 he was to be elected 
 treasurer of the St. Louis, Fort Scott and Wichita Railroad Company. 
 Some time during the month of May, 1880, the St. Louis, Fort Scott 
 and Wichita Railroad Company made an agreement to purchase the 
 old road-bed of the Fort Scott, Humboldt and Western Company, 
 and it is this agreement which is hereafter referred to in the minutes 
 of the meeting of the directors of the St. Louis, Fort Scott and Wichita 
 Railroad, held on November 12, 1880. On the i2th day of Novem- 
 ber, 1880, the directors of the St. Louis, Fort Scott and Wichita Rail- 
 road adopted a resolution approving and confirming the contract of 
 Tiernan, Ayers and Franklin, of the sale by them, and the purchase 
 by the company, of the road-bed, etc., ordering the issue and delivery 
 of the stock, and the execution and delivery of orders for cash or first 
 mortgage bonds, as provided in the agreement of sale. On the 3d 
 day of December, 1880, Franklin sold to Ira J. Bronson all his right, 
 title, interest and claim in and to the St. Louis, Fort Scott and Wichita 
 Railroad Company, and the old road-bed, etc. On the 6th day of 
 March, 1881, at a meeting of the stockholders of the St. Louis, Fort 
 Scott and Wichita Railroad Company, the following resolution was 
 adopted, by a vote of all the stockholders present, in its favor: 
 1 "Be it resolved, That all actions of the board of directors of the
 
 ST. LOUIS, ETC., R. CO. V. TIERNAN. 77 
 
 St. Louis, Fort Scott and Wichita Railroad Company, in relation to 
 selling and disposing of the capital stock of said railroad, and receiv- 
 ing payment therefor in the manner and kind in which such payments 
 were made, be and they are hereby approved and ratified." 
 
 The road-bed was paid for by issuing to Francis Tiernan, Alexan- 
 der M. Ayers and Ira J. Bronson, or his assignee, each $1,200,000 
 of paid-up capital stock, and an order on the railroad company in 
 favor of each one of these persons for $66,666.66^3 in cash, or first 
 mortgage bonds, but the order for cash or bonds was in no manner to 
 become a lien on that part of the road mnning from Fort Scott to a 
 point where it crosses the Kansas City, Lawrence and Southern Kan- 
 sas Railroad in Allen county. At the time of these various transac- 
 tions about the old road-bed there had been no amount of the capital 
 stock of the railroad company issued, the first being issued to one L. 
 M. Bates, "of New York, in December, 1880. Bates was an assignee 
 of Ira J. Bronson for a part of Bronson' s share of the stock of the 
 purchase of the road-bed. * * * 
 
 Plaintiff in error contends (inter alia) : 
 
 Fourth. Tiernan and Ayers, occupying the positions hereinbefore 
 recited, bought an old road-bed which the company needed, for $15,- 
 ooo, and for the purpose and with the intention of selling it to the 
 company, with an agreement among themselves, Bronson and Hill, 
 divided the profits of the transactions, sold it to the company for $200.- 
 ooo cash and $3,600,000 of the company's capital stock, and then 
 cai'ried out their agreement about the division of profits. The com- 
 pany is entitled to recover of Tiernan the difference between the price 
 paid by him and Ayers for the road-bed and that at which they sold it 
 to the company, 
 
 Fifth. Tiernan and Ayers did not disclose to any of their associ- 
 ate directors, except Bronson and Hill, the price paid by them for the 
 road-bed, and the other five directors had no knowledge on that sub- 
 ject. Such a transaction will not be upheld when it is challenged in 
 a proper action by the company. 
 
 Sixth. Tiernan took $3,600,000 of the company's capital stock in 
 the manner above set forth, and in a proper action by the company 
 he is answerable to it for the par value of the stock, and judgment 
 should be rendered against him accordingly. 
 
 Seventh. Tiernan was a director from the time of the organization 
 of the company down to the time of the commencement of the action 
 to recover for the matters hereinbefore referred to, and, as, during all 
 that time he was trustee for the company, statutes of limitation did 
 not commence to run as long as that relation continued. * * * 
 )( i. Some very important questions grow out of the purchase of the 
 road-bed by Tiernan and his associates, and their sale of it to the rail- 
 road company. It is alleged in the answer of the railroad company, 
 that at the time the purchase was made Tiernan was one of the in- 
 corporators and directors of the company, and occupied such a position 
 toward the company that whatever dealings he had respecting the 
 road-bed resulted to the benefit of the corporation, or that, if this is
 
 77 FUNCTIONS' OF PROMOTERS. 379 
 
 not so, then if he made the sale to the company while acting in the 
 capacity of president and director, he was bound to disclose the price 
 he paid, the profit he was making and that the whole transaction 
 must be characterized by fair, open and unmistakable candor in all 
 its features. The first question we shall discuss is were the defend- 
 ants in error, Tiernan and Ayers, corporate fiduciaries at the time 
 they purchased the road-bed ? They signed and acknowledged the 
 charter of the St. Louis, Fort Scott and Wichita Railroad Company 
 on the 2Oth day of January, 1880, at Champaign county, state of 
 Illinois. It was filed with the secretary of state on the 23d day of 
 February, 1880. The contract of purchase of the road-bed was made 
 on the 1 7th day of February, 1880. It thus appears that the road-bed 
 was purchased before the railroad company had any existence. Sec- 
 tion 10, chapter 23, of the Compiled Laws of Kansas, 1885, being 
 the act concerning private corporations, is as follows: "Section 10. 
 The existence of the corporation shall date from the time of filing 
 the charter, and the certificate of the secretary of state shall be evi- 
 dence of the time of such filing." This express statutory declaration 
 determines the fact that the railroad company had no existence prior 
 to the 23d day of February. Important legal consequences flow from 
 this determination. The legislature has prescribed the act that gives 
 life to a corporation, and the date of the performance of that act is 
 the birthday of its creation. From the moment of the filing of the 
 charter with the secretary of state, the duties and obligations of those 
 named as its first directors began. There would not have existed 
 any fiduciary relations before that time, because there was no corpo- 
 ration in existence to create them. It is clear, then, that at the time 
 they made the purchase of the road-bed they were not directors, and 
 did not occupy such a relation of confidence and trust to this railroad 
 company that this purchase was presumably for its benefit, or by 
 operation of law resulted in its favor. All such theories and consid- 
 erations are swept out of our pathway by the vigorous terms of the 
 statute. 
 
 It is sometimes the case that parties who are dealing with each 
 other about the organization of a corporation make such declarations 
 or give such pledges respecting its future creation that causes of action 
 arise between them which must be settled in accordance with the recog- 
 nized rules of law with reference to contracts, agency or partnership. 
 There is nothing developed in the record which justifies the assertion 
 that such causes of action arose against Tiernan and his associates on 
 behalf of others who participated in the organization. We do not be- 
 lieve that any one would seriously contend for a single moment that 
 there is such a statement of facts in the record that, if Tiernan had 
 refused to sell his road-bed to the railroad company, it could have en- 
 forced the sale. To make him responsible in this action there must be 
 an affirmative showing that at the time he made the purchase he was 
 either acting for and on behalf of the company, or that he so assumed 
 to act, or that he occupied such a relation of trust and confidence with 
 respect to the company that his purchase resulted to its benefit, and
 
 380 ST. LOUIS, ETC., R. CO. V. TIERNAN. 77 
 
 not to his own profit. The first we regard as impossible, because at 
 that time the company had no existence, and hence he could not have 
 acted on its behalf or authority, and for the same reason he could not 
 have assumed to act for a corporation when there was none in being. 
 
 2. It is alleged in the answer of the railroad company that Tiernan 
 was a promoter of the railroad company, and the same statement is 
 repeated in the briefs with italicized vigor, and great stress seems to 
 be laid upon the assumed fact. This word -promoter had its origin 
 irz the methods by -which joint-stock companies were formed in Eng- 
 land, where, by law, they -were declared partnerships. Subsequently, 
 when the era of railroad building began in that country, the busi- 
 ness of promoting the organization of such companies assumed defi- 
 nite form. The ordinary proceeding was this : The promoter in- 
 trodticed the enterprise to the notice of persons of wealth in the 
 locality through which the line of the road was proposed to be located, 
 informing them of its nature and prospects, and furnishing an 
 estimate of its probable cost. These persons were solicited to aid by 
 their influence, or subscriptions, or both. Enough persons were 
 secured to constitute a provisional committee, and then this commit- 
 tee appointed from their number a managing committee, which 
 issued a prospectus, announcing the nature and probable profits of 
 the scheme, the proposed means to carry it out, the amount of capital 
 required, the number and price of shares and other details to which 
 were generally attached the names of the promoters, with references 
 to the names of those persons constituting the provisional committees. 
 If all this resulted in fair probabilities of success, application was 
 then made to parliament for a bill of incorporation. If the scheme 
 failed, the expenses incurred gave rise to litigation, and many ques- 
 tions as to the liability of these committees and of the promoters were 
 determined. If the incorporation was secured by the action of parlia- 
 ment, then another class of questions arose as to what acts of the 
 promoters could be ratified by, and what acts resulted to the benefit 
 of, the incorporation, and many others growing out of the condition 
 of affairs; that that has no resemblance to our method of organizing 
 corporations. It is true that the word has been found to have its 
 uses in our jurisprudence, but in a much more restricted sense than 
 that used in the English reports. 
 
 The American cases upon this subject are not very numerous, and 
 most all of them will be found in the 16 American Law Review, and 
 in Morawetz on Corporations, vol. i, p. 545. Assuming that a pro- 
 moter is a person who organizes a corporation, and that he intends to 
 sell it property, or to subscribe for its stock, or to take an active part 
 in its management, and business, let us inquire whether there are suf- 
 ficient facts recited in this record to determine that the fiduciary re- 
 lation of promoter of this corporation was ever assumed by Tiernan, 
 or whether his acts in respect to its organization were such that a re- 
 lation of this character could fairly be inferred. To start on, there is 
 not one single word of parol testimony which can be fairly said to au- 
 thorize an inference that Tiernan was the promoter of the corpora-
 
 77 FUNCTIONS OF PROMOTERS. 381 
 
 tion. It does not appear that he ever advised or suggested the 
 organization of the company. In the next place, there is nothing in 
 very many voluminous written instruments in the record that justifies 
 any such inference. The charter itself would seem to rebut any such 
 conclusion so far as Tiernan was concerned, as it was signed and ac- 
 knowledged by him in the state of Illinois. There is nothing to jus- 
 tifv the allegation in the answer of the railroad company, or the as- 
 sumption of its counsel in their briefs, that Tiernan was a promoter of 
 the company. 
 
 There is in the written agreement between Tiernan, Ayers and 
 Franklin, whereby a one-third interest in the road-bed purchased by 
 them from Carter was sold to Franklin, an understanding on the part 
 of Franklin that if Tiernan and Ayers wish to sell the road-bed to the 
 St. Louis, Fort Scott, 1 and Wichita Railroad Company, Franklin will 
 join in the conveyance of it to the company, if his share of the pur- 
 chase-money is not less than $40,000, but this agreement was made 
 on the yth day of April, 1880, after the purchase by Tiernan and 
 Ayers, and after the organization of the company ; so that we can not 
 utilize this fact to establish a relation as existing before the railroad 
 company had any corporate life. There is no evidence that Tiernan 
 was a promoter. 
 
 3. At the time of the sale of the road-bed to the railroad company 
 Tiernan was part owner of the road-bed, and was a director and 
 president of the railroad company, and hence it is very properly said 
 that the sale must be a fair, open one in all respects, the price paid 
 by Tiernan and his associates must have been disclosed to the directors 
 of the company, and the whole transaction must not only be for the 
 evident interests of the company, but it must have been conducted in 
 all its stages in the utmost good faith on the part of the directors, and 
 with a complete knowledge of the time when, the circumstances under 
 which, and the exact amount paid by Tiernan at the date of his pur- 
 chase, to be relieved of that suspicion with which courts of justice 
 universally regard a transaction in which the seller and the buyer are 
 represented by one and the same person. It has been decided that a 
 director is not prohibited from dealing with his company ; he can sell 
 it real estate or any other kind of property, but there are certain rules 
 strictly applicable to him that do not operate upon a person entirely 
 disconnected with the corporation, and these he must faithfully ob- 
 serve to make his contract of sale one that the law will uphold. (Hotel 
 Company v. Wade, 97 U. S. 13; Morawetz on Corporations, 297, 
 521, 545; Simmons v. Vulcan Oil Co., 61 Pa. St. 202; Van Cott v. 
 Van Brunt, 82 N. Y. 535 ; Parker v. Nickerson, 137 Mass. 487.) 
 
 It has been decided, time and time again, that the owner of a mine, 
 an oil well or a valuable patent, can organize a corporate company to 
 develop mineral or oil, or to manufacture the patented article, take a 
 very large amount of stock in payment of his mine, oil well or patent, 
 and trust to the value given the stock by the success of the corporation 
 for payment of his labor and discovery. In this class of cases there 
 is a mere transfer of the status of the mine, oil well or patent. It
 
 382 ST. LOUIS, ETC., R. CO. V. TIERNAN. 77 
 
 ceases to be personal property, and becomes corporate property, and 
 each individual interest, as well that of the owner, discoverer or pat- 
 entee, is represented by shares of stock. 
 
 It is now decided in this case that the owners of a graded railroad- 
 bed can sell the same to a railroad company whose officers and directors 
 are composed of the same identical persons who own the road-bed, 
 and issue the capital stock of the railroad company in payment thereof, 
 at a time when those who sell the road-bed and own and control the 
 railroad corporation are the absolute owners of all the stock issued by 
 the railroad company, and when the terms of sale and the issue of 
 stock are matters of record on the books of the railroad company, 
 and when this transaction occurs months before any other or additional 
 stock is issued by the company, that parties owning an old railroad 
 grade with culverts and some bridges erected thereon, and who organ- 
 ize, control, manage and own a railroad company, whose stock at the 
 time of the issue has no market but only a nominal value, can trans- 
 fer the railroad grade to the railroad company and issue the stock of 
 the company in the payment therefor, they, and they alone, at that 
 time being the only persons interested in the road-becl and in the rail- 
 road company. At the time of the sale of the railroad grade or old 
 road-bed it was owned by Tiernan, Ayers, Bronson and Hill, and 
 they in fact constituted the railroad company. There were some other 
 directors, but the evidence is that just sufficient stock was placed in 
 the name of the other directors to authorize them to act as such, and 
 this transfer was but temporary, and for that sole purpose. This sale 
 was ratified by the directors of the railroad company, and subsequently 
 by the stockholders, but the directors, stockholders and owners of the 
 road-bed were one and the same persons. By this transaction the 
 value of the road-bed was represented by the stock of the railroad 
 company, instead of remaining as the personal estate of the owners. 
 
 At the time of the sale, and when the board of directors ordered 
 the issue of the obligations and stock of the company in payment of 
 the purchase-price of the road-bed, the record affirmatively shows 
 that all the persons who had any interest of any kind or character 
 whatever in the railroad company, except Bates, the assignee of part of 
 Bronson's stock, were Tiernan, Ayers, Bronson and Hill. They owned 
 the road-bed, they constituted the railroad company, they sold the road- 
 bed to the railroad company and took the stock of the railroad company 
 in payment, at a time when witnesses on both sides concede that the stock 
 had only a nominal value. The developments in this record abun- 
 dantly show that the title to and possession of the road-bed were of 
 great pecuniary benefit to the railroad company. . It alone enabled 
 the company to construct the first fifty miles of its road, and to make 
 such a beginning that its future success and final accomplishment 
 were assured. The record does not show that there has ever been any 
 other stock issued by the railroad company, except small amounts to 
 municipalities through whose territory the line was built, and that it 
 is owned, managed and controlled to-day by the amount of stock 
 issued to pay for this road-bed. Tiernan and his associates sold their
 
 78 FUNCTIONS OF PROMOTERS. 383 
 
 stock to Gould, in August, 1882, for a consideration of $100,000, so 
 that now, so far as it appears, the value of the stock issued represent- 
 ing a completed road one hundred and fifty miles in length, is much 
 k-ss than the actual cost of the road-bed. The railroad company, in 
 this action, represents this stock, and it seeks to retain it. It has the 
 use and enjoyment of the road-bed, and wants to recover from Tier- 
 nan the par value of the stock, being the sum of $3,600.000. 
 
 It is useless to pursue the discussion further, as it is not controlled, 
 or governed, or affected in any degree by those self-evident, equitable 
 principles and unyielding rules of law that govern in all cases where 
 persons sustain fiduciary relations to corporations, or to other persons, 
 by reason of their being representatives of their pecuniary interests. 
 This case involves the proposition as to whether or not the absolute 
 owners of property can, when it seems to them to be to their profit, 
 so change the relation of their property as to make it stock in a cor- 
 poration. Whoever succeeded to the rights of Tiernan and his asso- 
 ciates as the holders of the stock, did so with all the facts showing the 
 sale and purchase of the road-bed and the issue of the obligations and 
 stock of the railroad company spread upon its record, and have now 
 no right to complain, however different the case may be if they had 
 then an interest in the corporation. This same issue in its most im- 
 portant features has very recently been tried and decided by the cir- 
 cuit court of the United States for the district of Kansas, in the action 
 of E. R. Stewart v. The St. Louis, Fort Scott and Wichita Railroad 
 Company, a manuscript opinion of Judge Foster's having been fur- 
 nished us. Stewart brought his action to recover on several promis- 
 sory notes issued by the railroad company, aggregating $85,000. 
 These notes constituted a part of the $200,000 that was to be paid in 
 cash, or its equivalent, for the road-bed, and a $5,000 note issued to 
 Hill for salary as general manager. The same defenses which are 
 made here were set up in that action. The circuit court rendered 
 judgment for the full amount claimed by'Stewart, overruled all the de- 
 fenses and discussed veiy many of the questions alluded to in this 
 opinion, with the same result. 
 
 We see no material error in the record, and recommend that the 
 judgment of the district court be affirmed. 
 
 BY THE COURT: It is so ordered. All the justices concurring. 
 
 See note supra, p. 375- 
 
 Sec. 78. Same. 
 
 MARCHAND v. THE LOAN AND PLEDGE ASSOCIATION. 
 
 1874. IN THE SUPREME COURT OF LOUISIANA. 26 La. Ann. Re- 
 ports 389-90. 
 
 Appeal from the fifth district, parish of Orleans. 
 WYLY, J. Plaintiff sued defendant for the sum of $4,000 for 
 services, etc., as alleged, viz:
 
 384 MARCH AND V. THE LOAN, ETC., ASSOCIATION. 78 
 
 "That, as a preliminary to the formation of said corporation, your 
 petitioner, at the instance of the stockholders and members thereof, 
 visited the cities of New York, Philadelphia and Boston for the pur- 
 pose of acquainting himself with the proper formation and efficient 
 management and practical operation of similar institutions in said 
 cities, and that in order to do so he was compelled to expend for his 
 traveling expenses, for consultation with counsel and for obtaining in- 
 formation considerable sums of money, and that he is entitled to be 
 paid for the value of his time and services expended during said visit, 
 which consumed some eight weeks, and that said expenses and said 
 loss of time and services amount to the sum of $1,000. 
 
 "That petitioner furnished the charter for said corporation and gave 
 zealous and efficient aid in presenting the same to the legislature, in 
 obtaining subscribers to the capital stock thereof, in organizing said 
 corporation, in putting it in successful operation, in fitting up its place 
 of business, in the purchase and erection of fixtures therefor, and in 
 the performance of its business and management of its affairs for one 
 month after it commenced operations, and that his services in that be- 
 half are well worth the further sum of $3,000." 
 
 The answer is a general denial, and the averment that the associa- 
 tion is not liable for services rendered before it went into operation as. 
 a corporation. 
 
 The court gave judgment for the plaintiff for $208.33, the value 
 of one month's service as president in organizing the company. From 
 this judgment plaintiff appeals. 
 
 We see no error in the judgment. A claim for money expended 
 and time employed, before the incorporation of the Loan and Pledge 
 Association, can not be regarded as a debt of the institution. 
 
 How the defendant, a juridical person, incurred a debt before its 
 existence we can not imagine. 
 
 Besides, it is shown that $1,000 of the plaintiff's claim was for 
 cash advanced to S. F. Casanave for the purpose of influencing legis- 
 lation ; that is, bribing the legislature to pass the act incorporating the 
 Loan and Pledge Association. 
 
 For the recovery of money thus expended this court can give no 
 relief. The guilty suitor must be left where his immorality has placed 
 him. 
 
 Judgment affirmed. 
 
 Note. See, also, 1889, Minneapolis T. M. Co. v. Davis, 40 Minn. 110, 41 N. 
 W. 1026, 12 Am. St. Rep. 701, 3 L. R. A. 796, infra, p. 492, and note, supra, 
 p. 375.
 
 79 FUNCTIONS OF PROMOTERS. 385 
 
 Sec. 79. Statutory. Commissioners. 
 
 WALKER v. DEVEREAUX ET AL. 
 
 1833. IN THE COURT OF CHANCERY OF NEW YORK. 4 Paige's 
 Chancery (New York) Reports 229-257. 
 
 [Application for an injunction to restrain defendants from holding 
 an election of directors of the Utica and Schenectady Railroad Com- 
 pany, and also from disposing of stock which had been apportioned 
 to them, or in which they were interested. The defendants were 
 commissioners named in the act to incorporate the railroad company, 
 to open books, receive subscriptions to the stock, distribute the same, 
 and call a meeting for the election of directors, the act providing that: 
 All persons who shall become stockholders pursuant to this act shall 
 be and they are hereby constituted a body corporate by the name, 
 etc. (Laws of 1833, p. 462, et seq.) There were, within the time 
 limited, 2909 subscriptions received, and the stock was distributed to 
 only 1423 of those who subscribed, and the others were notified to 
 receive back the preliminary deposit paid. Plaintiff had received his 
 money back. Some of the shares that had been distributed had been 
 sold to bona fide purchasers. The complaint was that the commis- 
 sioners had wrongfully recognized themselves as subscribers and had 
 arbitrarily distributed the stock to themselves and their friends.] 
 
 THE CHANCELLOR (WAL WORTH). The act under which the com- 
 missioners opened books of subscription to the capital stock of the 
 Utica and Schenectady Railroad Company did not create a corpora- 
 tion, eo instanti, when that act took effect as a law. It only consti- 
 tuted such persons a body corporate as should thereafter become 
 stockholders in the manner prescribed in the act. If the whole cor- 
 porate stock, and no more, had been subscribed within the three days 
 during which the commissioners were bound to keep the books open, 
 then those persons who had thus subscribed and paid their money to 
 the commissioners would have acquired legal rights as corporators. 
 And they would also have had the right to call upon the commission- 
 ers, not as their agents or trustees, but as agents or officers of the 
 public, to notify an election of directors, and to preside as inspectors 
 thereof, by a committee of their body, as directed by the act. But in 
 the event which has happened, of an excess of subscriptions, no per- 
 son can be a stockholder of the corporation, neither does any corpo- 
 ration exist, nor has any person any interest in the stock, as the legal 
 owner thereof, so as to authorize him to vote upon it, or to transfer it 
 as stock, until a majority of the commissioners have proceeded to ap- 
 portion the same, and to designate the persons who are to be the 
 stockholders, and the amount which each is to receive. It is evident, 
 therefore, if the counsel for the complainant are right in supposing 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted. 
 26 WIL. CASES.
 
 386 WALKER V. DEVEREAUX. 79 
 
 that the distribution in this case was absolutely void, and not merely 
 voidable, that the election of directors, which they now seek to re- 
 strain by injunction, can not possibly affect the rights of their client. 
 As there could be neither a corporation nor stockholders in existence 
 until after the stock was apportioned, the commissioners did not hold 
 the stock, nor did they act in the character of officers, servants, agents 
 or trustees of the corporation or of the subscribers. But they acted 
 merely as officers or agents of the government, appointed by the leg- 
 islature to assist in the organization of a corporation and to create a 
 stock in the same. The legislature might, by law, have designated 
 the stockholders, as they had done in the case of other corporations, 
 or they might have delegated that portion of their authority to others. 
 But as they did not delegate that power to the courts, neither this or 
 any other court has the power to create a corporation by designating 
 who shall be the persons to hold stock in the same. 
 
 The appropriate tribunal, however, upon a proper application, may 
 compel the commissioners to open books, to apportion the stock in 
 the manner prescribed by law, and to notify and, by a committee of 
 their body, preside at the election of the directors. Such a tribunal 
 may also decide as to the proper construction of the act of incorpora- 
 tion, and can enforce a compliance with such decision. If the ap- 
 portionment of the stock in this case was absolutely void, as the 
 complainant insists it was, he has mistaken his remedy. He should, 
 in that case, have applied to the supreme court for a mandamus to 
 compel these public officers, or agents of the legislature, to distribute 
 the stock, as required by the statute. And if it was necessary to apply 
 to this court, either for a discovery or an injunction, in aid of, or as 
 ancillary to his remedy at law, he should have stated in the bill either 
 that he had applied, or that he intended to apply to the legal tribunal 
 for relief. (Jones v. Jones, 3 Meriv. Rep. 173.) 
 
 I apprehend, however, the complainant is under a mistake in sup- 
 posing that the apportionment of stock in this case was absolutely 
 void. It was, at the most, voidable, even upon the principles upon 
 which the complainant supposes it was absolutely void. And if any 
 portion of the stock has been apportioned to persons who ought not 
 to hold it, or if any one has received more than his share, under cir- 
 cumstances which would amount to a fraud upon the commissioners, or 
 upon the law, such persons must be deemed to hold it for the benefit 
 of all or some of the subscribers who have received no stock, or who 
 have not received stock to the extent of their subscriptions. * * * 
 
 It was not necessary in this case that the commissioners should give 
 to each subscriber an equal or any other amount of stock. Where a 
 distribution or apportionment is to be made between or among any 
 number of persons, or a class of individuals, and no discretion is 
 vested in those who are to execute the power of making the distribu- 
 tion or apportionment, each individual of the whole number, or class 
 of persons named, is entitled to an equal share. But if the designa- 
 tion of a class or number of persons is made merely for the purpose of
 
 79 FUNCTIONS OF PROMOTERS. 387 
 
 pointing out those from whom the selection is to be made, giving to 
 the person intrusted with the power a discretionary right of distribut- 
 ing among that particular class as he shall think proper, then the 
 whole may be allotted to one or more of that class, to the exclusion of 
 the others. Formerly the question as to the right of the person in- 
 trusted with the power to exclude any one of the class designated, by 
 giving what was called an illusory portion, was frequently agitated in 
 the courts, and produced much litigation. But the Revised Statutes 
 have forever put that question at rest in this state. 
 
 By the 98th and 99th sections of the article relative to powers, it is 
 declared, that where a disposition under a power is directed to be 
 made to, or among, or between several persons, without any specifi- 
 cation of the share or sum to be allotted to each, all the persons 
 designated shall be entitled to an equal portion. But when the terms 
 of the power import that the estate or fund is to be distributed be- 
 tween the persons so designated in such manner or proportions as the 
 trustee of the power shall think proper, the trustee may allot the 
 whole to any one or more of such persons, in exclusion of the others. 
 (i R. S. 774, and Revisors' Report on ch. i, pt. 2, p. 61.) Al- 
 though the power in the present case was to be exercised by these 
 commissioners as the officers or agents of the public, and not strictly 
 in the character of mere trustees of a power in trust, yet, as the leg- 
 islature had established this general principle as one of the fundamen- 
 tal rules of construction in reference to powers, I must presume they 
 meant the same rule of construction should be adopted in relation to 
 the power granted to or conferred upon these commissioners. The 
 only restriction imposed upon them, therefore, was that they should 
 exercise the power according to the best of their judgment, and appor- 
 tion the stock to such of the subscribers, and in such proportions, as a 
 majority of them should deem most advantageous to the interests of 
 the corporation. And there is no allegation in this bill from which I 
 have a right to infer that the complainant believes they have not distrib- 
 uted the stock in this manner. Although it is alleged that the com- 
 plainant is informed, and believes, .they have distributed the stock 
 principally among themselves and their relatives and friends, it would 
 only be in accordance with the principles of human nature, were we 
 to conclude, from that circumstance alone, they honestly believed 
 that they and their friends would be more likely to appoint directors 
 who would manage the concerns of the corporation well, than others 
 would if the control of the corporation should be given to their oppo- 
 nents. In this, perhaps, they may have acted" under a mistake, but 
 that alone is not sufficient to authorize an interference with their dis- 
 tribution. Where a discretion is to be exercised according to certain 
 fixed legal principles, especially when that discretion is to be exer- 
 cised by a person or body acting as a court of justice, if the person or 
 body intrusted with the power has mistaken the law, or violated such 
 fixed legal principles, it may be a proper case for review and correc- 
 tion by the appropriate tribunal.
 
 388 VALKER V. DEVEREAUX. 79 
 
 But if the legislature has intrusted the exercise of the power to the 
 sole judgment and discretion of a particular person or body of indi- 
 viduals, no court is authorized to interfere with or control that discre- 
 tion, provided it is exercised in good faith. In the recent case of 
 The King, ex reL Scales, v. The Mayor and Aldermen of London (3 
 Barn. & Adolph. Rep. 271), the late Lord Tenterden says, "if a 
 matter is left to the discretion of any individual or body of men, who 
 are to decide according to their own conscience and judgment, it 
 would be absurd to say that any other tribunal is to inquire into the 
 grounds and reasons on which they have decided, and whether they 
 have exercised their discretion properly or not." The same principle 
 is recognized in the case of The King v. The Justices of Norfolk ( i 
 Neville & Man. Rep. 67), and in a variety of cases in our own 
 courts. This point was also expressly decided by the vice-chancellor 
 of the first circuit in the case of The Brooklyn Bank (i Edwards' Ch. 
 Rep. 371) where the powers of the commissioners were the same, 
 substantially, as in the present case. Chancellor Sanford also ad- 
 mitted the correctness of this principle in the case which was before 
 him relative to the distribution of the stock in the Commercial Bank 
 of Albany ; although he very properly decided that it was not applica- 
 ble to the case then under consideration. (Meades v. Walker, i 
 Hopkins' Rep. 591.) It is not necessary for the decision of the pres- 
 ent motion that I should consider the question whether the commis- 
 sioners could themselves become subscribers for the stock of the cor- 
 poration. But as that question has been fully argued, it may save 
 expense to the parties, and prevent further litigation in this case, if I 
 proceed to dispose of that objection to the distribution at this time. 
 
 The general principles, that a trustee can not traffic in the subject 
 of his trust, that no person shall be a judge in his own cause, and that 
 a public officer can not do an act which is inconsistent with the duty 
 he owes to another, or to the public, are well understood. And it 
 certainly does seem to be inconsistent with these principles that 
 the legislature should, in any case, permit commissioners for the dis- 
 tribution of stocks to decide between themselves and others what por- 
 tion of such stock shall belong to the commissioners and what part 
 they shall award to other subscribers. It certainly would better ac- 
 cord with these leading principles of law were the legislature to state, 
 in express terms, what portion of the whole stock each commissioner 
 should be permitted to take, and to prohibit him from taking, either 
 directly or indirectly, any greater share, except in a case of deficiency 
 in the amount subscribed. But where it was in the power of the legis- 
 lature to give all the stock to certain individuals who had already be- 
 come subscribers therefor, as was the case in relation to many of the 
 early acts creating joint-stock companies, the legislature might un- 
 questionably confer the power upon such individuals of deciding how 
 much of such stock they would keep themselves and how much they 
 would apportion to others. The question here is, whether the legis- 
 lature, in the case now under consideration, expected or intended that
 
 79 FUNCTIONS OF PROMOTERS. 389 
 
 these twenty-one commissioners named in the act of incorporation 
 should be permitted to subscribe for and receive a part of the stock of 
 this company. 
 
 The fundamental principle to be observed in the construction of 
 statutes, is to discover, if possible, the true intention of the law-giver. 
 And when that intention is ascertained, the court is bound to give 
 effect to such intention, whatever opinion the judge may entertain as 
 to the wisdom or policy of the law ; provided such intention does not 
 contravene any principle of the constitution or transcend the powers of 
 the legislature. * * * It is therefore proper to refer to the provisions 
 of the several acts authorizing commissioners and others to receive sub- 
 scriptions for and to distribute the stock of moneyed and other corpo- 
 rations, and to the known usage under such statutes, for the purpose, 
 of ascertaining whether the legislature intended that the commission- 
 ers in this case should be excluded from subscribing *or receiving any 
 portion of the stock, on account of the peculiar nature of their official 
 duties in the distribution of the stock in case of an excess. The case 
 of Haight et al. v. Day et al. (i Johns. Ch. Rep. 18), came before this 
 court, in 1814, upon a complaint against the commissioners for the 
 distribution of the stock in the Catskill Bank, under a provision in the 
 act of incorporation very similar to that which is now under consider- 
 ation. The complaint in that case was that there was a gross in- 
 equality in the apportionment among the subscribers ; and that the 
 distribution was principally confined to the commissioners themselves, 
 their relations and favorites^ The bill also charged that the appor- 
 tionment was unjust, fraudulent and corrupt. Yet, upon the answer 
 of the defendants merely denying that they were governed by any 
 improper motive in the execution of their trust, and alleging that they 
 had apportioned the stock as they deemed discreet and proper, Chan- 
 cellor Kent dissolved the injunction and permitted them to proceed, 
 and to elect themselves directors to control and manage the institu- 
 tion. 
 
 It is suggested by the complainant's counsel that it does not appear 
 by the report of that case that the objection was there raised that it 
 was inconsistent with their character as commissioners to distribute 
 the stock to subscribe for and apportion a part thereof to themselves. 
 It appears to me, however, impossible to suppose the chancellor could 
 have overlooked this general principle, if he had considered it as ap- 
 plicable to the case, for, upon looking into the pleadings in that cause, 
 on file in the register's office, a more appropriate case for the enforce- 
 ment of that principle can hardly be conceived. The whole stock to 
 be distributed was 6,000 shares ; and more than six times that amount 
 was actually subscribed by one hundred and twenty-three persons, 
 including the twenty-two complainants, who subscribed between five 
 and six thousand shares. Yet the four commissioners took about one-half 
 of the stock to themselves, and gave all the residue, except 108 shares, 
 to nine of their nearest relatives by blood and marriage, and to two or 
 three other persons connected with them in business. And they dis-
 
 39O WALKER V. DEVEREAUX. /9 
 
 tributed the 108 shares among the complainants and others, by giving 
 one share to each. In a case so glaring, I can not believe my learned 
 and now venerable predecessor would have forgotton or have . hesi- 
 tated to apply this principle, if he had not been satisfied from the 
 course of legislation which had been adopted in relation to the distri- 
 bution of the stocks of incorporated companies, that there was some- 
 thing which took the case of commissioners and trustees for the dis- 
 tribution of such stocks out of the operation of the general rule. 
 Whether he was right in his construction of the law as to the powers 
 of the commissioners in such a case, it is useless now to inquire, as 
 his decision has been received and acted on as law ever since that 
 time. And the numerous prohibitions contained in subsequent acts 
 of incorporations, restricting the commissioners as to the number of 
 shares they shall be permitted to distribute to themselves, but with- 
 out giving them in terms the power to take any, show the understand- 
 ing of the legislature that such was the established law. 
 
 I must, therefore, conclude, from these circumstances, and also 
 from the fact, of public notoriety, that commissioners have always 
 been in the habit of apportioning a part of the stock to themselves ; 
 that the legislature did not intend the commissioners in this case should 
 be excluded from a participation in the stock of the company. As to 
 the amount taken by them, they have restricted themselves far below 
 the smallest maximum .which has ever been adopted by the legislature 
 in a similar case. I can not, therefore, say they have abused the 
 right of appropriating a portion of the capital stock of the company 
 to themselves. * * * 
 
 Injunction denied. 
 
 Note. See particularly : 1839, Crocker v. Crane, 21 Wend. (N. Y.) 211, 34 
 Am. Dec. 228; Beach, 519; Cook, 57; Elliott, 363; Morawetz, 64-68; 
 Taylor, 91 ; 1 Thompson, 1204-1250 ; 2 Thompson, 1368, 1540 ; 5 Thomp- 
 son, 5908, 6570. 
 
 Authority and functions of commissioners. 1. Their functions are of a 
 public character, and action will be compelled by mandamus. 1833, Walker 
 v. Devereaux, 4 Paige Ch. (N. Y.) 229, supra; 1851, In re, White River Bank, 
 23 Vt. 478. 
 
 2. As to those dealing with them, their authority is similar to that of an 
 agent with a special power of attorney. 1871, Nippenose Mfg. Co. v. Stadon, 
 68 Pa. St. 256. 
 
 3. As to the corporation, and subscribers, they are trustees, subject to con- 
 trol by courts of equity. 1831, Attorney-General v. Stevens, 1 N. J. Eq. 
 (Saxt.) 369, 22 Am. Dec. 526. 
 
 4. Their power is usually of a discretionary character. 1858, Thomas v. Cit- 
 izens' Pass. R. Co., 15 Leg. Int. (Pa.) 189; 18.58, Brower v. Pass. R. Co., 3 
 Phil. (Pa.) 161 ; generally so, in apportioning or allotting excessive subscrip- 
 tions. 1814, Haight v. Day, 1 Johns. Ch. (N. Y.) 18; 1832, Clarke v. Brook- 
 lyn Bank, 1 Edw. Ch. (N. Y.) 361; but sometimes it is not so: 1850, Van 
 Dyke v. Stout, 8 N. J. Eq. (4 Halst.) 333; 1856, Buffalo & N. Y. C. R. v. Dud- 
 ley, 14 N. Y. (4 Kern.) 336. When ministerial it can be delegated: 1848, 
 Lohman v. N. Y. & E. R., 2 Sandf. (N. Y.) 39; 1872, Saugatuck Bridge Co. v. 
 Westport, 39 Conn. 337, but see 1861, Shurtz v. Schoolcraft, etc., R., 9 Mich. 
 269, contra. 
 
 5. They usually act as a board, and a majority controls. 1839, Crocker v.
 
 80 FUNCTIONS OF PROMOTERS. 391 
 
 Crane, 21 Wend. (N. Y.) 211, 34 Am. Dec. 228; 1856, Penobscot R. Co. v. 
 White, 41 Maine 512, 66 Am Dec. 257. Acts of de facto boards, however, 
 making allotment to themselves only, have been held to be void. 1895, Shel- 
 lenberger v. Patterson, 168 Pa. St. 30, 31 Atl. 943. 
 
 6. Their authority continues till the subscription is completed. 1836, Lallandev. 
 Louisiana State Ins. Co., 9 La. 326. But ceases as soon as the subscription is 
 completed and organization takes place. 1854, Smith v. Bangs, 15 111. 399; 
 1858, Ellison v. Mobile & O. R. Co., 36 Miss. 572; 1858, James v. C., H. & D. 
 R. Co., 2 Disney (Ohio) 261. 
 
 7. In some states it is held the commissioners have exclusive authority to receive 
 subscriptions. 1811, Essex Turnpike Corp. v. Collins, 8 Mass. 292; 1861, 
 Shurtz v. Schoolcraft & T. R. Co., 9 Mich., 269; 1875, Parker v. Northern 
 Cent. M. R. Co., 33 Mich 23. But in other states it is held that any one may 
 take a subscription, provided it is accepted by the corporation. 1857, North- 
 eastern R. Co. v. Rodrigues, 10 Rich. Law (S. C.) 278; 1857, Walker v. Mobile 
 & 0. R. Co., 34 Miss. 245 ; 1876, Scarlett v. Academy of Music, etc., 46 Md. 132. 
 
 Sec. 80. Incorporators under general statutes. 
 NICKTJM v. BURCKHARDT. 1 
 
 1897. IN THE SUPREME COURT OF OREGON. 30 Oregon Reports 
 464-477, 60 Am. St. R. 822, 47 Pac. R. 888. 
 
 Opinion by Mr. Justice WOLVERTON. 
 
 This is an action to recover for assessments levied upon unpaid 
 capital stock of a private corporation. About June 18, 1893, some 
 thirteen persons, among whom were Guy Posson, who signed for two 
 shares; J. E. Juston, for four; F. C. Barnes, for ten; and H. Pease, 
 for three subscribed the following agreement, each placing opposite 
 his name the number of shares presumably intended to be taken : "We, 
 the undersigned, each in consideration of the promise of the other, 
 agree to subscribe for and take the number of shares of the capital 
 stock set opposite our respective names of a company to be incor- 
 porated for the purpose of operating a fertilizer, feeding and fatten- 
 ing stock and poultry, and if obtainable, collecting and disposing of 
 swill, and other purposes of like nature; said company to be incor- 
 porated in accordance with the laws of the state of Oregon, with a 
 capital stock of $15,000, divided into 150 shares of the value of $100 
 each." There were seventy-eight shares subscribed for upon this 
 paper, representing $7,800. On the 7th day of October, 1*93, three 
 of the subscribers executed, duly acknowledged, and caused to be 
 filed and recorded in the proper offices, articles of incorporation, in- 
 
 1 Opinion on rehearing upon the point as to estoppel omitted.
 
 NICKUM V. BtfRCKHARDT. 80 
 
 corporating the Oregon Fertilizing Company specifying the object and 
 business thereof to be "to transport wood, produce and garbage and 
 to cremate such garbage, or to use the same for feed or fertilizing 
 purposes." A little later, all the subscribers to said instrument, ex- 
 cept the four above named, signed with others the following writing, 
 which is contained in a minute book kept for the purpose of record- 
 ing the proceedings of the corporation to wit: "We, the under- 
 signed, hereby subscribe for the number of shares of capital stock of 
 the Oregon Fertilizing Company set opposite our respective names, 
 and agree to pay for the same at such time or times as may be ordered 
 by the board of directors hereafter to be elected." Only sixty-nine 
 snares of the capital stock were subscribed for upon this latter instru- 
 ment. Subsequently all the subscribers to this instrument, together 
 with Posson and Juston, signed an agreement to hold the first meet- 
 ing of the stockholders on October 14, 1893, waiving the thirty days' 
 notice required by law, and in pursuance thereof the meeting was 
 held, all said signers being present, either in person or by proxy, but 
 no others, and participated in the election of directors and other busi- 
 ness. The corporators having certified to the result of the election, 
 the directors elected took the oath of office, and at once organized by 
 electing the officers of the board. To abate the action, the defend- 
 ants plead that the plaintiff company is not an incorporation. 
 
 It was urged at the hearing that the defendants ought to be estopped 
 from alleging that the Oregon Fertilizing Company is not a corpora- 
 tion duly incorporated and organized in all respects as contemplated 
 by law, inasmuch as they are subscribers or purchasers of stock 
 subsequent to the alleged completed organization of the company; 
 that having dealt with the company in its corporate capacity, and hav- 
 ing entered into contractual relations with it, they have recognized 
 its existence as a body corporate, and that now, when sued upon their 
 obligation to it as such a body, they should not be permitted to deny 
 its legal existence. The doctrine here contended for is undoubtedly 
 well grounded in the law, but it can not be invoked in this case be- 
 cause not pleaded. The opportunity was affoi'ded for setting up the 
 supposed estoppel in the reply, but it was not done, and it is now too 
 late to assert it. It is said that "if a party who has an opportunity to 
 plead an estoppel upon which he relies fails to do so, but goes to issue 
 on the fact, he thereby waives the estoppel, puts the matter at large, 
 and the jury may disregard the estoppel, and are at liberty to find 
 the truth." Note to Tyler v. Hall, 106 Mo. 313, 27 Am. St. Rep. 
 337-346, 15 S. W. 319. To the same effect are Bruce v. Phoenix 
 Ins. Co., 24 Ore. 486, 34 Pac. 16; and Bays v. Trulson, 25 Ore. 109, 
 46 Am. & Eng. Corp. Cas. 386, 35 Pac. 26. 
 
 This question disposed of, we come to another, more complex in its 
 nature, and that is whether there has been an organization of the 
 plaintiff corporation under and in pursuance of the general statutes 
 providing therefor. The regularity of the execution and filing of the 
 articles of incorporation is conceded. The persons subscribing the
 
 80 FUNCTIONS OF PROMOTERS. 393 
 
 articles are known as the incorporators, and their powers and duties 
 are purely statutory. They may open books and receive subscriptions 
 to the capital stock; "they shall give notice to the subscribers to meet 1 * 
 at such time and place as they may designate for the purpose of elect- 
 ing directors ; they shall act as inspectors at the* first meeting for 
 that purpose, certtfv who are elected, and appoint the time and place 
 of their first meeting. This enumeration comprises the substance of 
 their powers (See section 3222, Hill's Code). These are all acts neces- 
 sary to and in furtherance of the completion of the organization. The 
 organization is completed only when directors have been elected, and 
 they have elected a president and secretary, which it is contemplated 
 tlicv shall do at their first meeting. From the time of the first meet- 
 ing of the directors, that is to say, from the time of the organization 
 of the board, ''the powers vested in the corporation are exercised by 
 them, or by their officers or agents under their direction" (Hill's 
 Code, sec. 3225), thus relieving the incorporators of further duty or 
 power in the premises, or, rather, their functions then cease, because 
 their duties have been fulfilled and their powers executed. From 
 the date of its completed organization the incorporation may begin 
 the prosecution of its enterprise or business. It may then sue and be 
 sued, contract and be contracted with, and exercise any of the other 
 statutory powers incident to its organization and the enterprise, busi- 
 ness, pursuit or occupation adopted. The corporation may elect its 
 board of directors when one-half of the capital stock has been sub- 
 scribed. Hill's Code, 3222; Fairview R. Co. v. Spillman, 23 
 Ore. 587, 32 Pac. 688. And one question here is, whether one-half 
 of the capital stock had been subscribed when the board was elected. 
 It seems to be supposed that in order to constitute a person a sub- 
 scriber to the capital stock of a corporation he must have subscribed 
 to the stock books of the concern after its articles of incorporation 
 have been perfected and filed, and Coyote Mining Co. v. Ruble, 8 
 Or. 284, is cited as authority. Boise, J., at page 294, says, in effect, 
 that to put a person in the position of a subscriber to the capital stock 
 it must be shown by the stock book signed by him, or evidence equiv- 
 alent to such signing. This would seem to support the proposition, 
 but at another place (page 298) he says: "It is necessary for the 
 corporation to prove the subscription by producing the supscription 
 signed by Ruble, either by himself or by another for him with his au- 
 thority, or by some acts of his which are equivalent to a subscription." 
 So that the case does not decide either that the primary subscription 
 must be made upon the stock book, or that it shall have been made 
 subsequent to the execution of the articles of incorporation. In a late 
 case (Balfour v. Baker City Gas Co., 27 Ore. 307, 41 Pac. 165), 
 Bean, C. J., speaking for this court, says: "From an extended ex- 
 amination of the authorities we take the law to be that when the pro- 
 posed corporation is formed as contemplated in the preliminary sub- 
 scription, and within a reasonable time thereafter, the subscription, 
 unless revoked in the manner authorized by law, becomes irrevocable,
 
 394 NICKUM V. BURCKHARDT. 80 
 
 the subscriber becomes a shareholder, and liable as such without any 
 further act on his part." And this seems to be so, although the statute 
 may provide for the opening of stock books by designated persons after 
 the articles are filed. Balfour v. Baker City Gas Co., 27 Ore. 307, 41 
 Pac. 165; i Thompson on Corporations, 1152, 1166; Buffalo R. 
 Co. v. Gifford, 87 N. Y. 294. Nor is the distinction taken in some 
 of the cases between a present subscription and an agreement to sub- 
 scribe to the stock of a corporation thereafter to be created thought to 
 be sound, i Cook on Stocks and Stockholders, 75 ; Knox against. 
 Childersburg Land Co., 86 Ala. 180-184, 5 South. 578; Athol Music 
 Hall Co. v. Carey, 116 Mass. 471. 
 
 Now, it appears that by the preliminary subscription seventy-eight 
 shares of the capital stock were signed for, three more than was neces- 
 sary for the completion of the organization by the election of directors. 
 Four of the individuals signing this paper, representing nineteen 
 shares, did not sign the later agreement, to which sixty-nine shares 
 only were subscribed. All those subscribing the latter paper, together 
 with Guy Posson and J. E. Juston, who signed the preliminary sub- 
 scription, signed the consent agreement, for holding the first meeting, 
 and participated therein, and Juston was elected a director. So it will 
 be seen that if the two shares of Posson and the four of Juston are 
 added to the sixty-nine shares signed to the second paper, one-half of 
 the capital stock was represented at such meeting. But the question 
 arises, Were they subscribers to the capital stock? We think that, 
 having signed the preliminary subscription and the consent agreement 
 for the first meeting, and having participated therein, they became 
 bound in that capacity, and must be so considered. They 
 certainly are estopped by their acts from denying that they are 
 subscribers, and, this being so, the law requiring a subscription 
 of one-half of the capital stock before organization was substantially 
 complied with. 
 
 Incidental to this question, it is argued that the purposes designated 
 in the articles of incorporation do not correspond with those set forth 
 in the preliminary subscription, and, therefore, that Posson and Jus- 
 ton can not be held to be subscribers. We presume that ordinarily a 
 material departure in this respect will avoid the original agreement, 
 but in this case the persons named have construed the purposes to be 
 one and the same by participation in the organization under the articles 
 of incorporation, or, rather, to speak more concisely, they have as- 
 sented to the departure, if such it may be termed. Knox v. Childers- 
 burg Land Co., 86 Ala. 180, 5 So. Rep. 578. 
 
 Again it is urged that if the primary subscription is sufficient to 
 bind the subscribers to the capital stock of the concern, then Barnes 
 and Pease not being present, and having no notice of the first meet- 
 ing, and not having waived the same by writing or otherwise, the 
 election of directors was irregular and void. We are not to be un- 
 derstood as passing upon the sufficiency of this paper within itself, 
 but that, considering the subscription thereto of Posson and Juston,
 
 8O FUNCTIONS OF PROMOTERS. 395 
 
 in connection with their subsequent acts they were properly recog- 
 nized as stockholders, and hence, that one-half of the capital stock was 
 represented at the organization of the company. The fact that Barnes 
 and Pease had not been notified of the meeting could not furnish 
 grounds for objection by those subscribers present and participating 
 therein, .they have not suffered by the omission, and are not in a posi- 
 tion to object as to others: Schenectady R. Co. v. Thatcher, n N. 
 Y. 102. See, also, Handley v. Stutz, 139 U. S. 422, n Sup. Ct. 
 530; Morawetz on Private Corporations, 399. Thus we have an 
 organization perfected by persons bound as subscribers, and repre- 
 senting fully one-half of the capital stock as fixed by the articles of 
 incorporation, and all bound by its proceedings. We think the 
 organization valid, although Barnes and Pease were not notified. As 
 to how they would be affected by want of notice it is not for us to 
 determine at this time ; it is sufficient to say that those subscribers par- 
 ticipating can not object on that account. 
 
 The defendants, if subscribers to the capital stock, became such 
 after the organization, and the want of notice to Barnes and Pease 
 could not affect them ; so that they are in no better position to object 
 to the regularity of the organization on that account than those partic- 
 ipating in the first meeting. The result is that, in so far as they are 
 concerned, the company was duly incorporated, and this result is 
 reached, not because they are estopped by having dealt with it, but 
 because it was legally organized prior to their subscription to the cap- 
 ital stock. For the purpose of estopping the plaintiff from asserting 
 its due and legal organization, it is alleged in the answer in abatement 
 that plaintiff had, theretofore, instituted an action in a justice's court 
 against Guy Posson for assessments made by the company upon his 
 alleged subscription to the capital stock; that a trial was had upon the 
 sole issue whether Posson was a subscriber at the date of the attempted 
 organization ; and that it was determined by the judgment that he was 
 not. It is claimed that, as the same question is necessarily involved 
 in determining in this action whether the plaintiff was duly organized, 
 the plaintiff is estopped to assert its truth, the judgment having gone 
 against him in the justice's court. The plea is argumentative, and 
 avers in effect that, as the judgment in the justice's court estops the 
 plaintiff to now assert that Posson is a subscriber, therefore it can not 
 be affirmed that the corporation is duly organized. That this is an 
 action upon a different cause from the one against Posson can not be 
 gainsaid ; the inquiry, therefore, to which the estoppel is pertinent must 
 be confined to the point or question actually determined in the Posson 
 case. Cromwell v. County of Sac, 94 U. S. 353. Thus far, the 
 plea is apparently within the rule. But a very important essential to 
 the estoppel is wanting in that this cause and the one adjudicated in 
 the justice's court are not between the same parties in the same right 
 or capacity, or their privies claiming under them. This objection is 
 fatal to the plea, i Freeman on Judgments, 252. The judgment 
 of the court below must, therefore be reversed, and the cause re-
 
 396 NICKUM V. BURCKHARDT. 80 
 
 manded for such further proceedings as maybe deemed proper not in- 
 consistent with this opinion. 
 Reversed. 
 
 Note. See schemes of organization, infra, pp. 426, 660 ; In In re Lady Bryan 
 Co., 1 Sawyer (II. S. C. C.) 349, 14 Fed. Gas. 926 (1870), it was said that "corpora- 
 tors" in the Bankrupt Act, meant the stockholders. But so far as organiza- 
 tion is concerned "corporators exist before stockholders, and do not exist 
 with them. When stockholders come in, corporators cease to be." Chase v. 
 Lord, 77 N. Y. 1, 11 (1879). Corporators or incorporators need not become 
 members of the corporation by subscribing for stock, unless the law expressly 
 so provides : 1870, Densmore Oil Co. v. Densmore, 64 Pa. St. 43 ; 1890, Welch 
 v. Importers', etc., Bank, 122 N. Y. 177; 1898, Bristol Bank & T. Co. v. Jones- 
 boro B. & T. Co., 101 Tenn. 645, 48 S. W. 228.
 
 TITLE II. THE BODY CORPORATE: ITS FORMATION, OR ITS CON- 
 CEPTION AND INCUBATION. 
 
 CHAPTER 5. 
 
 THE CORPORATE CHARTER. 1 
 ARTICLE I. NATURE AND PURPOSE OF THE CHARTER. 
 
 Sec. 81. In general. The conception of a corporation consists in 
 the offer and acceptance of a charter, wherein is set forth the 
 terms and conditions upon which the state will permit an in- 
 dividual or association of individuals to exercise a part of the 
 sovereign franchises of the state. When the offer is made 
 and accepted there results a contract between the state, the 
 corporation, and those who accept it, authorizing them to con- 
 vert themselves, or others, or an association of other persons, 
 by organization, into a body corporate, having the powers 
 and privileges set forth expressly, or necessarily implied from 
 those set forth, in the charter. 
 
 Sec. 82. More particularly, the charter is both a law and a con- 
 tract. 
 
 "A charter of incorporation is the written instrument by which the 
 crown institutes the body politic, and conveys to it its peculiar constitu- 
 tion, its rights, privileges, powers or estates, etc., imposes a name upon 
 the corporation, defines its objects and purposes, and assigns such con- 
 ditions and limitations upon the exercise of the powers, privileges, etc., 
 conferred, as to the crown seems fit." Grant, Corporation, *i3 
 [Am. ed. p. 25, 1854]. 
 
 "The charter of a corporation serves a twofold purpose; it operates 
 as a law conferring upon the corporators the right or franchise of act- 
 ing in a corporate capacity, and, furthermore, it contains the terms of 
 the fundamental agreement between the corporators themselves." 
 Morawetz, Private Corporations, 316. 
 
 "The charter of a private business corporation or incorporated com- 
 pany operates primarily as a law repealing the common law prohibi- 
 
 1 See, generally, 1 Abbott's Digest, 146; 4 Am. & Eng. Enc., 193-4; Angell 
 & Ames, ch. ii, iii; Beach, 11, 13, 15, 17-36; Boone, ch. ii ; Clark, ch. ii; 
 Cook, 2, 3, 492-503, 640; Elliott, 21-50, 89-120; Field, 9-36; Grant, 
 pp. *9-*47 ; Morawetz, 8-27, 38, 39, 318-759, 760, 1046-1050; Taylor, 118, 
 147, 195, 227, 264, 438, 448, 496-504 ; 1 Thompson, 35-218. 
 
 (397)
 
 398 PLANK-ROAD V. WOODHULL. 82 
 
 tion against the formation of corporate associations, and enabling the 
 members of the company legally to accomplish the purposes for which 
 they have associated. * * * After the corporation has been 
 formed pursuant to such a charter or incorporation law, it fulfills a 
 second equally important function. It contains, in whole, or in part, 
 the terms of the contract, or articles of agreement, by which the share- 
 holders or members of the corporation are bound together, and indi- 
 cates the purposes for which they have contributed or agreed to con- 
 tribute the company's capital." Morawetz, Private Corporations. 
 1046. 
 
 "The constitution of a corporation is of a dual nature; it is law in 
 that it consists of rules for conduct set by a political superior to polit- 
 ical inferiors, and it embodies a contract the obligation of which is the 
 selfsame constitution regarded as law. The contract embodied in the 
 constitution always subsists among the corporators as parties thereto, 
 and it may subsist between the corporation and the state, for the state 
 is sometimes a party to it." Taylor, Private Corporations, 438. 
 
 Sec. 83. Same. The charter as a law and as a contract. 
 
 FLINT AND FENTONVILLE PLANK- ROAD v. WOODHULL. 
 1872. IN THE SUPREME COURT OF MICHIGAN. 25 Mich. Rep. 99-1 13. 
 
 COOLEY, J. The legislature of 1848 passed an act incorporating 
 the Flint and Fentonville Plank-road Company, with power to lay out, 
 establish and construct a plank-road, and all necessary buildings, 
 from the village of Flint to the village of Fentonville. The act was 
 to remain in force sixty years from and after its passage, but the fourth 
 section provided that "the legislature may at any time alter, amend, 
 or repeal this act by a vote of two-thirds of each branch thereof; but 
 such alteration, amendment, or repeal shall not be made within thirty 
 years of the passage of this act, unless it shall be made to appear to 
 the legislature that there has been a violation by the company of 
 some of the provisions of this act." The fifth section made the gen- 
 eral plank-road act of 1848 a part of this special charter. Laws 1848, 
 p. 404. 
 
 The corporators appear to have organized under their charter, and 
 to have constructed the road provided for by it, a part of which they 
 now keep up and maintain. In 1871, the legislature passed an act to 
 repeal this charter. This act is very brief, has no preamble, contains 
 no recitals, and simply declares that the act first above named "be 
 and the same is hereby repealed." Sess. L. 1871, vol. iii, p. 167. 
 No notice was given to the company or to any of its officers, of the 
 intention to adopt or to propose any such repeal, or to enter upon any 
 investigation of a violation by the company of any of the provisions
 
 83 CHARTER AS A LAW AND CONTRACT. 399 
 
 of its charter; neither the journals of the legislature, nor the files or 
 records in the office of the secretary of state, show that any investiga- 
 tion was ever had, nor is it claimed or suggested that there is evidence 
 anywhere that any tribunal, legislative or judicial, has passed upon 
 the question of such a violation, and adjudged it to have taken place, 
 unless the repealing act itself affords such evidence. The company 
 denies the validity of this act, and the defendant, having treated it as 
 valid, and acted upon it adversely to their interests, an issue has been 
 made, which is now before us for decision. 
 
 It is not disputed on the part of the defendant that the charter of a 
 private corporation is to be regarded as a contract, whose provisions 
 are binding upon the state, and can not be set aside at the will of the 
 legislature. Such a charter is a law^ but it is also something more 
 than a law, in that it contains stipulations -which are terms of com- 
 pact between the state as the one party, and the corporators as the 
 other, 'which neither party is at liberty to disregard or repudiate , 
 and -which are as much removed from the modifying and controlling 
 po-wer of legislation as would be the contracts of private parties. 
 But the defendant insists that the repealing act in this case is one con- 
 templated and justified by the contract itself ; and no attempt is made 
 to defend it, except upon what the defendant regards as a just con- 
 struction of the original charter. The positions taken by the defend- 
 ant may be succinctly stated as follows : 
 
 1 . The legislature had a right to repeal the charter whenever the 
 fact should be made to appear that a violation of the charter had 
 taken place. 
 
 2. The inquiry into the fact of violation would be an inquiry for 
 the purpose of enabling the legislature to exercise its legitimate pow- 
 ers, and would, therefore, be legislative in character, and might be 
 entered upon in any manner and through any channels the legislative 
 wisdom might devise or see fit to employ, untrammeled by any of the 
 rules which govern the action of judicial tribunals. 
 
 3. The repealing act is not only of itself a determination that the 
 violation of charter has taken place, but it is evidence, also, that the 
 legislature has first informed itself of the facts; and no court or other 
 authority is at liberty to assume that it has acted improvidently or 
 without due inquiry. 
 
 . 4. But, although all presumptions favor the legislative action, it is 
 conceded that the parties concerned are entitled to a judicial investi- 
 gation afterwards, and, upon an issue properly framed for that pur- 
 pose, may show the act invalid by establishing the fact that no 
 violation of the charter has taken place, and that the legislature must 
 have acted under mistake or in misapprehension of the facts. 
 
 The first of these positions must be conceded. The right of the 
 legislature to repeal, when it was properly made to appear that a 
 breach of the charter had taken place, can not be questioned. 
 
 The second will be equally indisputable, if the main point be estab- 
 lished, that the inquiry to determine the violation of the charter is 
 legislative in character. The legislature will not Only choose its own
 
 400 PLANK-ROAD V. WOODHULL. 85 
 
 modes of collecting information to guide its legislative discretion, but 
 from due courtesy to a co-ordinate department of the government, we 
 must assume that those methods were the suitable and proper ones, 
 and that they led to correct results. And if the records show no in- 
 vestigation, we must still presume the proper information was 
 obtained; for we must not suppose the legislature to have acted im- 
 properly, unadvisedly, or from any other than public motives, under 
 any circumstances, when acting within the limits of its authority. 
 Baltimore v. State, 15 Md. 376; Lusher v. Scites, 4 W. Va. n; 
 People v. Draper, 15 N. Y. 545, 555; Wright v. Defrees, 8 Ind. 
 302 ; Ex Parte McCardle, 7 Wall. 514; Bradshaw v. Omaha, i Neb. 
 16; Humboldt Co. v. Churchill Co. Com'rs, 6 Nev. 30. 
 
 The third point must also be conceded to this extent ; that the leg- 
 islative act, not violative of any constitutional principle, must be its 
 own sufficient and conclusive evidence, when assailed, of the justice, 
 propriety, and policy of its passage. We ourselves acted upon this 
 principle in People v. Mahaney, 13 Mich. 484, and it is not dis- 
 puted anywhere so far as we are aware. 
 
 But there lies at the basis of all these propositions the question 
 whether the determination that the charter has been violated is in 
 truth legislative in character. The defendant affirms that it is ; the 
 plaintiff insists that it is properly and essentially judicial. This point 
 decided one way, disposes of the case ; decided the other, it is followed 
 by other of a difficult and somewhat delicate nature, which would neces- 
 sarily be considered before a conclusion could be reached on the merits. 
 Now it must be conceded that, if the act in question is not judicial 
 in character, it is at least strikingly analogous. There is a question 
 which is or may be disputed, there are adverse parties, there are pri- 
 vate interests involved, there is evidence to be received, there is the 
 fact to be found, there is punishment to be inflicted, there is a forfeit- 
 ure to be enforced. Legislative action does not often, to say the least, 
 include all or many of these elements. It may affect private rights 
 incidentally, but it does not often proceed to pass directly upon the 
 controversies between the state and individuals. In some cases the 
 legislature has judicial power, because it is incident and essential to 
 the discharge of legislative functions. Such is the power to deter- 
 mine upon the election and qualification of its members and the powers 
 to punish for contempts of its authority. In these cases it is entitled to all 
 the presumptions which support the action of courts, and having no au- 
 thority set over it, to review its determinations, they must be accepted 
 everywhere as correct and conclusive. People v. Mahaney, 13 Mich. 
 481 ; Anderson v. Dunn, 6 Wheat. 204; Hiss v. Bartlett, 3 Gray, 468; 
 Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 
 450; State v. Jarrett, 17 Md. 309; Lamb v. Lynd, 44 Pa. St. 336. 
 But every judgment must have something preceding it to put the judi- 
 cial body in motion ; the sentence, by any authority pronounced, 
 however august or powerful, will be a mere idle fulmination if there 
 was no Us mota to base it upon. The order of a legislative body for 
 the punishment of an individual would be merely idle and void, un-
 
 83 CHARTER AS A LAW AND CONTRACT. 40 1 
 
 less somewhere in the record there appeared a cause alleged which 
 subjected him to its jurisdiction for such punishment. 
 
 It is conceded in the present case that the fact of corporate abuse 
 was to be found before the charter could be taken away. The re- 
 pealing act, however, is only a sentence. It inflicts the penalty of 
 corporate death, without in any way declaring or intimating, except 
 by the penalty, that the corporation has been found worthy of death. 
 It is precisely such an act as might have been passed had the legisla- 
 tive power been unlimited and untrammeled. The legislature had 
 power to repeal for cause, and was prohibited from repealing without 
 cause ; it repeals, expressing no cause, and it is said the cause must be 
 inferred. Then comes what is to have the effect of punishment, 
 though it does not purport to be such, and only on its face appears to 
 be the withdrawal of a privilege ; and yet, as there was a right assured 
 and no mere privilege to be withdrawn, it is supposed, we must infer, 
 Jirst, that a punishment was designed, and then, from the punishment 
 infer the guilt, the accusation, the trial, and the conviction. Having 
 thus assumed the conclusion to begin with, we must next, from the 
 conclusion, assume that the premises existed to deduce it from. This 
 is certainly much more than can be assumed in support of the action 
 of any court. In the courts, there must at least be an accusation and 
 A condemnation, before there can be the infliction of any penalty. To 
 infer cause where none is assigned in the taking away of private rights, 
 is to take up and adopt the arguments in favor of the arbitrary arrests 
 under the command of Charles I. His warrants assigned no cause, 
 and, therefore, it was argued sufficient cause must be presumed. If 
 this repealing act is good as a judgment of abuse of corporate privi- 
 leges, then Sir Nicholas Hyde was correct in holding that he could 
 not release on habeas corpus the parties committed to prison by the 
 special command of the king for refusing to submit to his illegal exac- 
 tions. The king had power to order a committal for cause ; no cause 
 was expressed ; therefore a sufficient cause was to be assumed. Dar- 
 nel's Case, 3 State Trials i ; Broom's Const. L., 162. 
 
 The defendant refers to certain cases in support of his positions, of 
 which The Miner's Bank v. The United States, Morris, 482, s. c., 
 i Greene (Iowa) 553, goes to the full extent of holding that such a 
 legislative act is not only valid, but is conclusive that cause existed 
 for its passage. This case, however, stands alone, and was not very 
 much insisted upon on the argument. The cases of Crease v. Bab- 
 cock, 23 Pick. 334, and Erie & N. E. R. R. Co. v. Casey, 26 Penn. 
 St. 287, are more relied upon as laying down the correct rule. The 
 Pennsylvania case is most directly in point, and as it appears to have 
 been carefully considered, the conclusion is entitled to great respect, 
 notwithstanding those eminent jurists, Mr. Chief Justice Lewis and 
 Mr. Justice Woodward dissented. In that case, the corporation was 
 protected by a clause in its charter, similar to the one under consider- 
 ation here, and the legislature had thought proper to act upon it by re- 
 pealing the charter, without any preliminary judicial investigation. In 
 
 26 WIL. CASKS.
 
 402 PLANK-ROAD V. WOODHULL. 83 
 
 stating the position assumed in support of the repealing act, Mr. Jus- 
 tice Black says: "For the defendant, it is insisted that the repealing 
 act is itself not only evidence, but conclusive evidence, that the com- 
 pany had previously committed some abuse or misuse which justified 
 the repeal. No case has been cited which denies this doctrine ic 
 terms ; and it was held for the true rule by the supreme courts of 
 Iowa (i Greene 561) and of New York (19 Barb. 81). But I do 
 not see clearly the principle on which it can stand. A legislative 
 body in a matter like this is known to proceed without formal notice, 
 without specific accusation, and without opportunity to answer. There 
 is no confronting of the parties with the witnesses, nor anything that 
 can be called a hearing or trial. It would, therefore, seem unjust to 
 hold that a legislative act is, like a judicial sentence, conclusive of 
 every fact which ought to have been found before it was passed. It 
 might more plausibly be likened to an award made by an umpire to 
 whom both parties have agreed that the subject should be referred." 
 "For myself," he says, "I incline to the opinion that, when the con- 
 stitutional power of the legislature to pass a law depends on matter 
 of fact, the party to be affected by it ought to have an opportunity 
 afterward of showing how the fact is." E. & N. E. R. R. Co. v. 
 Casey, 26 Penn. St. 316. 
 
 Having thus expressed the opinion that legislative conclusions on 
 questions of fact were subject to review in the courts, the learned 
 judge goes further, and proceeds to lay down rules for the legislative 
 guidance in determining the causes which are to justify the legislature 
 in acting at all. The legislature is not to judge finally for itself what 
 is abuse or misuse of corporate privileges by a company; but, 
 
 1. The illegal act must be positive. A. mere omission, like the 
 failure of a bank to make its annual returns, is not enough. 
 
 2. A disregard of the charter, which is injurious only to private 
 interests, and which, therefore, admits of private compensation, is 
 not, he thinks, within the fair meaning of the words. It must be 
 some conduct which infringes upon a right reserved by a state for the 
 benefit of the public. 
 
 3. It must be willful; that is, not involuntary, accidental, or the 
 consequence of mere mistake of fact. 
 
 4. It must not be the mere transgression of the act of incorpora- 
 tion by a subordinate officer, or agent without authority, express or 
 implied, from the board of directors. E. & N. E. R. Co. v. Casey, 
 26 Pa. St. 319. 
 
 Thus the majority of the supreme court of Pennsylvania lays down 
 the rules of law which are to control the legislature in the exercise of 
 its legislative authority, and at the same time declares the right of 
 the court to review the conclusions of the legislative body in matters 
 of fact. With great respect to the eminent tribunal we are unable to 
 understand why this is not a setting of the court above the legislature, 
 as an appellate tribunal in matters both of law and of fact, in a man- 
 ner which wholly ignores the divisions of the powers in the constitu- 
 tion, and is quite inconsistent with the harmonious operation of the
 
 83 CHARTER AS A LAW AND CONTRACT. 403 
 
 machinery of government. It is not consistent with legislative inde- 
 pendence and dignity, that the court should assert a right to sit in 
 judgment upon legislative action, or to attribute to the legislature 
 erroneous or oppressive conduct in the exercise of any of its proper 
 and legitimate functions. These two departments of the government 
 being co-ordinate, and neither of them occupying a position subordi- 
 nate to the other, the conclusions of each must be accepted by the 
 other as proceeding from good motives, and as warranted by the 
 proper information. It could only be productive of endless discord 
 and confusion, not to say of jealousies and conflicts of authority, if 
 the legislature was to review and set aside the judgments of the courts, 
 or the courts to allow parties to appeal to them from the conclusions 
 the legislature had reached in determining upon the propriety of pass- 
 ing or declining to pass a proposed law. Careful endeavor has been 
 made to prevent any such jealousies and conflicts when, in framing 
 our constitutions, a line of distinction has been drawn between the 
 legislative and judicial functions, and the departments to which these 
 functions respectively have been confided have been entrusted with 
 no power to pass that line. It is, therefore, in the highest degree 
 impertinent and obtrusive, when either department undertakes to 
 advise the other, that in the exercise of its proper functions, it has 
 acted unwisely and indiscreetly, has misjudged the facts or perverted 
 the law ; and its action must be still more offensive if it entertains the 
 appeal of parties from the decisions of the other, when acting within 
 a province which was set apart to be peculiarly under its jurisdiction 
 and control. 
 
 Moreover, there is, in the nature of the case, and the difference in 
 the manner in which legislative and judicial functions are performed, 
 reason sufficient to demonstrate the impossibility of a proper review 
 by one department of the decisions the other has made. Legislators 
 have a right to act upon their own knowledge and observation, upon 
 hearsay, upon information derived from the public press, upon the 
 ex parte petitions of interested parties, upon anything, in short, which 
 satisfies their judgment ; and public opinion is one of the most impor- 
 tant facts to be considered in determining upon the propriety or advis- 
 ability of a proposed law. Even an unreasonable prejudice, if gen- 
 eral or widespread, may sometimes very properly be a controlling 
 consideration when the case is such that to the enforcement of the law 
 a strong supporting public sentiment would be a necessity. But these 
 are things the courts must not allow to influence their action. With 
 them the question must simply be, jirst, what is the law; and second, 
 what are the facts ; and the facts they must reach through inflexible 
 rules of evidence laid down for their guidance. A review of a legis- 
 lative determination by the courts would, therefore, not only be 
 highly indecorous and objectionable, for the reasons already stated, but 
 it would be eminently improper also, for the further reason, that it could 
 not possibly be had upon the same evidence. It is wholly foreign to 
 any proper administration of law or justice, that the decision of the 
 proper authority upon any subject should be liable to review by an-
 
 404 PLANK-ROAD V. WOODHULL. 83 
 
 other tribunal, which in such review is shut off from the sources of in- 
 formation to which the other had access So far, therefore, from the 
 different ways the legislature and the judiciary have of reaching the 
 facts being a reason why the latter should give parties who have been 
 decided against by the former a rehearing, they constitute with us a 
 very conclusive reason for holding that those cases in which there is a 
 hearing to be had on questions of private right and private property, 
 are, and must in their very nature be, regarded as exclusively of judi- 
 cial cognizance. 
 
 But there are still further reasons why the doctrine declared in the 
 Pennsylvania case can not, we think, be sound. That doctrine is, to 
 state it more fully, that though the legislature may repeal the corpo- 
 rate charter, on the ground of abuse or misuse, thereby taking away 
 from the corporators the franchise of greater or less property value, 
 yet the legislative decision is only -prima facie correct, and the par- 
 ties are entitled to have it set aside in the courts afterward, on show- 
 ing by evidence that they have not been guilty of such abuse or misuse. 
 In other words, the legislative act, which may perhaps be passed 
 without any notice, is to stand as a conviction of guilt until the par- 
 ties charged can prove their innocence. But their innocence of what? 
 In other cases it would be thought the grossest perversion of right 
 and justice if, in any proceeding in court, the party was to be pre- 
 sumed guilty of any one specific charge until he proved himself inno- 
 cent; but that case would be a much less serious departure from the 
 rules of justice than this. The general plank-road act of 1848 was 
 made a part of this company's charter, and it contained a great many- 
 provisions to be observed by it, and for a violation of some of them 
 specific penalties were imposed. The company has been in opera- 
 tion upward of twenty years, when its franchise is taken away on a 
 presumption of guilt, which is only to be removed by the corporators 
 proving that in all that time they have observed every provision of 
 their charter and been guilty of no default. It is safe to say that what 
 is required of them is, and would be in any such case, a simple im- 
 possibility. It is as if an individual should be charged generally, and 
 without further specification, with an offense against the criminal 
 laws, and the trial-court should say to him: "You are charged, and 
 prima facie convicted, of crime, but you shall be relieved of the con- 
 viction on making proof that you have never disobeyed the law. 
 Meantime, and until you do so, the state will take from you your 
 property in punishment for your presumed guilt." 
 
 Now, it is simply impossible that any doctrine which leads to such 
 results can be sound. But the illustrations of its anomalous and un- 
 just character might be multiplied indefinitely, and if it were possible 
 for the question of corporate default to be fairly tried under it, it must 
 be remembered, also, that as the question would or might arise be- 
 tween individuals and the company, as it has in this instance, there 
 might be repeated trials of the same question, none of which would 
 be conclusive in a new suit. The question involved in each suit 
 would be the validity of a statute, dependent upon the facts, and,
 
 83 CHARTER AS A LAW AND CONTRACT. 
 
 therefore, submitted to a jury, and while the jury in one cause might 
 hold it valid, another in a different case, acting upon somewhat dif- 
 ferent evidence, or influenced by more persuasive advocates, might 
 declare it void, and thus it would be a law to-day as to one party and 
 no law to-morrow as to another, and so on indefinitely, according to 
 the varying views which different panels of jurymen might take of dis- 
 puted facts, until, perhaps, the state would be compelled to interfere 
 by quo ivarranto, and have, after all these proceedings, the authori- 
 tative adjudication which sound policy, not less than correct principle, 
 demanded at the beginning. But we need hardly say that a law, if 
 valid at all, must be valid from its enactment, and can not be made 
 to depend upon the opinion of a jury as to the sufficiency of the rea- 
 sons for its being passed. 
 
 We are constrained, therefore, from all these considerations, to say 
 that the determination whether a corporation has violated its charter 
 is judicial in its nature. It requires the action of those tribunals 
 which must hear before they condemn, and must proceed upon in- 
 quiry. If it were properly legislative, it may be that the legislature 
 must be presumed to have given a hearing, but the fact, as we have 
 seen in this case, is otherwise, and the cases in which presumptions 
 are to be indulged against the facts, ought not to be multiplied. It is 
 sufficient to say that, in our opinion, the case is one in which the party 
 is entitled to a trial of right in fact, and can not be put off with one 
 which rests exclusively in a presumption of law, indulged agafnst the 
 fact. The violation of the charter can not be legally made to appear, 
 except on trial in a tribunal whose course of proceeding is devised for 
 the determination of questions of this nature. 
 
 We think this the fair construction of that clause of the charter 
 which is in question. It is not to be presumed that the legislature 
 designed to take upon itself judicial powers, and as the act does not 
 necessarily require that construction, it should not be given it. We 
 must suppose that an inquiry in some proper form was contemplated 
 by means of which on fair trial it should be made to appear to the 
 legislature that a cause existed justifying repeal. Any other view 
 renders the stipulation worthless as a protection, but this view pro- 
 tects the interests of corporators, and at the same time enables the 
 legislature to exercise its power of taking away the charter, even 
 though the violation of corporate duty might not be of that serious 
 character which would seem to justify declaring a forfeiture on judi- 
 cial proceedings instituted, independent of this clause. The repeal- 
 ing act, it must be assumed, was passed through inadvertence, and 
 probably under the impression that the charter, like many others in 
 this state, was subject to repeal in the legislative discretion. 
 
 This being our view, it follows that the judgment of the circuit 
 court must be reversed, with costs, and a new trial granted. 
 
 CHRISTIANCY, Ch. J., and CAMPBELL, J., concurred. 
 
 GRAVES, J., did not sit in the case.
 
 406 STATE V. INSURANCE COMPANY. 84 
 
 Note. The charter as a law. 
 
 1. The courts take judicial notice of general incorporation laws. 1861, Heas- 
 ton v. Cincinnati, etc., R. Co., 16 Ind. 275. 
 
 And even of special acts incorporating state banks. 1850, Jemison v. Planters', 
 etc., Bank, 17 Ala. 754; 1860, Davis v. Fulton Bank, 31 Ga. 69; 1861, Buellv. 
 Warner, 33 Vt. 570 ; 1862, Gordon v. Montgomery, 19 Ind. 110 ; Compare 
 Kelly v. Alabama & Cin. R. Co., 58 Ala. 489. 
 
 Or municipal corporations. 1860, Payne v. Treadwell, 16 Cal. 220; 1862, 
 Macey v. Titcombe, 19 Ind. 135; 1864, Swain v. Comstock, 18 Wis. 463; 1875, 
 Stier v. Oscaloosa, 41 Iowa 353; 1877, Albrittin v. Huntsville, 60 Ala. 486; 
 1894, Jones v. Lake View, 151 111. 663. 
 
 And sometimes railroad companies. 1866, Wright v. Hawkins, 28 Tex. 452; 
 1898, Miller v. Matthews, 87 Md. 464, 41 Atl. Rep. 176. But not always or gen- 
 erally. 1872, A., T. & S. F. R. Co. v. Blackshire, 10 Kan. 477 ; 1876, Perry v. 
 N. O", etc., R. Co., 55 Ala. 413. 
 
 2. The charter, even though a special act, is a law of the state creating the 
 corporation, in the sense that "ignorance of the law excuses no one;" hence all 
 persons are supposed to take notice of its contents. 1859, Hoyt v. Thompson, 
 19 N. Y. 207; 1879, Thomas v. R. Co., 101 U. S. 71; 1881, Davis v. Old Colony 
 R. Co., 131 Mass. 258, 41 Am. R. 221 ; 1887, Bocock v. Allegheny, etc., Co., 82 
 Va. 913, 3 Am. St. R. 128; 1887, Elevator Co. v. Memphis, etc., R. Co., 85 
 Tenn. 703, 4 Am. St. R. 798; 1890, Jemison v. Citizens' Sav. Bank, 122 N. Y. 
 135, 19 Am. St. R. 482 ; 1893, Franco-Texan Land Co.v.McCormick,85Texas416, 
 34 Am. St. R. 815; 1895, Durkee v. People, 155111. 354, 46 Am. St. R. 340; 1897, 
 Franklin Nat'l Bank v. Whitehead, 149 Ind. 560, 63 Am. St. R. 302. See par- 
 ticularly Elliott, 212, 213 ; Morawetz, 591 , 592 ; Taylor, 264 ; V. Thomp- 
 son, 5973, et seq. ; VII. Thompson, 8309, et seq. 
 
 3. The charter, as a law, is conclusive evidence of its validity, even though 
 obtained by fraud; yet it will not protect those who obtained it by fraud, or 
 fraudulently organize under it. 1863, Paterson v. Arnold, 45 Pa. St. 410; 
 1865, Booth v. Bunce, 33 N. Y. 139, 88 Am, Dec. 372; 1894, Davidson v. Hob- 
 son, 59 Mo. App. 130. But see Morawetz, 769; and Taylor, 147. 
 
 4. The charter as a contract, see, infra, pp. 707-760. 
 
 Sec. 84. Same. The charter, or articles of incorporation or asso- 
 ciation under a general law, is a license of authority for the 
 persons named, or the promoters, to convert persons or an 
 association of persons into the designated corporation in ac- 
 cordance with the terms indicated in the charter, or general 
 law. 
 
 STATE, Ex REL., v. INSURANCE COMPANY. 1 
 
 1892. IN THE SUPREME COURT OF OHIO. 49 Ohio State Reports 
 440-447, 16 L. R. A. 6n, 37 A. E. C. C. 583. 
 
 SYLLABUS: 5. The making and filing , for the purpose of profit, of 
 articles of incorporation in the office of the secretary of state, do not 
 make an incorporated company ; such articles are simply authority to 
 
 1 Only the opinion on the point as to authority to form corporations is 
 given.
 
 84 CHARTER IS A LICENSE TO FORM A CORPORATION. 407 
 
 do so. A*o company exists -within the meaning of the statute until the 
 requisite stock has been subscribed and paid in, and the directors 
 chosen. 
 
 In quo Tvarranto. 
 
 MINSHALL, J. i. The defendant is a fidelity and casualty insur- 
 ance company, organized under the laws of the state of New York, 
 and doing, in this state, what by the laws of New York is authorized 
 and known as four lines of such insurance, to wit : First, against in- 
 jury, disablement or death, of persons resulting from traveling, or 
 general accidents by land or water; second, guaranteeing the fidelity 
 of persons holding places of public or private trust; third, upon plate 
 glass against breakage; fourth, upon steam boilers against explosion, 
 and against loss or damage to life or property resulting therefrom. Its 
 right to do more than one of such lines of business in this state is 
 challenged by the attorney-general on the ground that, by the laws of 
 New York, no company incorporated in this state can transact in that 
 state more than one of such lines of insurance, and, therefore, under 
 the provisions of section 282, Revised Statutes, of this state, it has no 
 right to make in this state more than one of the lines of insurance it 
 is doing. That section reads as follows: 
 
 "When, by the laws of any other state or nation, any taxes, fines, 
 penalties, license fees, deposits of money, or of securities, or other 
 obligations or prohibitions are imposed on insurance companies of 
 this -state, doing business in such state or nation, or upon their agents 
 therein, so long as such laws continue in force, the same obligations 
 and prohibitions, of whatever kind, shall be imposed upon all insur- 
 ance companies of such other state or nation doing business within 
 this state, and upon their agents here." 
 
 A demurrer to the petition, objecting to the jurisdiction of the 
 court, as well as to the sufficiency of the pleading, having been over- 
 ruled, the defendant, as a third defense to the petition, answered: 
 "That under the laws of New York, it is legally authorized and em- 
 powered to do, and is now doing, the four lines of insurance in that 
 state, which the petition charges it with illegally doing in Ohio ; and 
 that under the laws of Ohio, a corporation could be legally incorpo- 
 rated and organized, with power to do the same four lines of insur- 
 ance, or any one or more of them therein, but that no such company 
 has yet been organized to do said four lines of insurance in Ohio, and 
 hence no such company has yet made, or could make, application to 
 the proper officers in New York for a license to do said four lines 
 of insurance in the state of New York." A demurrer to this de- 
 fense having been overruled, the plaintiff asked leave to reply in sub- 
 stance as follows: That on January 13, 1887, the requisite number 
 of persons, citizens of Cuyahoga county, "subscribed and acknowl- 
 edged articles of incorporation," stating therein the name, place of 
 business, and capital stock of the proposed corporation and its object, 
 to wit: Under paragraph 2, 3641, Revised Statutes, to do the four 
 kinds of insurance now being done by the defendant in this state ; and
 
 408 STATE V. INSURANCE COMPANY. 84 
 
 the same having been approved by the attorney-general, as in con- 
 formity to the laws of the state, were then filed and recorded in the 
 office of the secretary of state of Ohio, "whereby" it is averred, "an 
 Ohio corporation was duly and legally formed for the purpose of do- 
 ing the lines of insurance mentioned in the articles of incorporation." 
 
 [The court, after holding it had jurisdiction to oust the corporation 
 from exercising its franchises in Ohio, and that the third defense was 
 insufficient, because there was no Ohio company to do business in New 
 York, proceeded] : 
 
 The next question is, should leave be given to file the proposed 
 reply to the third defense? We think not, for the reason that it does 
 not show that an Ohio company has been formed to do the four lines 
 of insurance in which the defendant is engaged. It will be observed 
 that it does not aver that any officers or directors have been chosen, 
 or that any of the stock has been subscribed, or that any organization 
 whatever has been affected. It is simply that "articles of incorpora- 
 tion" have been made, and filed and recorded in the office of the sec- 
 retary of state. 1 Articles of incorporation do not make an incorpo- 
 rated company, they are simply authority to do so. 
 
 Before disposing of the case, it may be well enough to notice an- 
 other defense relied on in the answer, and to which a demurrer has 
 been sustained, and that is, the license granted the defendant to do 
 business in this state by the superintendent of insurance. We are all 
 of the opinion that the issuing of a license to a foreign insurance com- 
 pany to do business in this state is a ministerial and not a judicial'act, 
 and, whilst it will protect the company in the transaction of its busi- 
 ness during its continuance, is not a bar to a proceeding against it in 
 quo -warranto, where it is found to be exercising any of the franchises 
 of the state without authority of law. State v. Fidelity and Casualty 
 Ins. Co., 39 Min. 538, and cases cited in brief of counsel for re- 
 lator. 
 
 Application for leave to reply to the third defense of the answer 
 overruled and petition dismissed. 
 
 lr The Revised Statutes of Ohio, 3236, provides that "any number of 
 persons, not less than five * * * desiring to become incorporated shall 
 subscribe * * * articles of incorporation * * * which must contain 
 [certain enumerated things]." Section 3238 provides that "the articles shall 
 be filed in the office of the secretary of state." Section 3239 provides that 
 "upon the filing of the articles of incorporation, the persons who subscribed 
 the same, their associates, successors and assigns, by the name and style pro- 
 vided therein, shall thereafter be deemed a body corporate, with succession 
 and power to sue and be sued, contract and be contracted with," etc. It will 
 be noticed that the statute seems to make the subscribers a corporation, be- 
 fore any stock is subscribed, or any organization had, yet the supreme court 
 holds that in fact the subscribing and filing articles of incorporation only re- 
 sults in a license to obtain subscription to stock and organize a corporation in 
 accordance with the further provisions of the general law. 
 
 See, also, Walton v. Oliver, 49 Kan. 107, infra, p. 565; 1895, Whetstone v. 
 Crane Bros., 1 Kan. App. 320, and cases given under 144-148, infra.
 
 8$ OFFER AND ACCEPTANCE OF THE CHARTER. 409 
 
 ARTICLE II. ITS GENERAL FORM AN OFFER AND ACCEPTANCE. 
 
 Sec. 85. The offer may be by parties, and an acceptance by the 
 state; or it may be a special or general offer by the state, and 
 an acceptance by individuals, or an association of individuals. 
 
 PERKINS v. SANDERS. 1 
 
 1879. IN THE SUPREME COURT OF MISSISSIPPI. 56 Miss. Rep. 
 
 733-743- 
 
 GEORGE, C.J. * * * The appellant is a stockholder in the Perkins- 
 ville Manufacturing Company, and he also claims to be its creditor; 
 and by his bill he seeks to recover from the other stockholders, under a 
 provision of the charter of that company, hereinafter to be set out, the 
 amount of his debt. This bill is filed also in behalf of all of the 
 creditors of the company, and is against all the stockholders. The 
 company itself is not made a party, which would have been the regular 
 course in a bill of this character (a creditor's bill), since it is not 
 clear, from the allegations of the bill, that the company is either dis- 
 solved or entirely without assets. 
 
 The main point raised by the demurrer denied the right of the com- 
 plainant, upon the ground that he was not a creditor of the company, 
 because he did not show in his bill that the company was sufficiently 
 organized under its charter to make the contract sued on, at the time 
 it was made. This position is founded on the second section of the 
 charter (Sess. Laws 1870, p. 194), which provides "that the capital 
 stock of the said company shall amount to $60,000, and may be in- 
 creased, at the option of the stockholders, to $500,000, and that it 
 shall be divided into shares of $100 each." 
 
 The obligation sued on is dated in September, 1872, and is signed 
 by the president and secretary of the company. The authority shown 
 for the action of these officers, is a resolution and a by-law passed by 
 the stockholders, dated in December, 1871. 
 
 The bill alleges that $60,000 of stock was subscribed before the 
 execution of this obligation, but it does not aver that this subscription 
 was made before the date of the resolution and by-law, which consti- 
 tute the authority for making the contract. The chancellor sustained 
 the objection, but in this we are unable to agree with him. 
 
 It will be here noticed that this is not a bill by a creditor to collect 
 the unpaid balance of stock due by a stockholder to the company, as 
 was the case of Vick v. Lane, 2 but a suit to enforce a personal 
 liability of the stockholders for all the debts of the company. 
 So that the only points to be decided are, first, whether the obliga- 
 tion which the complainant sued on is a valid debt of the company ; 
 and. second, whether the circumstances exist which, under the pro- 
 
 1 Only that part of the opinion relating to acceptance of charter given. 
 
 2 56 Miss. 681.
 
 410 PERKINS V. SANDERS. 85 
 
 visions of the charter, make the stockholders liable for the debts of 
 the company. It is, therefore, wholly immaterial whether the stock- 
 holders were liable to assessments on their stock, in virtue of the fail- 
 ure of the subscriptions to amount to $60,000, except so far as such 
 failure may, in law, be an obstacle to the due organization of the 
 company, and the creation by it of the debt sought to be enforced. 
 
 In charters which are mere propositions for the organization of a 
 corporation, and which require certain acts to be performed precedent 
 to the existence of the corporation, no corporation can exist, and of 
 course, no corporate act can be performed till these conditions have 
 been complied with. In all such cases, where a certain amount is 
 named in the charter as necessary to be subscribed as the capital stock 
 of the company, such subscription is regarded as a condition prece- 
 dent to the existence of the corporation, unless otherwise provided in 
 the charter. Persons, therefore, who subscribe for stock under such 
 a charter have a right to assume that they will not be called upon to 
 pay until the amount named in the charter shall be subscribed, and, 
 accordingly, in that class of charters it has been held that subscribers 
 for the stock are not liable to assessments on their stock until the full 
 amount of the subscription has been made. But this rule does not 
 apply if there be anything in the charter which shows a right in the 
 corporation to make the assessments before the full amount of the stock 
 is subscribed, as was decided in Selma and Marion Railroad Com- 
 pany v. Anderson, 51 Miss. 829. 
 
 The charter of this company is not of that character. By the first 
 section of it, it is provided that the twenty-one persons named in it, 
 "and all others who are now or hereafter become associated with 
 them and their successors and assigns, be, and they are hereby.' 
 created a body politic and corporate under the name and style of the 
 Perkinsville Manufacturing Company," etc. This was no proposition 
 to create a corporation upon the performance of precedent conditions, 
 but it -was itself the creation of a corporation, requiring no other act 
 to be performed by the corporators than their acceptance of the char- 
 ter, and this even was unnecessary ', if, as it is probable, the corpora- 
 tors had applied for the grant of the charter, and thus accepted it 
 in advance. Action under the charter ivould be an acceptance of it. 
 and hence, there never could be any question as to the existence and due 
 organization of the corporation, -when determining upon the validity 
 of a corporate act done within its charter powers, for the performance 
 of the act itself would be an acceptance of the charter. 
 
 The distinction between the two classes of charters is thus seen to 
 be, that in the first-class the charter is a mere permission on the part 
 of the legislature for the formation of a corporation, upon the doing 
 of certain acts prescribed in the charter as precedent conditions, and. 
 as a necessary result, no corporate act can be done until these condi- 
 tions have been performed, except such as may be expressly permitted 
 by the charter; and as to those acts, it would be considered that the 
 corporation had an existence before its full investiture with its cor- 
 porate franchises. In the latter class, in which is this company,
 
 85 OFFER AND ACCEPTANCE OF THE CHARTER. 41 I 
 
 the corporation is in existence, for all the purposes of its creation, 
 from the beginning, except so far as there may be restraints placed 
 on it by the charter, either expressly or by plain implication. 
 
 As the bill alleges that the $60,000 of stock was subscribed before 
 the execution of the obligation sued on, it is unnecessary for us to de- 
 cide whether the charter so far restricts the power of the corporation 
 to make contracts within the scope and purpose for which the charter 
 was granted, as to prohibit the making of this contract until such 
 subscription is made. But it is insisted that the corporation could 
 not elect a president or a board of directors, nor confer the power on 
 them, when elected, to make contracts until after the subscription of 
 $60,000 of stock should be made, and for this reason it is urged that 
 the obligation sued on, and which was made by the president and 
 secretary on behalf of the company, should be held as made without 
 the proper authority of the corporation. 
 
 We do not consider the position a sound one. There is no restric- 
 tion in the charter upon the exercise, by the corporation, from the 
 moment of its creation, of any of its corporate powers, unless it can 
 be implied from the terms of the second section, fixing the amount of 
 the capital stock, as hereinbefore quoted. 
 
 It has been seen that the subscription of the prescribed amount of 
 capital stock is not a precedent condition to the organization of the 
 corporation, that the corporation was created by the very terms of 
 the charter, eo instanti with its acceptance by the corporators. The 
 charter does not prescribe how nor when the subscription is to be 
 made, nor the time at which the subscription is to be made payable, 
 nor does it attach any disability to the corporation prior to the sub- 
 scription. It makes no provision as to how the stock shall be divided 
 among the corporators named, nor as to the terms on which new cor- 
 porators should be admitted. All these were necessarily left to the dis- 
 cretion of the corporation, and the power to regulate those matters 
 was also expressly granted to the corporation as it was created by the 
 charter, by the provision contained in the first section of that instru- 
 ment, that the corporation might, "make all by-laws, rules and regu- 
 lations for the management of its business, property and effects, and 
 the transfer of its stock, as to them may seem best." 
 
 See notes to State v. Dawson, and Benbow v. Cook, infra, pp. 413, 416. 
 See, also, Angell & Ames, 81-95; Beach, 15; Boone, 23,24; Clark, 
 23,24; Cook, 499, 640; Elliott, 23-25; Field, 23-26; Grant, pp. 
 *18-*24; Morawetz, 21-23, 25, 26, 40; Taylor, 449; 1 Thompson, 52, et 
 seq.; VII Thompson, 8160.
 
 412 THE STATE V. DAWSON. 86 
 
 Sec. 86. The offer may be withdrawn before acceptance. Accept- 
 ance is essential. 
 
 THE STATE, Ex REL., v. DAWSON. 
 1861. IN THE SUPREME COURT OF INDIANA. 16 Ind. Rep. 40-43. 
 
 Appeal from the Clark circuit court. 
 
 PERKINS, J. Information against the defendants, charging that 
 they are pretending to be a corporation, and to act as such, when they 
 are not a corporation. It charges that in January, 1849, the legisla- 
 ture of the state of Indiana enacted a special charter of incorporation 
 (which is set out at length) for a railroad from Fort Wayne. Indiana, 
 to Jejfersonville, to be called the Fort Wayne and Southern Rail- 
 road ; that the persons named in the charter as directors did not ac- 
 cept said charter till June 2, 1852, when they did meet and accept the 
 same, and organized under it. It is alleged that the defendants are 
 assuming to act under said charter, never having organized under any 
 other. The court below sustained a demurrer to the information, thus 
 holding the defendants to be a legal corporation. 
 
 The present constitution of Indiana took effect on November \, 
 1851. It contains these provisions: 
 
 "All laws now in force, and not inconsistent with this constitution, 
 shall remain in force, until they shall expire or be repealed." Sched. 
 (i sub. sec.) of Constitution. 
 
 "Corporations, other than banking, shall not be created by special 
 act, but may be formed under general laws." Art. xi, 13. 
 
 "All acts of incorporation for municipal purposes shall continue in 
 force under this constitution, until such time as the general assembly 
 shall, in its discretion, modify or repeal the same." Sched., supra, 
 sub. 4. 
 
 The charter for the Fort Wayne and Southern Railroad was not a 
 charter for municipal purposes, and hence was not specially continued 
 in existence. Article n, 13, above quoted, prohibits the creation 
 of a corporation by special act or charter, that is, as we construe the 
 prohibition, through or by virtue of, such special act or charter, after 
 November i, 1851. The policy that induced the prohibition, as well 
 as its literal import, demands this construction. It is necessary for 
 us to ascertain, then, when the defendants, if ever, were created a 
 corporation. The simple enactment of the charter for the corpora- 
 tion by the legislature, did not create the corporation. It required 
 one act on the part of the persons named in the charter to do that, 
 viz. : acceptance of the charter enacted. 
 
 Says Grant in his work on corporations, vide, p. 13 "Nor can a 
 charter be forced on any body of persons who do not choose to ac- 
 cept it." And again at p. 18, he says, "The fundamental rule is this: 
 no charter of incorporation is of any effect until it is accepted by a ma- 
 jority of the grantees, or persons who are to be the corporators under
 
 86 WITHDRAWAL OF OFFER. 4 J 3 
 
 it. Bagge's case, 2 Brownl. & G. 100, s. c. i Roll. Rep. 224; Dr. 
 Askew's case, 4 Burr. 2200; Rutter v. Chapman, 8 M. & W. 25; 
 per Wilmot, J. , Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1661. 
 This is analogous to the general rule that a man can not be obliged to 
 accept the grant or devise of an estate. Townson v. Tickell, 3 B. & 
 Aid. 31." See, also, Ang. & Am., 83, where it is said, if a charter 
 is granted to those who do not apply for it, the grant is said to be in 
 Jieri till acceptance. We need not inquire whether this rule extends 
 to municipal corporations in this country. As to what may constitute 
 an acceptance we are not here called on to decide, as the information 
 expressly shows that there was none in this case till June, 1852, 
 which fact is admitted by the demurrer. 
 
 The grant of the charter in question, then, to those who had not 
 applied for it, was but an offer, on the part of the state ; a consent 
 that the persons named in the charter might become a corporation, 
 might be created such an artificial being by accepting the charter 
 offered. But an offer, till accepted, may be withdrawn. In this case, 
 the offer made by the state in 1849 was withdrawn by the state No- 
 vember i, 1851, by them declaring that no corporation, after that 
 date, should be created except pursuant to regulations which she, in 
 future, through her legislature would prescribe. 
 
 This pretended corporation, then, was not created before Novem- 
 ber i, 1851, and it could be created afterward only by the concurrent 
 consent of the state and the corporators. But, at that date, the con- 
 stitution prohibited both the state and corporators from giving consent 
 to such a corporation, to wit: One coming into existence through a 
 special charter; and hence necessarily prohibited the creation thereof. 
 This decision accords with that of the supreme court of the United 
 States in Aspinwall v. Daviess County, 22 How., p. 364, where it 
 was held that the new constitution prohibited a subscription of stock 
 to the Ohio and Mississippi Railroad Company, authorized by the 
 charter of the corporation, granted under the former constitution and 
 actually voted by the people of the county under that constitution. 
 
 Whether, as a matter of fact, the charter in this case was accepted 
 under the old constitution, must be determined on a trial of the cause 
 below. 
 
 Had the provision in our constitution, like that on this subject in the 
 constitution of Ohio, ordained that the legislature should "pass no 
 special act conferring powers," the restraint would clearly have been 
 imposed alone upon future legislative action; but, in our constitution, 
 the restraint is plainly imposed upon the creation, the organization 
 of the corporation itself. See The State v. Roosa, n Ohio St. Rep. 16. 
 
 Per Curium. The judgment is reversed with costs. Cause re- 
 manded for further proceedings in accordance with this opinion. 
 
 Note. The original act provided that Allen Hamilton and others named 
 "are hereby constituted a body corporate," etc. In the later case, State v. 
 Dawson, 22 Ind. 272 (1864), it appeared that the charter had been applied for 
 by the corporators ; this was held to be an acceptance. See 1807. Ellis v. 
 Marshall, 2 Mass. 269, 3 Am. Dec. 49, supra, p. 306; 1820, Lincoln & K. B. v. 
 Richardson, 1 Maine (1 Greenl.) 79, 10 Am. Dec. 34; 1839, Thomas v. Dukin,
 
 414 BENBOW V. COOK. 8/ 
 
 22 Wend, 9, supra, p. 19; 1842, State v. B. &O. R. R., 12 Gill & J. (Md.) 399, 
 38 Am. Dec. 317; 1847, Haslett v. Wotherspoon, 1 Strob. Eq. (S. C.) 209; 
 1859, Cypress Pond Draining Co. v. Hooper, 2 Mete. (Ky.) 350; 1870, Lyons 
 v. Orange, A. & M. R. Co., 32 Md. 18; 1872, Mason v. Finch, 28 Mich. "282; 
 1875, P. W. & B. R. Co. v. Kent Co. R. Co., 5 Houst. (Del.) 127; 1885, Smith 
 v. Silver Valley M. Co., 64 Md. 85, 54 Am. Rep. 760, 20 Atl. 1032; 1893, 
 Atkinson v. Fennill, 14 Ky. Law Rep. 922. See references to text-books, 
 supra, p. 411. 
 
 Sec. 87. Acceptance may be inferred from signing articles, hold- 
 ing meetings, organizing and acting as a corporation. 
 
 BENBOW v. COOK. 1 
 
 1894. IN THE SUPREME COURT OF NORTH CAROLINA. 115 N. C. 
 Rep. 324-334, 44 Am. St. Rep. 454. 
 
 ["Plaintiff sued to recover possession or damages for non-delivery 
 of cotton mills machinery claimed under a mortgage from the Crown 
 Mills corporation, and which defendant had seized as sheriff and sold 
 under executions against the corporation."] 
 
 AVERY, J. If the corporation never had any lawful existence, as 
 the defendant contends, of course it did not authorize the execution 
 of a mortgage some months after it is claimed that it was duly organ- 
 ized. The statute, The Code, 677, provides that "Any number of 
 persons, not less than three, who may be desirous of engaging in any 
 business not unlawful, except building railroads or banking or insur- 
 ance, at any place within the state, may, if it please them, become 
 incorporated in the manner following," etc. It seems that three per- 
 sons, Amos Ragan, O. S. Causey and R. E. Causey, as the sole cor- 
 porators of a manufacturing company, having ten shares each, signed 
 articles of agreement before the clerk of the superior court of Guilford 
 county, which were duly recorded. Having complied with the re- 
 quirements as to the form of the articles of agreement and caused the 
 proper record to be made, the three persons named as sole corpora- 
 tors became a body politic for the purposes set forth in the agreement. 
 The Code, 678, 679. When corporate powers are granted by a 
 special instead of a general act of the legislature, there must be evi- 
 dence of acceptance by the corporators and compliance with all con- 
 ditions precedent prescribed by law, in order to show affirmatively 
 that the corporation is lawfully organized. But in our case every 
 corporator affixed his hand and seal to the articles of agreement re- 
 corded, and by such signature and the recording of the instrument, 
 became invested with all the powers which it was contemplated by law 
 to confer in such cases. The Code, 679. Private corporations are 
 formed when the necessary contractual relations are created between 
 the persons clothed by law with the powers of a body politic. I Mor- 
 awetz 24. The existence of the company depends upon the fact of 
 the acceptance of the privilege (i Morawetz 26), and it was evidently 
 
 1 Only the part of the decision relating to acceptance of charter is given.
 
 87 EVIDENCE OF ACCEPTANCE. 415 
 
 the intent of the legislature that the signature to the articles should be 
 deemed an acceptance, leaving no other condition precedent to be 
 performed, except the recording, this being a substantial compliance 
 with the requirements of the law. i Morawetz, 32, 33, 27 et seq. In 
 such cases the corporators are usually constituted only a guasi-corpo- 
 ration, "whose sole function is to bring into 'existence the corpora- 
 tions consisting of the real body of stockholders." But in our case 
 the signers of the certificate, as appears from the recorded articles of 
 agreement, were not only the sole corporators, but the only stock- 
 holders, and, as between themselves, constituted a corporate body, 
 wanting only formal organization in order to transact business with 
 the public. 
 
 The law, intending to protect the rights of minorities, requires that 
 notice of the meetings of the stockholders of a corporation shall be 
 given to every person who holds a share of the stock, and, if no other 
 mode of notification be provided in the charter or by-laws of a com- 
 pany, or by statute, express notice must be given. The owner of 
 every unit of interest constituting a part of the aggregate body of stock 
 is entitled to the opportunity which due notice affords him of protect- 
 ing it, by being present and participating in meetings, i Cook on 
 Stockholders, 574. The reason for this rule is plainly met, so far 
 as the organization of the company is concerned, when it appears that 
 all the stockholders assented to the call of the meeting, participated 
 in it, and acquiesced in its consequences afterwards. The state has 
 not complained or taken any steps to question its rights or annul its 
 powers as a body politic. If we concede that section 665 of The 
 Code was intended to apply in such a case as this, the only purpose 
 of the legislature in enacting it was to provide that every corporator 
 should have notice of the time and place of a meeting for organiza- 
 tion. There was no necessity for proving a compliance with the 
 statute, when every person interested had express notice and partici- 
 pated in the meeting. Angell & Ames on Corporation, 492. The 
 strict requirements as to notice, being intended to protect stockhold- 
 ers, may be waived by them, and when they do waive it, "the meet- 
 ing and all proceedings are as valid as they would be had the full 
 statutoiy notice been given." i Cook, supra, 599. 
 
 It is always presumed that notice is given, and that any meeting of 
 which a minute is found in the proceedings of the stockholders of a 
 corporation, was regularly and lawfully held. Cook, 600. When 
 a party assumes the burden of showing irregularity, and actually 
 shows that the meeting for organization, or any subsequent one, was 
 not called in the manner prescribed by law or the by-laws of the com- 
 pany, the action of the meeting will nevertheless be declared valid 
 when it appears that every stockholder who did not participate in the 
 meeting ratified its action afterward. Stutz v. Handly, 41 Fed. Rep. 
 531; Nelson v. Hubbard, 96 Ala. 238; Campbell v. Argenta, etc., 
 Co., 51 Fed. Rep. i. 
 
 If the three directors, Amos Ragan, O. S. Causey and R. E. Cau- 
 sey, met at High Point without notice, they being also the holders of
 
 416 BENBOW V. COOK. 87 
 
 all the stock, it was a waiver of the requirements of the by-laws that 
 such meeting should be called by the president or a majority of the 
 directors. Nelson v. Hubbard, supra; Jones v. Turnpike Co., 7 
 Ind. 547. Whether the directors met at Greensboro or High Point, 
 and whether in pursuance of previous notice or not, is immaterial, if 
 in fact they met together and agreed to create the indebtedness and 
 authorize the execution of the mortgage to secure it, they, as stock- 
 holders and directors, constituting, as they did, the whole of each 
 body, waived objection to the want of the notice prescribed by the 
 by-laws, and the failure to make a record of their proceedings at that 
 time does not affect the validity of their action. Handly v. Stutz, 139 
 U. S. 417. The signing of the minutes at another time would not 
 affect the validity of the action of the board, if in fact all three met, 
 discussed the question of executing the mortgage and agreed to what 
 was afterward entered on the minutes and signed by them. It is true 
 that the assent of each of the three, obtained at different times or 
 places, to a certain course of proceedings, would not bind them, be- 
 cause it would not be the action of the directors as a collective body ; 
 but if, as a body, they assemble together and conferred in taking cer- 
 tain action they waived all objection to irregularities, though the meet- 
 ing may have been informal and the minutes may not have been then 
 recorded. The case of Duke v. Markham, 105 N. C. 131, is clearly 
 distinguishable in that there the stockholders at no time assembled as 
 a body, but the assent of each individual was asked and obtained, 
 separately. It is not contended that the consent of each individual 
 has the same force as the concurrence of all assembled together, given 
 after an opportunity to discuss their proceedings, interchange views 
 and acquire benefit of such consultation. * * * 
 New trial granted. 
 
 Note. See 1833, Russell v. McLellan, 14 Pick. (Mass.) 63; 1839, Penobscot 
 Boom Corp. v. Lamson, 16 Maine 224, supra, p. 283; 1840, Newton v. Carbery, 
 5 Cranch C. C. 632, Fed. Gas. 10.190; 1848, Blandford Third School Dist. v. 
 Gibbs, 2 Gush. (56 Mass.) 39; 1852, Baldwin v. Hillsboro & C. R. Co., 1 Ohio 
 Dec. 532; 1855, Taylor v. Newberne, 2 Jones Eq. (N. C.) 141; 1864, State v. 
 Dawson, 22 Ind. 272; 1872, Lycoming Fire Ins. Co. v. Buck, 1 Luz. Leg. Reg. 
 (Pa.) 357; 1875, Heath v. Silverthorn Lead M. Co., 39 Wis. 146; 1883, McKay 
 v. Band, 20 S. C. 156; 1894, Glymont Imp. Co. v. Toller, 80 Md. 278, 30 Atl. 
 651 ; 1896, Quinlan v. Houston & T. Ry. 89 Tex. 356, 34 S. W. 738. See, also, 
 I Thompson, 60, 61 ; III Thompson, 3652; IV Thompson, 5266, 5388. 
 5416; VI Thompson, 7703, et seq. ; VII Thompson, 8161. And other text 
 books cited, supra, p. 397.
 
 89 ACCEPTANCE OF AMENDMENTS. 417 
 
 Sec. 88. Acceptance must be within the state offering the charter. 
 MILLER v. EWER, 27 Maine 509, 46 Am. Dec. 619, infra, p. 841. 
 
 Sec. 89. Renewals, extensions and amendments, must also be ac- 
 cepted, to make them effective. 
 
 COMMONWEALTH, Ex REL. CLAGHORN ET AL. v. CULLEN. 1 
 
 1850. IN THE SUPREME COURT OF PENNSYLVANIA. 13 Pa. St. 
 Re P- 'SS-HS' 53 Am - Dec - 45- 
 
 Error to the Common Pleas of Philadelphia county. 
 
 An information in the nature of a quo warranto was filed in the 
 court below on the ipth of May, 1849, by John W. Claghorn and 
 others, to show cause why Peter Cullen and others claimed to enjoy 
 the franchises, etc., of The Equitable Life Insurance Company, of 
 Philadelphia. It set forth that a charter was granted in May, 1848, 
 which provided that the corporate powers of the company should be 
 exercised by a board of trustees, to consist of six persons and a sec- 
 retary, to be elected on the second Monday in December, annually, 
 or within forty days thereafter. Until the first election the board of 
 trustees was to consist of the seventeen persons named as commis- 
 sioners to receive subscriptions, and that thereupon the company went 
 into corporation, and Claghorn was elected president; that on the 
 i8th of January, 1849, within the forty days after the first election 
 should have been held, a supplement to the charter was passed, which 
 provided that the board of trustees should thereafter consist of seven- 
 teen persons and secretary, to be elected by the stockholders in the 
 manner prescribed by the charter, and that the board as it consisted 
 on the ist of January immediately preceding, should be continued in 
 office until the next annual election thereafter; that while the com- 
 pany were in operation under these two acts, the passage of another 
 supplement was by some persons obtained on the 9th of April, 1849, 
 which declared that the board of trustees should thereafter consist of 
 seventeen persons, to be elected in May, annually, the first election 
 to be held in May, 1849, and repealed the supplement of January; 
 that the act last mentioned had been obtained without the assent of 
 the board of trustees or of the company, and that although certain of 
 the stockholders might have assented to it, such assent had not been 
 given by the trustees nor by the company in meeting duly convened, 
 and that said act was in no way binding; that nevertheless Peter Cul- 
 len, vice-president of the company, called a general meeting of stock- 
 holders, to elect seventeen trustees on the 7th of May ; that the board 
 
 1 Arguments omitted. 
 27 WIL. CASES.
 
 41 8 COMMONWEALTH V. CULLEN. 89 
 
 of trustees, before the day of election so named, passed resolutions re- 
 fusing to accept the last supplement declaring the call for the meet- 
 ing unauthorized, and appointing a committee to attend at the meet- 
 ing of stockholders, to protest against any proceedings under that call ; 
 that the said Cullen, with others, still persisted in convening the 
 meeting of stockholders at which the defendants were elected trustees, 
 and the parties so elected thereupon ejected the old board of trustees, 
 and usurped the franchises of the company. 
 
 The answer, after admitting the incorporation of the company and 
 its going into operation, set forth that certain of the defendants who 
 were of the number of commissioners and, therefore, of the first board 
 of trustees, were not informed by the other members of the board of 
 the intended passage of the supplement of January, 1849, in manner 
 and form as set forth, yet that it was produced by Mr. Claghorn at a 
 meeting of the board on the 24th of January, 1849, and that, although 
 no acceptance thereof was ever made, either by the board or the stock- 
 holders, that the trustees continued to hold their offices under it; that 
 while thus in office the supplement of April was passed, which was 
 not only done with the knowledge of a large number of the trustees, 
 but that the majority in value of the stockholders signed an acceptance 
 of it and held an election in pursuance of its provisions. The answer 
 set forth at length the proceedings of this election. To this the relators 
 demurred. 
 
 The court below decided that there had been no such acceptance of 
 either supplement as to render it binding on the corporation, and 
 made the following decree: 
 
 This cause came on to be heard at the June term, and was argued 
 by counsel, and thereupon, upon consideration thereof, the court do 
 order, decree and adjudge as follows, this twenty-ninth day of Sep- 
 tember, A. D. 1849, to wit: 
 
 That judgment of ouster be entered against the defendants, and for- 
 asmuch, as in the opinion of the court, the relators are not entitled to 
 possess and enjoy the offices and franchises of the said "Equitable 
 Life Insurance Company," the court do order an election to be held 
 for trustees of said company at a general meeting of the stockholders 
 convened for that purpose by ten days' public notice in two or more 
 of the daily papers of the city of Philadelphia, on Thursday, the 
 eleventh day of October, A. D. 1849, between the hours of ten A. M. 
 and two p. M., and the court do appoint Frederick Fraley, Charles F. 
 Lex and William G. Alexander, Esqs., trustees to take charge of 
 said corporation until others shall be elected in their stead, pursuant 
 to the laws of this commonwealth, regulating said corporation and 
 this order of court ; and the court do direct that the trustees appointed 
 as aforesaid by this decree, shall give the public notice aforesaid, and 
 shall be the judges at said election and shall receive the votes of said 
 stockholders duly qualified to vote, and shall make- return to the court 
 on Saturday, October 13, 1849, of the proceedings to be had by virtue 
 of this decree. 
 
 The relators objected to this decree being entered on the ground
 
 89 ACCEPTANCE OF AMENDMENTS. 419 
 
 that the argument had been directed to the validity of the April sup- 
 plement, and not to that of January. An argument was then ordered 
 by the court as to the efficacy of the January supplement, and in the 
 meantime no decree was entered. After this argument the decree 
 was entered as above. 
 
 The relators took out a writ of error, of which they notified the 
 three trustees appointed by the court, and warned them not to pro- 
 ceed with the election. The court below, under the i5th section of 
 the act of I3th of June 1836 (Pur. 990, quo warranto), then made a 
 decree awarding execution of their former decree, notwithstanding 
 the writ of error. The election was held and six of the defendants 
 elected trustees. These proceedings the court confirmed and author- 
 ized the delivery of the property of the corporation by the three trust- 
 ees appointed by the court, to the trustees thus elected. 
 
 The relators assigned for error: 
 
 1. "That the court below erred in deciding that the relators were 
 not entitled to possess and enjoy the offices and franchises of the 
 Equitable Life Insurance Company. 
 
 2. "That said court erred in ordering that an election for trustees of 
 said company be held on October n, 1849, and in appointing Fred- 
 erick Fraley, and others, trustees to take charge of the corporation in 
 the interim." 
 
 BELL, J. So far as we may judge from the pleadings and accom- 
 panying exhibits, under which the cause is brought before us, it pre- 
 sents the history of a struggle between rival parties for the govern- 
 ment of a private corporation, pending which, each has sought the 
 aid of special legislation, apparently too hastily accorded to both. 
 Such a course is usually detrimental to the best interests of companies 
 entrusted with the management of capital; and, it is to be feared, the 
 present instance can not be esteemed an exception. Both the supple- 
 mental acts, here in question, propose to graft upon the original act 
 of incorporation, some very material alterations. Each provides for 
 an increase in the number of trustees and for changing the time of 
 their election. The earlier of them continued in office for an addi- 
 tional year the first board of managers, and directs the election of a 
 secretary by the whole body of corporators. If, under the facts de- 
 veloped, this is to be regarded as a valid amendment of the charter, 
 the second supplement of April, 1849, becomes of decisive impor- 
 tance, not only because it fixes a new time for the annual election, 
 and restores the appointment of secretary to the board of trustees, 
 but by force also of its repealing clause, is destructive of the first 
 supplement. Should, however, this be decreed invalid, then the 
 changes proposed by the younger enactment, in the organization of 
 the board, as originally designed, and the time of the election of its 
 members, must be deemed radical in their character. 
 
 Of the numerous decisions that have been pronounced on this sub- 
 ject, it is unnecessary to bring to view other than the case of 
 Dartmouth College v. Woodward, 4 Wheat. 518, and our recent deter- 
 mination of in Brown v. Hummell, 6 Barr. 86, to prove that sub-
 
 42O COMMONWEALTH V. CULLEN. 89 
 
 gtantive alterations, such as those proposed by each of these supple- 
 mentary acts, are not to be taken as parcel of a private charter, 
 without the previous concurrence of the corporators, manifested in 
 some way recognized by the law. Unless so sanctioned they are 
 esteemed as unauthorized interferences with a solemn compact be- 
 tween the public and the individuals composing the corporation, and, 
 therefore, obnoxious to the constitutional prohibition touching the 
 obligation of contracts. Whether this sanction has been extended to 
 both, or either of the supplements of January and April, are the lead- 
 ing questions presented for decision. Each of the contending parties 
 claim this advantage for the enactment of their own procurement, and 
 deny it to the antagonist statute. Neither of them, however, pretend 
 that there was any express, formal and recorded act of acceptance, either 
 by the corporators at large or the board of trustees, nor, as will be pres- 
 ently seen, was this absolutely necessary. That the then board of 
 trustees tacitly gave their assent to the older supplement is not to be de- 
 nied, for, while the petition in effect asserts this, the answer admits it was 
 produced as a recognized act by the president of the board, at a meet- 
 ing held on. the 24th of January, 1849, anc ^ that the trustees, including 
 several of the defendants, continued to hold their offices by virtue of 
 the supplement after the period for which they were first appointed. 
 
 Had these officers been clothed with power to accept or reject this 
 statute, it is not to be doubted, their silent acquiescence in its provis- 
 ions and continued exercise of authority by virtue of it, would have 
 been sufficient to establish their assent. 
 
 Anciently, indeed, it was supposed that from the very nature of 
 an artificial corporate body, it could legally manifest its acts and con- 
 clusions only by the use of its corporate seal, affixed to a deed in pur- 
 suance of authority previously given. But this idea has long since 
 given way to the more reasonable doctrine that the act of assent 
 of a corporation may be inferred from such circumstances of com- 
 mission or omission as would raise a similar presumption in favor of 
 or against a natural person. Corporations, it is now held, may be 
 affected by implication, just as individuals are, and where its action 
 or acquiescence are the natural result, or necessary accompaniment of 
 some other supposed precedent fact, the existence of that fact will be 
 assumed, both for purpose of charge and discharge. In the leading 
 case of the Bank of the United States v. Dandridge, 1 1 Wheat. 70, 
 Mr. Justice STORY stated the principles thus : "Acts done by corpora- 
 tion, which pre-suppose the existence of other acts to make them 
 legally operative, are presumptive proof of the latter," and this is 
 true, though no minute of them can be found among the records 
 of the corporation. By way of illustration, he instanced the case 
 of one notoriously acting as cashier of a bank, and so recognized by the 
 directors, which is sufficient of itself to raise a presumption of his due 
 appointment, and his acts as cashier will bind the institution, though 
 no written proof of the appointment can be produced. Both in 
 England and with us, this principle has been liberally extended and 
 applied, where the questions were of the acceptance of a charter. In
 
 89 ACCEPTANCE OF AMENDMENTS. 421 
 
 this country, where private corporations are very numerous, and con- 
 stant use of their privileges naturally engenders indolence in the crea- 
 tion of regular evidence of corporate acts, and negligence in its pres- 
 ervation, the recognition of presumptions, as legitimate sources of 
 proof, was a legal necessity. While, therefore, a charter granted to 
 persons -who have not solicited it, is said to be in jieri until after 
 acceptance, yet it is not indispensable to show a -written instrument, 
 or even a vote acceding to the grant, unless the charter expressly pro- 
 hibit it; every formality may be presumed ', from a continual exercise 
 of the corporate powers. 
 
 This is also true of assent to a new or additional charter by an ex- 
 isting corporation, which may, in like manner, be inferred from acts 
 or omissions inconsistent with any other hypothesis; and where the 
 new grant is beneficial in its aspect, it is thought very little is required 
 to found a presumption of acceptance. Bank v. Dandridge, 12 Wheat. 
 71 ; The Charles River Bridge v. Essex Bridge, 7 Pick. 334; Trott v. 
 Warren, 2 Fair'd 227; Bridge Co. v. Bragg, 2 N. H. Rep. 102; 
 Riddle v. Proprietors of Canals, 7 Mass. 184; Penobscot Co. v. 
 Lawson, 4 Shep. 924; Kings v. Avery, i Term Rep. 575; s. c. 2 
 Term Rep. 515; Newling v. Francis, 3 Term Rep. 189. 
 
 Nay, a single unequivocal act may be potent enough conclusively to 
 establish assent; as, for instance, if a suit be brought and persisted in, 
 where it could be sustained only under the provisions of the amended 
 charter. A similar observation was made in deciding the Lincoln 
 and Kentucky Bank v. Richardson, I Greenl. Rep. 460, and the 
 court added that the stockholders of the bank are bound by every act, 
 which amounts to an acceptance on the part of the directors. But if 
 by this was meant that the whole body of the corporation may gener- 
 ally be so bound by the acts of their agents, selected to administer the 
 affairs of the corporation, the proposition can not be acceded to. 
 
 As is well remarked of this proposition in another place, it is 
 founded upon the consideration that certain persons have been in- 
 vested with sufficient power to bind the whole body by their accept- 
 ance, for where it is otherwise the charter must be accepted by a ma- 
 jority of the whole number of the company. Angell & Ames on Cor- 
 porations, 53. Corporate powers are usually distinguished into leg- 
 islative, electoral and administrative; in private corporations ag- 
 gregate, though sometimes all the members act immediately in the ad- 
 ministration of its affairs, usually, for the sake of convenience, the 
 direct management is entrusted by the charter to certain officers, or 
 board of managers, elected by the members at large, though deriving 
 their ordinary powers from the act of incorporation. These officers 
 exercise the legislative and administrative functions the former in 
 the institution of by-laws for the general government of the company, 
 the latter in t/te superintendence and execution of its general business. 
 Union Turnpike Company v. Jenkins, i Caine 381. 
 
 In other instances, a select few, representing all those interested in 
 the object of the association, are erected into and vested with all the pow- 
 ers of a corporation, and sometimes the selected branches are divided into
 
 422 COMMONWEALTH V. CULLEN. 89 
 
 distinct classes, as is the case in the corporation of St. Mary's Church, 
 in this city. When the corporate existence is devolved on a board of 
 officers, they not only wield the whole corporate authority, but may 
 apply for and agree to radical changes in the instrument to which 
 they owe their corporate being. When such a board is separated 
 into intregal parts, occupying distinct positions, both must concur in 
 any act, having for its 'object an alteration of the fundamental law, 
 though in the exercise of the ordinary powers of a corporation, they 
 act jointly, and are governed by a majority of the united bodies. 
 Case of St. Mary's Church, 8 S. & R. 517. But these and other 
 authorities evidence that ivhere the whole body of stockholders, or 
 other persons in interest, compose the corporation, the right of assent- 
 ing to any proposed change in the charter resides in them, though 
 ordinarily represented by a board of directors charged -with the exer- 
 cise of the corporate po^vers. These in their capacity of managers 
 have no authority, either to call for or assent to a change of the cor- 
 porate constitution, but by the agreement of a majority of the corpo- 
 rators. Being neither legislative nor administrative, the express 
 assumption of such authority by the servants of the corporation would 
 be an usurpation, for it is paramount not only to every corporate func- 
 tion, but the constitution itself, and as it may touch the very existence 
 of the body, it can only be exerted by that body. It can not then be 
 said that the assent of the original trustees to the January supplement 
 is such an act of acceptance as will bind the corporation. Yet, as we 
 have seen, a long acquiescence by the members of the company in 
 acts and declarations of the trustees, recognizing the supplement as 
 part of the charter, might constitute conclusive evidence of assent to 
 it. Was there here any such acquiescence? Is there anything shown 
 from which we can safely draw the inference that the company, know- 
 ing of the supplement, agreed to it as a portion of their constitution ? 
 
 Perhaps it may be said that as the terms of the additional grant 
 were favorable to the company, slight circumstances would justify a 
 presumption of acceptance. But is there any ground, however nar- 
 row, upon which we can safely erect such an hypothesis ? I have 
 looked with some solicitude, but in vain, for a precedent that might 
 justify an affirmative answer to this proposition, to which my judg- 
 ment refuses its assent. 
 
 It does not appear that the company was ever officially notified of 
 the enactment. The defendants swear it was first produced at a 
 meeting of the board by Mr. Claghorn, then president, on the 24th of 
 January. By the provisions of the original charter, the trustees then 
 in office might legally continue until about that time. From thence 
 until the enactment of the second supplement, was a little over two 
 months. During this interval we are not informed that the trustees 
 or their agents performed any official act, or distinctly exerted the 
 corporate power with the knowledge of their constituents. For aught 
 the pleadings show, they sat still with folded arms, doing nothing, 
 and requiring nothing. Now it seems to me, that the mere omission 
 of the stockholders to assemble in formal meeting within that period,
 
 89 ACCEPTANCE OF AMENDMENTS. 423 
 
 for the purpose of electing other trustees, affords no presumption of 
 assent sufficient to fasten upon them radical changes of their charter. 
 Mere non-action for so brief a time ought not to draw after it a con- 
 sequence so serious, particularly when it is recollected that the call of 
 such a meeting would come most appropriately from the board itself. 
 In answer to this it is not sufficient to suggest that a failure to elect 
 trustees ought to be received as strong proof of acceptance ; since, 
 without this, a dissolution of the corporation must ensue. Perhaps, 
 anciently, such would have been the result; but the present doctrine 
 is, that a corporation does not become defunct from a simple neg- 
 lect to elect officers, while the capacity to elect remains in the mem- 
 bers. Lehigh Bridge Co. v. Lehigh C. & N. Co., 4 Rawle 24; Slee 
 v. Bloom, 5 John. Ch. Rep. 336. It is said a corporation possesses a 
 strong and tenacious principle of vitality (Corp. of Colchester v. Sea- 
 ber, 3 Burr. 1816), and it therefore requires a long non-user of fran- 
 chises to induce the courts to presume a surrender of corporate rights. 
 Briggs v. Penniman, i Hopk. Ch. Rep. 300. 
 
 It follows the argument derives no aid from this source to establish 
 a presumption of assent. But is there not evidence of positive dis- 
 sent? We find that very shortly after its passage a sentiment of act- 
 ive hostility to the first supplement is manifested by a majority in 
 number and value of the stockholders. When this began, we are not 
 precisely informed, but we know that in less than three months 
 after the date of the objectionable enactment, the feeling of opposi- 
 tion led to its repeal. It is fair, therefore, to infer it commenced at 
 the moment the law was communicated to the board of trustees. How, 
 then, with a knowledge of this important fact, can we regard the as- 
 sertion that a majority of the company had agreed to accept it as an 
 approved amendment of the first act of incorporation ? It is, how- 
 ever, claimed that the supplement of April recognizes that of Janu- 
 ary to be in full force, because the latter repeals the former. The 
 position is that if invalid, a formal repeal of the unaccepted act was 
 unnecessary. Admitting this, I am at a loss to perceive how mere 
 supererogation can derive an unintended positive effect from its non- 
 usefulness. Besides, the repealing clause is not the work of the dis- 
 senting members of this corporation. Their rights are consequently 
 unaffected by it. But the argument in favor of the first supplement 
 is chiefly founded upon certain passages in the answer of the defend- 
 ants, by which it is said they concede the first board of trustees were 
 continued rightfully in office by virtue of this supplement. It is ob- 
 vious, however, these passages are but echoes of the relator's petition, 
 introduced, not in confirmation of it, but with reference to the im- 
 mediately preceding denial of acceptance formally averred, and thus 
 putting in issue the title of the relators. It is replied, this denial is 
 not responsive to the bill, which does not distinctly aver acceptance. 
 I think this is a mistake. Although in this part of the complaint 
 there is no direct assertion of the assent of the company to the Janu- 
 ary supplement, the act is distinctly referred to as an operative por- 
 tion of the charter, which it could not be without acceptance. But
 
 424 COMMONWEALTH V. CULLEN. 89 
 
 were this not so, the counter allegation would be by no means value- 
 less. In equity proceedings, the distinction seems to be that an an- 
 swer, if responsive, is evidence of the fact it alleges, requiring testi- 
 mony to rebut it, but if the matter set forth be not responsive, it is 
 not evidence of that matter at all, but must be proved, i Smith's 
 Ch. Pr. 272, in note; Clark's Executors v. Van Ramsdyk, 9 Cranch 
 160; Hart v. Ten Eyk, 2 Johnson's Ch. Rep. 90. But this is in fact 
 a proceeding at common law. Under its system, a new defensive 
 averment, if it answers the plaintiff's case, is admissible. As, under 
 our act of 1840, to be presently more particularly noticed, the relator's 
 title may be put in issue under the quo tvarranto, any allegation 
 affecting it may be material, and its truth will be conceded by a de- 
 murrer. If, therefore, in this instance, we adhered strictly to tech- 
 nical rule, we might, perhaps, be compelled to say that the plaintiffs, 
 by their demurrer, admitted the non-acceptance of the first settlement 
 and are thus concluded now to deny it. But as we think neither 
 party contemplated this, when framing their pleadings, we prefer to 
 rest our conclusions, as to this part of the case, on the absence of 
 reliable proof of assent, either direct or inferential. 
 
 This brings us to the second question, whether there is an evidence 
 of the acceptance of the April supplement? Our own determination 
 in Shortz v. Unangst, 3 Watts & Serg. 45, following earlier decisions, 
 settles, that to make a vote of acceptance valid, as the act of a corpora- 
 tion, it should be passed at a meeting duly convened, after notice to all the 
 members. In such cases, congregated deliberation is deemed essential, 
 and where an opportunity for this is afforded, the decision of a majority 
 is binding, if no other mode be prescribed by the charter. The private 
 procurement of a written assent, signed by the majority of the members, 
 will not supply the want of a meeting. Such an expedient deprives 
 those interested of the benefit of miitual discussion , and subjects them to 
 the hazard of fraudulent representation and undue influence. Not- 
 withstanding the objection, however, it seems to be agreed that a -written 
 acceptance, though not executed at a meeting, may be sufficient, if signed 
 by all the stockholders or parties in interest. Davies v. Hawkins, 3 
 Maul. & Selw. 488; Stowv. Wyse, 7 Conn. Rep. 214; Livingston v. 
 Lynch, 4 John. Ch. Rep. 573 ; St. Mary's Church, 6 Serg. & Rawle 
 498. As this is not true of the paper of the 9th of April, 1849, the 
 defendants very properly disclaim it, as furnishing evidence of accept- 
 ance. But they rely on the unanimous act of the majority of stock- 
 holders at a meeting convened by public advertisement, for the pur- 
 pose of electing trustees, at which those now exercising that office 
 received the whole number of votes of those in attendance. I con- 
 cede there can scarcely be stronger evidence of acceptance than that 
 furnished by an election of corporate officers in pursuance of a new, 
 or the alteration of an old charter. King v. Larwoad, i Lord Raym. 
 32; Lewling v. Francis, 3 Term Rep. 189. Yet, like other corporate 
 acts, it is but presumptive evidence of the prior assent of the company, 
 by a vote of its members, at some supposed meeting, or at least of a
 
 89 ACCEPTANCE OF AMENDMENTS. 425 
 
 deliberate waiver of a vote by all in the corporation having that right. 
 But how can such a presumption be entertained, in the face of a re- 
 monstrance against the proposed election, made by some of the mem- 
 bers on the ground of non-acceptance of the younger supplement? 
 This is obviously out of the question. The record shows that the 
 same persons who signed the written acceptance, also signed the 
 requisition for a new election of trustees, claiming to be a majority of 
 the stockholders ; and that the votes subsequently cast were by the 
 same individuals. 
 
 All this was done in disregard of a formal resolution, adopted by 
 those then claiming to be trustees, repudiating the last supplement, 
 and denouncing as illegal the election proposed to be held under it. 
 This resolution was communicated by a committee appointed for that 
 purpose, to the subsequent electoral meeting, but without effect. It 
 will not do to say the resolution, as the act of a defunct body, was 
 naught. It, at least, served to express dissent, entertained and ex- 
 pressed by a portion of the members a dissent that could only be 
 legally overcome at a meeting regularly convened to consider the pro- 
 posed amendment. The opportunity to deliberate, and, if possible, 
 to convince their fellows, is the right of the minority, of which they 
 can not be deprived by the arbitrary will of the majority. That the 
 call for an election, and the subsequent steps were in contempt of this 
 right, is manifest. The attempt consequently defeats itself. We have, 
 therefore, no hesitancy in holding there is an entire want of proof 
 of the acceptance of either supplement. 
 
 Was the court of common pleas authorized, so to declare in this 
 proceeding, and so decree a new election ? The relators insist the 
 only question before that court .was as to the binding efficacy of the 
 April supplement; and that their title as trustees under the act of 
 January was not in issue. But this objection proceeds from too nar- 
 row an estimate of the act of the i3th of April, 1840; though the I2th 
 section of that statute speaks only of disputes between persons claim- 
 ing to be duly elected to fill any office, its purview is broad enough to 
 cover all questions arising on writs of quo ivarranto, between rival 
 claimants of elective offices, though some of them may, as here, claim 
 to hold by temporary legislative appointment. The object of the stat- 
 ute is to invest the court with power to settle the pretensions of all the 
 claimants in the same proceeding, whether they be complainants or de- 
 fendants, and w r hether in or out of possession. To exclude from its op- 
 eration corporate officers, who, like these plaintiffs, derived their first 
 appointment from the act of incorporation, in anticipation of a regu- 
 lar election, would be to sacrifice to literal interpretation, the plain 
 intent of the law-givers. The act speaks of disputed elections between 
 persons claiming to be duly elected, and these, doubtless, were prin- 
 cipally regarded in passing its provisions. But cases like ours are 
 within the mischief intended to be remedied, and so questionless 
 within the equity of the statute, which, being highly remedial, ought 
 to be so literally construed as to secure the attainment of substantial 
 justice. Here, then, is a case of contested election, intimately con-
 
 426 CHARTER FROM THE KING. 91 
 
 nected with the title set up by the plaintiff and almost necessarily in- 
 volving an investigation of it. Being within the object of the act, 
 which was to end disputes at a blow, that title was as open to inquiry 
 as the defendants. The result shows that neither party was entitled 
 to enjoy, and this put it within the authority of the court to order a 
 new election. This conclusion leaves to the company the right of de- 
 termining, in an orderly way, whether it will accept of either supple- 
 ment as an amendment of its charter, and if so, which of them? The 
 dispute now existing may be so settled as to leave no room for future 
 contest a consummation much to be desired by a business corpora- 
 tion situate as this is. It is gratifying to find that the conclusions of 
 the law are thus in harmony with the best interests of the corporators, 
 and we accordingly recommend that steps be taken as soon as prac- 
 ticable to determine this unhappy disagreement. 
 Proceedings affirmed. 
 
 Note. See 1854, Troy and R. Co. v. Kerr, 17 Barb. (N. Y.) 581; 1859, Ban- 
 gor, O. & M. R. Co. v. Smith, 47 Maine 34; 1866, City of San Antonio v. 
 Jones, 28 Tex. 19; 1874, Kenton County Court v. B. L. T. Co., 10 Bush (73 
 Ky.)529; 1876, Cincinnati, H. & D. R. Co. v. Cole, 29 Ohio St. 126; 1879, 
 State v. Sibley, 25 Minn. 387; 1889, Gibbs v. Baltimore C. G. Co., 130 U. S. 
 396, 9 Sup. Ct. 553; 1892, Miller v. Am. Mut. Ace. Ins. Co., 92 Tenn. 167, 20 
 L. R. A. 765; 1896, State v. Taylor, 55 Ohio St. 61, 44 N. E. Rep. 513. 
 
 ARTICLE III. THE CHARTER ITS CONTENTS. 
 
 Sec. 90. In general. The "means and instruments effecting in- 
 corporation may be numerous, consisting of statutes, articles 
 of association, deeds of settlement, by-laws and notices, some 
 of which are usually required to be recorded and others pub- 
 lished. The convenience of using some short term to express 
 all of these fundamental acts and instruments has led to the 
 adoption of 'constating instruments.' ' Field on Corpora- 
 tions, 28. 
 
 Note. See supra, p. 133. 
 
 Sec. 91. Under special charter from the king, illustration : 
 1769. The Dartmouth College Charter. 
 
 After a preamble setting forth the circumstances and reasons for granting 
 a charter, it proceeds : "Know ye, therefore, that we * * * do of our 
 special grace, certain knowledge, and mere motion, by and with the advice 
 of our counsel for said province, by these presents, will, ordain, grant and con- 
 stitute that there be a college erected in our said province of New Hampshire 
 by the name of Dartmouth College, for the education and instruction of youth 
 
 Note. See the full charter of Dartmouth College, given in 4 Wheat. (U. S.) 
 Reports, pp. *519-538.
 
 92 CHARTER UNDER A SPECIAL LAW. 427 
 
 of the Indian tribes in this land, in reading, writing and all parts of learning 
 which shall appear necessary and expedient for civilizing and Christianizing 
 children of pagans, as well as in all liberal arts and sciences, and also of En- 
 glish youth and any others. And the trustees of said college may and shall be 
 one body corporate and politic, in deed, act and name, and shall be called, 
 named and distinguished by the name of the Trustees of Dartmouth College. 
 
 * * * And for the more full and perfect erection of said corporation and 
 body politic * * * we do by these presents, for us, our heirs and successors, 
 make, ordain, constitute and appoint our trusty and well-beloved [twelve 
 persons named, 'the whole number of said trustees consisting, and here- 
 after forever to consist, of twelve and no more'], to be trustees of said Dart- 
 mouth College * * * that the said trustees and their successors shall 
 forever hereafter be, in deed, act and name, a body corporate, * * * by 
 the name of the Trustees of Dartmouth College, * * * and by that name 
 'shall be able * * * to have, get, acquire, etc.,' property, etc. 'And 
 
 * * * to the intent that our said corporation * * * may have perpetual 
 succession and continuance forever, we * * * give and grant unto the 
 Trustees of Dartmouth College, and to their successors forever, that there 
 shall be once a year, and every year, a meeting of said trustees held at said 
 Dartmouth College, at such time as by said trustees shall be agreed on, the 
 first meeting to be called by the said Eleazer Wheelock,' etc., to conduct the 
 affairs of the college ; * * * 'also that the said trustees and their suc- 
 cessors, or the major part of any seven or more of them, which shall convene 
 for that purpose * * * as often as one or more of said trustees shall die, 
 or by removal or otherwise shall, according to their judgment, become unfit 
 or incapable to serve the interests of said college, do, as soon as may be after 
 the death, etc., * * * elect and appoint such trustee or trustees as shall 
 supply the place of him or them so dying,' etc. * * * " 
 
 Many other privileges concerning the management in detail of the college 
 are expressly set forth. 
 
 Sec. 92. Under a special law or act of the legislature, illustra- 
 tion : 
 
 1826. An act to incorporate the Baltimore and Ohio Railroad Com- 
 pany. 
 
 Section 1. Be it enacted by the General Assembly of Maryland, That Isaac 
 McKim (and eight others named) be, and. they are hereby appointed com- 
 missioners, under the direction of a majority of whom, subscriptions may be 
 received to the capital stock of the Baltimore and Ohio Railroad Company 
 hereby incorporated ; and they, or a majority of them, may cause books to be 
 opened at such times and places as they may direct, for the purpose of receiv- 
 ing subscriptions to the capital stock of said company, after having given such 
 notice as they may deem proper * * * 
 
 Sec. 2. That the capital stock * * * shall be $3,000,000, in shares? of $100 
 each, 10,000 shares to be reserved for subscription to the state of Maryland, 
 and 5,000 for the city of Baltimore * * * and the remaining 15,000 shares 
 may be subscribed for by any other corporation, or individuals; and as soon 
 as 10,000 shares ' shall be subscribed, the subscribers * * * their 
 
 successors and assigns shall be, and they are hereby declared to be, incor- 
 porated into a company by the name of the Baltimore and Ohio Railroad 
 Company, and by that name shall be capable in law of purchasing * * * 
 and conveying estates, real and personal, * * * so far as shall be neces- 
 sary for purposes ' * mentioned, and no farther, and shall have per- 
 petual succession, and by said name may sue and be sued, and may have and
 
 428 CHARTER UNDER A SPECIAL LAW. 92 
 
 use a common seal, which they shall have power to alter or renew at their 
 pleasure, etc. * * * 
 
 Sec. 3. Provided for apportioning the stock if there were subscriptions re- 
 ceived for more than 15,000 shares. 
 
 Sec. 4. Required one dollar on each share to be paid at the time of subscrip- 
 tion, and the residue in such installments as may be required by the president 
 and directors not more than one-third in any year and only after sixty days 
 notice; and upon failure to pay, the stock to be forfeited to the company, and 
 may be sold by it. 
 
 Sec. 5. Provided that the charter should become forfeited if 10,000 shares 
 were not subscribed within one year. 
 
 Sec. 6. Provided that when 10,000 shares were taken, "the said commis- 
 sioners or a majority of them shall call a general meeting of the subscribers, 
 at such time and place as they may appoint, and shall give at least twenty 
 days' public notice thereof, and at such meeting the commissioners shall 
 lay the subscription books before the subscribers then and there present, and 
 thereupon the said subscribers, or a majority of them, shall elect twelve di- 
 rectors, by ballot to manage the affairs of said company, and these twelve 
 directors, or a majority of them, shall have the power of electing a president 
 of said company either from amongst the directors or others. * * * Each 
 stockholder shall be allowed one vote for every share owned by him, * * * 
 and he may depute any other person to vote for him as his proxy, and the com- 
 missioners, or any three or more of them, shall be judges of the first election 
 of directors." 
 
 Sec. 7. Provided for continuing the succession of the president and direc- 
 tors, by requiring them to be chosen annually on the second Monday of Octo- 
 ber, the state of Maryland and the City of Baltimore to appoint one for each 
 2,500 shares owned by them, but ifot to vote for others; the president and 
 directors to appoint judges of elections and to fill vacancies in the board. 
 
 Sec. 8. Annual meeting of stockholders to be held, or called meetings at 
 any time upon call by president and directors, or stockholders holding one- 
 fourth of the stock subscribed, on thirty days' notice. 
 
 Sec. 9. Statement of affairs of the company to be laid before shareholders at 
 the annual meeting; a majority in value of stockholders may at a general 
 meeting remove the president or any director. 
 
 Sec. 10. President and directors to take oath faithfully to discharge their 
 duties. 
 
 Sec. 11. Reserved stock may be disposed of by directors opening books to 
 receive subscriptions to the same. 
 
 Sees. 12-18. Directors were empowered to appoint all other officers and fix 
 their compensation, make by-laws, increase the stock, negotiate loans, con- 
 struct the road, make lateral roads, agree for land and materials, or condemn 
 the same in the manner set forth, cross other roads, put the machinery on 
 the road and operate it. 
 
 Sec. 18. Fixed maximum rates of transportation, forbade all persons from 
 traveling upon the road without license of the company, and exempted shares 
 from taxation. 
 
 Sec. 19. Provided for dividends from the net profits only. 
 
 Sec. 20. Provided for a penalty of $500 for willful injury done to the road. 
 
 Sec. 21. Provided that the act should take effect on its passage. 
 
 Sec. 22. Provided that the road should be commenced within two years 
 and completed within ten years. 
 
 Sec. 23. Reserved a right to incorporate other companies.
 
 93 CHARTER UNDER GENERAL LAWS. 429 
 
 Sec. 93. Under general laws, (a) The charter consists of ( I ) 
 the provisions of the general corporation law, and (2) articles 
 of incorporation, authorized thereby, and consistent therewith. 
 
 OREGON RAILWAY CO. v. OREGONIAN RAILWAY CO. 1 
 
 1888. IN THE SUPREME COURT OF THE UNITED STATES. 130 U. S. 
 
 '-39- 
 
 [Error to the United States circuit court. The Oregonian Co., 
 organized in Scotland under the English Companies Act of 1862, 
 with authority to build and operate a railroad in Oregon, or sell or 
 lease the same, constructed its road in Oregon, and then leased 
 it to the Oregon Co. which was incorporated in Oregon under a 
 general law, authorizing the formation of corporations for any law- 
 ful business, enterprise, pursuit or occupation. The articles of as- 
 sociation provided that it might lease another railroad, and in ac- 
 cordance with this authority it leased, through its president and sec- 
 retary, by direction of the board of trustees, the road of the Ore- 
 gonian Co., which before had complied with the Oregon statutes au- 
 thorizing foreign corporations to do business in the state, and providing 
 that upon such compliance such foreign corporation should have the 
 same rights, powers and privileges as domestic corporations. The 
 Oregonian Co. had obtained judgment in the lower court for unpaid 
 rentals under the lease. The Oregon Co. claimed this judgment was 
 erroneous for the reason that the Oregonian Co. had no authority to dis- 
 pose of its road in Oregon by lease, and the Oregon Co. had no au- 
 thority to acquire one in that way.] 
 
 MILLER, J. * * * It may be considered as the established doc- 
 trine of this court in regard to the powers of corporations, that they 
 are such and such only as are conferred upon them by the acts of the 
 legislatures of the several states under which they are organized. A 
 corporation in this country, whatever it may have been in England at 
 a time when the crown exercised the right of creating such bodies, can 
 only have an existence under the express law of the state or sovereignty 
 by which it is created. And these powers, where they do not relate io 
 municipal corporations, exercising authority conferred solely for (he 
 benefit of the public, and in some sense parts of the body politic of 
 the state, have in this country, until within recent years, always been 
 conferred by special acts of the legislative body under which they 
 claim to exist. But the rapid growth of corporations, which huve 
 come to take a part in all or nearly all of the business operations of 
 the country, and especially in enterprises requiring large aggregations 
 of capital and individual energy, as well as their success in meeting the 
 needs of a vast number of most important commercial relations, have 
 
 'Statement of facts abridged. Arguments, dissenting opinion of FIBLD, J., 
 and parts of the opinion of MILLER, J., omitted.
 
 43O OREGON RY. CO. V. OREGONIAN RY. CO. 93 
 
 demanded the serious attention and consideration of lawmakers. And 
 while valuable services have been rendered to the public by this class 
 of organizations, which have stimulated their formation by numerous 
 special acts, it came at last to be perceived that they were attended by 
 many evils in their operation as well as much good, and that the hasty 
 manner in which they were created by the legislatures, sometimes 
 with exclusive privileges, often without due consideration and under 
 the influence of improper motives, frequently led to bad results. 
 
 Whether it was this consideration, or mainly the desire to fix some 
 more uniform rule by which the rights and powers of private corpora- 
 tions, or those of pecuniary profit, should come into existence, it is 
 certain that not many years ago state constitutions which were formed 
 or remodeled came to have in them a provision like that which is now 
 to be found in the constitution of the state of Oregon, art. 11, 2: 
 
 "Corporations may be formed under general laws, but shall not be 
 created by special laws, except for municipal purposes. All laws 
 passed pursuant to this section may be altered, amended, or repealed, 
 but not so as to impair or destroy any vested corporate rights." 
 
 Outside of the powers conferred and privileges granted to those or- 
 ganizations by the statutes under which they exist, they are in all the 
 states of the Union, which, like Oregon, have the common law as the 
 foundation of their jurisprudence, governed by that common law ; and 
 it is the established doctrine of this court, and, with some exceptions, 
 of the states in which that common law prevails, as well as of Great 
 Britain, from which it is derived, that such a corporation can exercise 
 no power or authority which is not granted to it by the charter under 
 which it exists or by some other act of the legislature which granted 
 that charter. 
 
 [After citing and discussing Thomas v. R. Co., 101 U. S. 71 ; The 
 Asbury R. C. & I. Co. v. Richie, L. R. 7 H. L. 653 ; The East 
 Anglian R. Co. v. Eastern Counties R., n C. B. 775; Green Bay 
 & M. R. Co., 107 U. S. 98; Pennsylvania R. Co. v. St. Louis, 
 etc., R. Co.. 118 U. S. 290, 309, proceeds:] 
 
 It may be considered that this is the law of the state of Oregon, ex- 
 cept as it has been altered or modified by its constitution and statutes. 
 
 We are here met with an embarrassment arising out of the circum- 
 stance that neither the plaintiff nor the defendant in the present case 
 profess to exercise its powers under any special charter conferred on 
 it by the legislature of Oregon. That state, in accordance with the 
 principle laid down in its constitution, to which we have already re- 
 ferred, passed general laws for the formation of private corporations. 
 See laws of Oregon (Deady's Comp.) ch. 8. Under title I, i, 
 reads as follows: 
 
 "Whenever three or more persons shall desire to incorporate them- 
 selves for the purposes of engaging in any lawful enterprise, business, 
 pursuit or occupation, they may do so in the manner provided in this 
 act." 
 
 Provision is then made for the manner in which these persons shall 
 constitute themselves a corporation, by filing articles of association,
 
 93 CHARTER UNDER GENERAL LAWS. 431 
 
 acknowledged before a proper officer, in the office of the secretary 
 of state and in that of the clerk of the county where the business is to 
 In- carried on. What these articles shall contain is specified with 
 some particularity. But title 2 of this same chapter is more impor- 
 tant in regard to the matter at issue, because it relates, among other 
 things, to corporations which are organized for the construction of 
 railroads. The mode of their formation is the same as that of those 
 coming under title i, but the declaration of the powers which may be 
 exercised by railroad corporations may become important in the con- 
 sideration of the present case. 
 
 By the act of the legislature of October 21, 1878, Session Laws, 
 95, it is provided "that any foreign corporation incorporated for the 
 purpose of constructing, or constructing and operating, or for the pur- 
 poses of, or with the power of, acquiring and operating any railway, 
 * * * shall, on compliance with the laws of this state, for the 
 regulation of foreign corporations transacting business therein, have 
 the same rights, powers and privileges" as a domestic corporation 
 formed for such purpose, and no more. 
 
 When we have found, therefore, what powers were conferred by 
 the laws of Oregon on the defendant corporation in this case we shall 
 also have determined that the powers of the plaintiff corporation were 
 no greater with regard to the same subject-matter, so far as the stat- 
 utes are concerned, except as it may be shown that other powers are 
 given by some express statute. 
 
 It may also be conceded, at the outset of the argument, that the 
 memorandum made under the companies act of 1862 by the plaintiff, 
 and the articles of association made under the laws of Oregon by the 
 defendant, both contain declarations of the powers of these companies 
 and of each of them to buy or sell or lease railroads. The only 
 question, therefore, to be considered is whether this declaration of 
 power is authorized by the laws of Oregon. 
 
 It is argued that the articles of association, under the Oregon law, 
 and the memorandum of association, under the companies act of 
 Great Britain, are themselves the equivalent of an act of incorporation 
 by the legislature, and that whatever is found as a grant of power, or 
 description of the purpose of the company, set forth in such articles 
 or memorandum, is tantamount to a legislative act. A phrase in the 
 opinion of the court, in Thomas v. Railroad Co., supra, is cited as 
 supporting this proposition, namely: "The memorandum of associa- 
 tion, as Lord Cairns said, stands in place of a legislative charter." 
 But what was meant, both by Lord Cairns and by this court, was that 
 anything not claimed, granted or described in such instrument in rela- 
 tion to the powers and business of the corporation could not be held 
 to be a part of them by construction ; in other words, that its powers 
 could not exceed those enumerated therein. It was necessarily im- 
 plied in such a remark that anything in such articles of memorandum 
 not warranted by the statutes in question, authorizing the formation of 
 corporate bodies, was void for want of authority. 
 
 Of course, any authority for the exercise of corporate powers, de-
 
 432 OREGON RY. CO. V. OREGONIAN RY. CO. 93 
 
 lived from the laws of Oregon, must be in accord with the constitu- 
 tion of that state and its statutes upon that subject. The constitutional 
 provisions, above quoted, that corporations shall not be created by 
 special laws, but may be formed under general laws, implies that no 
 private corporation could be created thereafter until such general law 
 had been enacted, and that it thereupon became the fundamental law 
 of the state in regard to all corporations formed under it. It is idle to 
 say, therefore, that any corporation could assume to itself powers of 
 action by the mere declaration in its articles or memorandum that it 
 possessed them. 
 
 We have examined with much care the two statutes already referred 
 to concerning incorporation, enacted in accordance with that consti- 
 tutional provision, and do not find any express authority for a railroad 
 company to lease its road for an indefinite period or for it to take such 
 a lease; nor are we able to find any general language in those stat- 
 utes, or either of them, in relation to the powers that may be con- 
 ferred upon corporations which justifies a departure from the principles 
 laid down in Thomas v. Railroad Co. 
 
 It is to be remembered that where a statute making a grant of prop- 
 erty, or of powers, or of franchises to a private individual, or a pri- 
 vate corporation becomes the subject of construction as regards the 
 extent of the grant, the universal rule is that in doubtful points the 
 construction shall be against the grantee and in favor of the govern- 
 ment or the general public. As was said in the case of Charles River 
 Bridge v. Warren Bridge, u Pet. 420: "In this court the principle 
 is recognized that in grants by the public nothing passes by implica- 
 tion." See, also, Dubuque and Pacific Railroad Co. v. Litchfield, 
 23 How. 66; Turnpike Co. v. Illinois, 96 U. S. 63. 
 
 Therefore if the articles of association of these two corporations, 
 instead of being the mere adoption by the corporators themselves of 
 the declaration of their own purposes and powers, had been an act of 
 the legislature of Oregon conferring such powers on the corporations, 
 they would be subject to the rule above stated and to rigid construc- 
 tion in regard to powers granted. How much more, then, should this 
 rule be applied, and with how much more reason should a court, 
 called upon to determine the powers granted by these articles of asso- 
 ciation 1 , construe them rigidly, with the stronger leaning in doubtful 
 cases in favor of the public and against the private corporation. 
 
 We have to consider, when such articles become the subject of con- 
 struction, that they are, in a sense, ex parte', their formation and exe- 
 cution what shall be put into them as well as what shall be left out 
 do not take place under the supervision of any official authority what- 
 ever. They are the production of private citizens, gotten up in the 
 interest of the parties who propose to become corporators, and stimu- 
 lated by their zeal for the personal advantage of the parties concerned 
 rather than the general good. 
 
 These articles, when signed by the corporators, acknowledged be- 
 fore any justice of the peace or notary public, and filed in the office of 
 the secretary of state and the clerk of the proper county, become com-
 
 93 CHARTER UNDER GENERAL LAWS. 433 
 
 plete and operative. They are, so far as framed in accordance with 
 law, a substitute for legislation, put in the place of the will of the 
 people of the state, formerly expressed by acts of the legislature. 
 Neither the officer who takes such acknowledgment, nor those who 
 file the articles, have any power of criticism or rejection. The duty 
 of the first is to certify to the fact, and of the second to simply mark 
 them filed as public documents, in their respective offices. 
 
 These articles, which necessarily assume, by the sole action of the 
 corporators, enormous powers, many of which have been heretofore 
 considered of a public character, sometimes affecting the interests of 
 the public very largely and very seriously, do not commend them- 
 selves to the judicial mind as a class of instruments requiring or justi- 
 fying any very liberal construction. Where the question is whether 
 they conform to the authority given by statute in regard to corporate 
 organizations, it is always to be determined upon just construction of 
 the powers granted therein, with a clue regard for all the other laws of 
 the state upon that subject, and the rule stated above. 
 
 It is not urged with much apparent confidence that there is any- 
 thing in the general provision of the laws of Oregon, in relation to 
 the formation of private corporations, which are to be found in ch. 8, 
 titles i and 2, Deady's Comp., which by express terms authorizes a 
 corporation to include within the powers enumerated in its articles of 
 association that of making such a lease as the one which is the sub- 
 ject of the action. Arguments based upon these laws are founded 
 upon the implication that building railroads is, within the meaning of 
 i of title i, a "lawful enterprise, business, pursuit or occupation;" 
 and the further inference that the power of leasing a railroad, either 
 as a lessor or a lessee, is one which is incident and proper to the 
 pursuit of the lawful business of constructing and operating a rail- 
 road. The same argument is drawn from the general fact that title 
 2 recognizes the authority of corporations organized for the construc- 
 tion of railroads, macadamized roads, plank roads, clay roads, canals 
 or bridges, to appropriate lands for their necessary uses by the exer- 
 cise of the right of eminent domain, in the manner pointed out. 
 
 The language of the statute of New Jersey (quoted in Thomas v. 
 Railroad Co., supra), under which it was urged that the railroad 
 company had authority to make the lease in controversy, was quite 
 as general and as liberal in its description of the powers which that 
 corporation was authorized to exercise as anything to be found in the 
 Oregon statutes. In fact, in the authority which was given to that 
 company in regard to making contracts for the transportation of pas- 
 sengers and freight, and the doing of a general railroad business with 
 other corporations and private persons, it approaches nearer the 
 power to make leases than anything which is to be found in the laws 
 of Oregon ; yet this court held that although it was a direct authority 
 from the legislature itself, and not subject to the restrictive criticisms 
 above subjected, the lease made in that case was ultra vires, and 
 without authority on the part of the company. 
 
 Another important consideration to be observed, peculiarly applica- 
 28. WIL CAS
 
 434 OREGON RY. CO. V. OREGONIAN RY. CO. 93 
 
 ble to the acts of corporations formed by the corporators themselves, 
 declaring what business they are about to pursue, and the powers 
 which they propose to exercise in carrying it on, is, that while the 
 thing to be done may be lawful in a general way, there are and must 
 be limitations upon the means by which it is to be done or the pur- 
 pose carried out, which the articles of incorporation can not remove 
 or violate. A company might be authorized by its articles to estab- 
 lish a large manufactory in a particular locality, and might be held 
 to be a valid incorporation with sufficient powers to prosecute the 
 business described; but such articles, although mentioning the particu- 
 lar place, would not empower the company, in the exercise of the 
 power thus conferred, to carry on a business injurious to the health or 
 comfort of those living in that vicinity. 
 
 Instances might be multiplied in which powers described in general 
 terms as belonging to the objects of the parties who thus become in- 
 corporated would be valid, but the corporation, in carrying out this 
 general purpose, would not be authorized to exercise the powers 
 necessary for so doing in any mode which the law of the state would 
 not justify in any private person or any unincorporated body. The 
 manner in which these powers shall be exercised, and their subjection 
 to the restraint of the general laws of the state and its general princi- 
 ples of public policy are not in any sense enlarged by inserting in the 
 articles of association the authority to depart therefrom. 
 
 [The rest of the opinion considering other points raised, viz., the 
 effect of the words ''successors and assigns" in a proviso making a 
 specific grant to the corporation a provision in a general law author- 
 izing a navigation company to construct a railroad where portage was 
 necessary, but forbidding the lease of the same, and a provision in a 
 general corporation act authorizing a corporation to dissolve itself 
 and dispose of its property and holding that none of them impliedly 
 authorized the giving or taking of a lease by a railroad company, is 
 omitted.] 
 
 Judgment below reversed. 
 
 Note. The charter under general laws, consists of the provisions of the gen- 
 eral incorporation law, and the articles of association. 1856, The Eastern 
 Plank R. Co. v. Vaughan, 14 N. Y. (4 Kern.) 546; 1866, Society for Visitation 
 of Sick v. Commw., 52 Pa. St. 125, 91 Am. Dec. 139; 1869,Van Etten v. Eaton, 
 19 Mich. 187; 1876, Abbott v. Omaha Smelting Co., 4 Neb. 416: 1882, Gran- 
 gers' Life and Health Ins. Co. v. Kemper, 73 Ala. 325; 1883, Heck v. Mc- 
 Ewen, 12 Lea (Tenn.) 97 ; 1889, People v. Chicago Gas Trust Co., 130 111. 268, 
 17 Am. St. Rep. 319; 1891, Ellerman v. Chicago Jet., etc., Co., 49 N. J. Eq. 
 217; 1892, Cronin v. Potters' Co-op. Co., 29 W. L. B. (Ohio) 52; 1893, Repub- 
 lican Mountain Silver Mines v. Brown, 58 Fed. Rep. 644, 7 C. C. A. 412, 10 
 U. S. App. 203, 24 L. R. A. 776 ; 1895, Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 
 279, 62 N. W. Rep. 480; 1896, Knights of Pythias v. Weller, 93 Va. 605; 1898. 
 North, etc., R. Co. v. Utah, etc., R. Co., 16 Utah 246, 40 L. R. A. 851 , 52 Pac. Rep. 
 168. Provisions in the articles inconsistent with the general law will be con- 
 sidered void or surplusage. 1856, The Eastern Plank Road Co. v. Vaughan, 14 
 N. Y. 546; 1883, Heck v. McEwen, 12 Lea (Tenn.) 97; 1889, People v. Chi- 
 cago Gas T. Co., 130 111. 268, 17 Am. St. Rep. 319; 1893, Republican M. S. M. 
 y. Brown, 58 Fed. Rep. 644, 19 U. S. App. 203, 24 L. R. A. 776. But perhaps 
 in some cases additional powers consistent with the general law may be pro-
 
 95 ARTICLES OF INCORPORATION, FORM AND CONTENTS. 435 
 
 vided for in the articles of association. 1866, Society for Visitation of' the 
 Sick v. Coinunw., 52 Pa. St. 125, 91 Am. Dec. 139; 1892, Cronin v. Potters' 
 Co-op. Co., 29 W. L. B. (Ohio) 52. See, also, text-book citations, supra, p. 397. 
 For rules of construing charters see infra, p. 934. 
 
 Sec. 94. (b) Usual provisions in the general law: 
 
 The general law usually contains provisions enumerating the pur- 
 poses for which corporations may be formed, varying greatly in detail 
 from "any lawful business or purpose," with a short list of excep- 
 tions, to a long list in detail, like Michigan and Texas, the latter of 
 which sets forth a list of forty-seven classes of purposes for which pri- 
 vate corporations may be formed, and the former has special pro- 
 visions made for each of fifty-six different classes of corporations. The 
 general law usually contains restrictions concerning the selection of 
 the name, the duration of the corporation, the amount of stock both 
 a maximum and minimum limit, the maximum indebtedness allowed, 
 location of principal office, place of keeping corporate books, number 
 (least or greatest, or both) of directors, qualifications of the same, oath 
 of same, other officers and qualifications, individual liability of mem- 
 bers, annual meetings and elections, notices to be given of meetings, 
 places of meeting, voting (number of votes, ballots, proxy, by trus- 
 tees, pledges, etc.), quorum, of shareholders' and directors' meet- 
 ings, power and method of adopting by-laws, with the things to be 
 regulated thereby (such as time and places of meeting, quorums, 
 proxy voting, number of directors, choosing officers, term of office, 
 mode of selling stock for unpaid assessments, mode of transfer of 
 stock, etc.), general powers of the corporation as to amount and kind 
 of property it may own, the contracts it may make, etc., methods 
 of dissolution, etc., reports to be made and reserving a right to repeal 
 or amend the laws relating to corporations. 
 
 Sec. 95. (c) Articles of incorporation, form and contents: 
 
 General corporation laws usually provide that those desiring to 
 form a corporation shall make an application in writing to some 
 court or officer, who (in some cases, after a formal hearing) is to 
 determine whether the application is according to law; and, if so, 
 to make a record of that fact, and furnish an authenticated copy 
 of the application, or the record made, to those applying; this 
 authenticated copy then becomes prima facie evidence of their au- 
 thority to organize and exist as a corporation. The statutes vary 
 much, but the most important things to be said and done in the 
 various states are indicated in the following table :
 
 436 ARTICLES OF INCORPORATION, FORM AND CONTENTS. 95 
 
 [The student is advised to indicate in the blank columns the various things 
 required by the law of his state to be done in preparing articles of incorpora- 
 tion, by a check-mark opposite the point noted in the table.] 
 
 APPLICATION FOR INCORPORATION. 
 
 I. How entitled: 
 1. Application 
 
 
 
 
 
 2. Agreement 
 
 
 
 
 
 3. Articles of association 
 
 
 
 
 
 4. Articles of incorporation 
 
 
 
 
 
 5. Certificate of incorporation 
 
 
 
 
 
 6. Charter 
 
 
 
 
 
 7. Declaration 
 
 
 
 
 
 8. Deed of settlement 
 
 
 
 
 
 9. License 
 
 
 
 
 
 10. Memorandum of association . ... 
 
 
 
 
 
 11. Petition 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 II. By whom made: 
 1. Persons, natural 
 
 
 
 
 
 artificial 
 
 
 
 
 
 2. Designation, applicants 
 
 
 
 
 
 corporators 
 
 
 
 
 
 commissioners 
 
 
 
 
 
 incorporators 
 
 
 
 
 
 petitioners 
 
 
 
 
 
 promoters.., 
 
 
 
 
 
 subscribers 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 3. Number 
 
 
 
 
 
 4. Residents of the state 
 
 
 
 
 
 5. Citizens of the state 
 
 
 
 
 
 6. Citizens of the United States 
 
 
 
 
 
 7 Acre 
 
 
 
 
 
 8 SPX 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 III. To whom made: 
 court of record 
 
 
 
 
 
 governor 
 
 
 
 
 
 secretary of state . . 
 
 
 
 
 
 special court or commission 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 IV. Contents: 
 1. Intention to form a corporation 
 
 
 
 
 
 2. Purpose, generally 
 
 
 
 
 
 specifically and definitely 
 
 
 
 
 
 more than one 
 
 
 
 
 
 3. Nature of the proposed business 
 
 
 
 
 
 4. Name, any 
 
 
 
 
 
 indicating it is a corporation 
 
 
 
 
 
 the business 
 
 
 
 
 
 the place 
 
 
 
 
 
 including names of members 
 
 
 
 
 
 not includine names of members.... 
 
 
 

 
 95 ARTICLES OF INCORPORATION, FORM AND CONTENTS. 437 
 APPLICATION FOR INCORPORATION. 
 
 begin with 
 
 end with 
 
 not already in use. 
 
 5. Location of principal office or place of 
 business : 
 
 state 
 
 county 
 
 city 
 
 termini 
 
 counties or states, through or in which 
 it will operate 
 
 6. 
 
 Duration or term of existence : 
 
 perpetual 
 
 years, number, any stated 
 
 fixed by law 
 
 renewals, for original period 
 
 any period stated. 
 
 fixed period 
 
 7. Stock, amount allowed, any 
 
 maximum. 
 
 minimum 
 
 to be stated 
 
 not necessary to state 
 
 to be subscribed 
 
 to be paid in... 
 
 to begin business 
 
 payment, times of 
 
 conditions of 
 
 8. 
 
 Shares of stock, number 
 
 amount of each 
 
 common 
 
 preferred 
 
 character of preference 
 
 9. Officers, to be designated 
 
 president 
 
 vice-president 
 
 secretary 
 
 treasurer 
 
 manager 
 
 names to be given for first year 
 
 residence to be given for first year.
 
 438 ARTICLES OF INCORPORATION, FORM AND CONTENTS. 95 
 APPLICATION FOR INCORPORATION. 
 
 10. Directors, number allowed, any 
 
 maximum 
 
 minimum 
 
 to be stated 
 
 qualifications, shareholders 
 
 number of shares 
 citizens, number., 
 residents, number 
 
 names of those for first year 
 
 residence of those for first year.. 
 
 11. Applicants, names to be given 
 
 residence to be given 
 
 shares of stock subscribed by... 
 
 12. Indebtedness, amount allowed any 
 
 maximum.... 
 minimum.... 
 to be stated. 
 
 13. Such other matters as are deemed desirable 
 V. Execution of: 
 
 1. Signed by applicants, all 
 
 majority 
 
 number 
 
 residents 
 
 citizens 
 
 subscribers for stock 
 
 president 
 
 directors ... 
 
 2. Acknowledged by applicants, all 
 
 majority 
 
 certain number 
 
 residents 
 
 citizens 
 
 subscribers for stock 
 
 president 
 
 directors 
 
 before judge of court of record 
 
 clerk of court of 
 
 notary public 
 
 justice of peace 
 
 under seal if officer has one 
 character of officer to be certified... 
 
 by judge of court of record 
 
 clerk of court of record 
 
 under seal 
 
 3. Application to be sworn to by applicants, all 
 
 majority 
 
 certain number
 
 95 ARTICLES OF INCORPORATION, FORM AND CONTENTS. 439 
 APPLICATION FOR INCORPORATION. 
 
 
 subscribers to stock 
 
 
 
 
 
 
 president 
 
 
 
 
 
 
 directors 
 
 
 
 
 
 VI 
 
 Hearing none required 
 
 
 
 
 
 
 if any before judge of court of record 
 
 
 
 
 
 
 governor 
 
 
 
 
 
 
 secretary of state 
 
 
 
 
 
 
 attorney -general 
 
 
 
 
 
 
 insurance commissioner 
 
 
 
 
 
 
 special court or commission 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 VII 
 
 Finding by said officers, 
 conforms to law %. 
 
 
 
 
 
 
 facts stated are true. 
 
 
 
 
 
 
 decree that parties are incorporated 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 VII 
 
 t. Filing with, 
 1. Register of deeds of county where principal 
 
 
 
 
 
 
 2. County clerk of county where principal 
 office is 
 
 
 
 
 
 
 3. Clerk of court of county where principal 
 office is 
 
 
 
 
 
 
 4. Probate judge of county where principal 
 office is 
 
 
 
 
 
 
 5 Same of each county where business is done 
 
 
 
 
 
 
 6 Secretary of state 
 
 
 
 
 
 
 
 
 
 
 
 
 8. Two or more of those named 
 
 
 
 
 
 IX. 
 
 Recording by officer with whom filed, 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 X. 
 
 Issue of certificate of incorporation, by 
 Register of deeds 
 
 
 
 
 
 
 Judge of court 
 
 
 
 
 
 
 
 
 
 
 
 
 Secretary of state 
 
 
 
 
 
 
 Go v ern or 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 XI. 
 
 Publication: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 proof of, affidavit of printer 
 
 
 
 
 
 
 applicants 
 
 
 

 
 440 
 
 DEED OF SETTLEMENT. 
 APPLICATION FOR INCORPORATION. 
 
 95a 
 
 2. Of application, necessary 
 
 
 
 
 
 how long 
 
 
 
 
 
 where 
 
 
 
 
 
 in what 
 
 
 
 
 
 proof of, by printer 
 
 
 
 
 
 by applicants 
 
 
 
 
 
 3. Of time and place of hearing, necessary 
 
 
 
 
 
 how long 
 
 
 
 
 
 where 
 
 
 
 
 
 in what 
 
 
 
 
 
 proof of, by printer... 
 
 
 
 
 
 by applicant 
 
 
 
 
 
 4. Of result of application necessary 
 
 
 
 
 
 how long 
 
 
 
 
 
 where 
 
 
 
 
 
 in what 
 
 
 
 
 
 proof, by printer 
 
 
 
 
 
 by applicant 
 
 
 
 
 
 5. Of certificate of incorporation, necessary . 
 
 
 
 
 
 how long 
 
 
 
 
 
 where 
 
 
 
 
 
 
 
 
 
 
 proof, by printer 
 
 
 
 
 
 bv applicants 
 
 
 
 
 
 Note. See particularly the American Corporation Legal Manual for 1899 
 (and previous volumes of the annual publication); the Annotated Corpora- 
 tion Laws of all the states, 1899, by Cumming, Gilbert and Woodward, and 
 2 Stimson's American Statute Law. For further steps in the creation of the 
 corporation see infra, the subscription to stock, p. 459, and the organization of 
 the corporation, infra, p. 560. 
 
 Sec. 95a. (d) Deed of settlement. 
 
 The first general corporation law was 39 Eliz., ch. 5, concerning the 
 erection of hospitals. It allowed any person seized of an estate in fee, 
 by a deed enrolled in chancery, to erect a hospital for the poor, needy 
 and impotent, and place therein such head, and members, and poor 
 as he deemed convenient, the same to be incorporated with perpetual 
 succession, under the name given, with all the usual powers of a cor- 
 poration, provided it be endowed with lands of a certain yearly value 
 by the founder at the time of its creation. 
 
 Lord Coke, in his Second Institute, p. 723, gives a proper form of 
 deed for the formation of such corporation. The 39 Eliz. was to last 
 for twenty years, but it was made perpetual by statute of 21 James I, 
 ch. ij and is still in force. 6 Enc. of Laws of Eng., 233. 
 
 Wordsworth on Joint-Stock Companies, p. *5, enumerates deeds 
 of settlement as one of the methods of creating joint-stock companies, 
 the deed being operative between the shareholders themselves, but 
 not affecting strangers without notice, the ordinary rules of partner- 
 ships applying as to the relation with third parties. These deeds of
 
 95b DEED OF SETTLEMENT. 441 
 
 settlement were common even in the formation of corporations before 
 the present English companies acts, and were quite similar to the 
 memorandum and articles of association now provided for by those 
 lacts. For detailed forms see Wordsworth on Joint-Stock Companies, 
 Part II. This method does not seem to have been used much in this 
 country in the formation of corporations. 
 
 Sec. 95b. Interpretation of charters. 
 
 See Piscataqua Bridge Co. v. New Hampshire Bridge, 7 N. H. 36, supra, 
 p. 309; Thomas v. Railroad Co., 101 TJ. S. 71, infra, p. 915; People v. Pull- 
 man's Palace Car Co., 175 111. 125, infra, 926; note, infra, p. 933.
 
 CHAPTER 6. 
 
 THE ASSOCIATION ITS NECESSITY, NATURE, FORMS AND 
 
 PARTIES. 
 
 ARTICLE I. NECESSITY, NATURE, CONSIDERATION AND GENERAL 
 FORM OF THE ASSOCIATION. 
 
 Sec. 96. Necessity. An association of persons is necessary to, 
 results from, or may result from the creation of a corporation 
 aggregate. 
 
 "As the organization of individuals into that artificial being known 
 as a business corporation is not thrust upon them by the state, 
 but is a franchise granted to persons, who, first voluntarily com- 
 bine to obtain the franchise, some contractual relation between 
 the incorporators necessarily precedes the creation of the cor- 
 poration. These contractual relations may be very simple, in- 
 formal and transient. They may on the other hand involve ex- 
 tended negotiations, distinct agreements, complex stipulations 
 and the creating of obligations and the securing of property as 
 preliminaries to the final uniting of the individuals in initiating 
 the existence of the proposed artificial person." Austin Abbott, 
 Article on Promoter's Contracts, I Am. & E. C. C. (N. S.) 
 p. I. 
 
 Sec. 97. Same. 
 
 RAILWAY COMPANY v. ALLERTON. 
 
 1873. IN THE SUPREME COURT OF THE UNITED STATES. 85 U. S. 
 (18 Wall.) Rep. 233-236. 
 
 Appeal from the circuit court for the Northern District of Illinois ; 
 the case being thus : 
 
 The Chicago City Railway Company was a corporation owning a 
 street railroad in Chicago. The directors of the company, without 
 consulting the stockholders or calling a meeting of them, resolved 
 to increase the capital stock of the company from $1,250,000 to 
 $1,500,0000 To this one Allerton, who was a stockholder, objected, 
 and filed a bill praying for an injunction to prevent the increase. His 
 position was that it could not be lawfully made without the concur- 
 
 (442)
 
 97 THE ASSOCIATION. 443 
 
 rence of the stockholders, and, in support of this view, he relied upon 
 the constitution of Illinois, adopted in July, 1870, by the thirteenth 
 section of the eleventh article of which, it is declared as follows: 
 
 "No railroad corporation shall issue any stock or bonds, except for 
 money, labor or property actually received and applied to the purposes 
 for which such corporation was created, and all stock-dividends and 
 other fictitious increase of the capital stock, or indebtedness of any 
 such corporation, shall be void. The capital stock of no railroad 
 corporation shall be increased for any purpose, except upon giving 
 sixty days public notice in such manner as may be provided by law." 
 
 He also relied on an act of the legislature of Illinois, passed March 
 26, 1872, to execute and cany out the above provision of the consti- 
 tution, by which, amongst other things, it was enacted that no corpo- 
 ration should change its name or place of business, increase or decrease 
 its capital stock, or the number of its directors, or consolidate with 
 other corporations without a vote of two-thirds of the stock at a stock- 
 holders' meeting. 
 
 The railway company, in its answer, relied upon its charter, granted 
 February 14, 1859, the third and fourth sections of which were as 
 follows: 
 
 "Sec. 3. The capital stock of said corporation shall be $100,000, 
 and may be increased from time to time, at the pleasure of said cor- 
 poration. 
 
 "Sec. 4. All the corporate powers of said corporation shall be 
 vested in and exercised by a board of directors, and such officers and 
 agents as said board shall appoint." 
 
 The position of the company was that the third section conferred 
 an unrestricted right to increase the capital stock at will, and that the 
 fourth vested this power in the board of directors, and that the consti- 
 tutional provision and act above referred to, if applied to this corpo- 
 ration, would impair the validity of the contract. It was further set 
 up, however, that the said provision did not apply to railways worked 
 by horse-power. The court below decreed in favor of the complain- 
 ant, and the company took the present appeal. 
 
 Mr. Justice BRADLEY delivered the opinion of the court. Without 
 attempting to decide the constitutional question, or to give a construc- 
 tion to the act of the legislature, we are satisfied that the decree must 
 be affirmed on the broad ground that a change so organic and funda- 
 mental as that of increasing the capital stock of a corporation beyond 
 the limits fixed by the charter can not be made by the directors alone, 
 unless expressly authorized thereto. The general power to perform 
 all corporate acts refers to the ordinary business transaction of the 
 corporation, and does not extend to a reconstruction of the body itself, 
 or to an enlargement of its capital stock. A corporation, like a part- 
 nership, is an association of natural persons ivho contribute a joint 
 capital for a common purpose, and, although the shares may be as- 
 signed to new individuals in perpetual succession, vet the number 
 of shares and amount of capital can not be increased, except hi the 
 manner expressly authorized by the charter or articles of association.
 
 444 RAILWAY COMPANY V. ALLERTON. 9/ 
 
 Authority to increase the capital stock of a corporation may un- 
 doubtedly be conferred by a law passed subsequent to the charter ; 
 but such a law should regularly be accepted by the stockholders. 
 Such assent might be inferred by subsequent acquiescence ; but in 
 some form or other it must be given to render the increase valid and 
 binding on them. Changes in the purposes and object of an associa- 
 tion, or in the extent of its constituency or membership, involving the 
 amount of its capital stock, are necessarily fundamental in their char- 
 acter, and can not, on general principles, be made without the ex- 
 press or implied consent of the members. The reason is obvious. 
 
 First, as it respects the purpose and object. This may be said to 
 be the final cause of the association, for the sake of -which it -was 
 brought into existence. To change this -without the consent of the as- 
 sociates, -would be to co?nmit them to an enterprise which they never 
 embraced, and -would be manifestly unjust. 
 
 Secondly, as it respects the constituency, or capital and member- 
 ship. This is the next important and fundamental point in the con- 
 stitution of a body corporate. To change it without the consent of 
 the stockholders, -would be to make them members of an association in 
 which they never consented to become such. It -would change the re- 
 lative influence, control and profit of each member. If the directors 
 alone could do it, they could always perpetuate their own power. 
 Their agency does not extend to such an act unless so expressed in 
 the charter, or subsequent enabling act; and such subsequent act, as 
 before said, would not bind the stockholders without their acceptance 
 of it, or assent to it in some form. Even when the additional stock 
 is distributed to each stockholder pro rata, it would often work injus- 
 tice, because many of the stockholders might be unable to take their 
 respective shares, and might thus lose their relative interest and in- 
 fluence in the corporate concerns. 
 
 These conclusions flow naturally from the character of such associa- 
 tions. Of course, the associates themselves may adopt or assent to a 
 different rule. If the charter provides that the capital stock may be 
 increased, or that a new business may be adopted by the corporation, 
 this is undoubtedly an authority for the corporation (that is, the stock- 
 holders) to make such a change by a stockholders' vote in the regu- 
 lar way. Perhaps a subsequent ratification or assent to a change 
 already made, would be equally effective. It is unnecessary to decide 
 that point at this time. But if it is desired to confer such a power on 
 the directors, so as to make their acts binding and final, it should be 
 expressly conferred. 
 
 Where the stock expressly allowed by a charter has not been all 
 subscribed, the power of the directors to receive subscriptions for the 
 balance may stand on a different footing. Such an act might, per- 
 haps, be considered as merely getting in the capital already provided 
 for the operations and necessities of the company, and, therefore, as 
 belonging to the orderly and proper administration of the company's 
 affairs. Even in such case, however, prudent and fair directors
 
 98 GFNKRAL NATURE OF THE ASSOCIATION. 445 
 
 would prefer to have the sanction of the stockholders to their acts. 
 But that is not the present case, and need not be further considered. 
 Decree affirmed. 
 
 Note. See, 1899, Hosier v. Perry, 60 Ohio St. 388. Also, particularly, 23 
 Am. & Eng. Ency. 776, et seq.; Angell & Ames, 517, et seq., 530-1, 542-3; 
 Cook, 492-8; Elliott, 95-8; Morawetz, 1, 24, 227-237; Taylor, 28- 
 50; I Thompson, 1136, III Thompson, 3047, 3423; Compare, Clark, 
 27, 86. 
 
 Sec. 98. General nature of such contract: An agreement by each 
 associate with his fellows to organize for purposes contem- 
 plated, and contribute the funds agreed. 
 
 EDINBOEO' ACADEMY v. ROBINSON. 1 
 
 1860. IN THE SUPREME COURT OF PENNSYLVANIA. 37 Pa. St. Re- 
 ports, 210-214, 78 Am. Dec. 421. 
 
 Error to the common pleas of Erie county. 
 
 This was an action brought by Prentiss Burlingham and others, 
 "trustees of Edinboro' Academy," against Alva Robinson, to re- 
 cover an installment on his subscription of $50 to the following paper: 
 
 "We, the undersigned, citizens of Edinboro' and vicinity, feeling 
 the necessity of an institution of learning in our midst, affording 
 greater advantages for education than common schools, do hereby 
 agree to pay R. W. Gerrish, Prentiss Burlingham, Josiah J. Comp- 
 ton, Alfred Green, I. R. Taylor, William Proud and Nelson Clute, 
 trustees, for the purpose, the sums severally subscribed by each of us, 
 for the purpose of erecting a building in the borough of Edinboro' 
 aforesaid, to be used as an academy or institution of learning, said 
 trustees to act until the sum of $3,000 is subscribed for the purpose 
 aforesaid, and when so subscribed, public notice of that fact to be 
 given and of the time and place of organization of said stockholders, 
 by choosing the necessary and usual officers to carry into effect the de- 
 sign of the subscribers. No payments to be made until the sum of 
 $3,000 bona jide, subscription is made ; and when paid to be in 'quar- 
 terly yearly' payments." 
 
 The $3,000 subscription was completed some time in 1856, and on 
 the 3Oth of December, 1856, five of the trustees named in the paper 
 gave notice of a meeting to be held on he 5th of January, 1857, 
 for the purpose of choosing seven trustees to serve for the ensuing 
 year. 
 
 On the 5th day of May, 1856, the "Edinboro' Academy" was incor- 
 porated by the court of common pleas of Erie county, which charter 
 of incorporation directed that in all elections each share of stock ($5) 
 should entitle the holder to a vote. The election of January 5, 1857, 
 seems to have been held under the provisions of the act of incorpora- 
 tion. 
 
 1 Arguments omitted.
 
 446 EDINBORO' ACADEMY V. ROBINSON. 98 
 
 There were thirty-three voters, and 163 votes cast. The election 
 resulted in the choice of the plaintiffs in this suit. The meeting did 
 not vote for, or in any way formally adopt the charter of incorpora- 
 tion. 
 
 Many of the subscribers were opposed to the charter as the basis 
 of organization, and, on the I4th of February, 1857, three of the trust- 
 ees named in the subscription paper gave notice of a meeting for 
 organization on the 2ist of February, 1857, at which meeting seven 
 trustees were elected, who also organized and undertook to collect 
 the subscriptions. The charter organization obtained possession of 
 the subscription paper, collected the money, selected the site, and 
 erected buildings, and brought this suit against the defendant after 
 notice given. 
 
 The defense was that the incorporation of "The Edinboro' Acad- 
 emy" by the court, without the assent of the defendant, released him 
 from his subscription. The evidence on the part of the plaintiff was 
 the subscription paper with the signature of the defendant; that 
 $3,000 was subscribed in good faith ; and that a meeting of the sub- 
 scribers was called on due notice, the association incorporated and 
 trustees elected. On the part of the defendant evidence of another 
 organization under articles of association, in which the defendant 
 and thirty-two other subscribers participated, was given and ad- 
 mitted. 
 
 The court instructed the jury that the real plaintiff in the case was the 
 "The Edinboro' Academy," in the incorporation of which the defend- 
 ant did not participate, and that as, between that institution in its cor- 
 porate right, and the defendant, there existed no privity of contract, 
 the suit could not be sustained. The jury, accordingly, found for the 
 defendant, and, judgment having been entered on the verdict, the 
 plaintiff removed the case into this court, and assigned for error the 
 following matters: 
 
 I. The court erred in answering the plaintiffs' first point in the 
 negative, which was: 
 
 i. That if the jury find from the evidence that the defendant signed 
 the subscription-paper given in evidence, and thereby promised to 
 pay to E. W. Garrish, Prentice Burlingham, Isaac R. Taylor, William 
 Proud, Josiah J. Compton, Alfred Green and Nelson Clute, trustees, 
 for the purpose of erecting a building in the borough of Edinboro', to 
 be used for an academy or institution of learning, the sum of $50; 
 that the said trustees were to act until the sum of $3,000 was sub- 
 scribed for that purpose ; that that sum was subscribed ; that the de- 
 fendant's subscription of $50 constituted part of the $3,000; that 
 thereafter, in pursuance of a provision in the paper so subscribed, pub- 
 lic notice was given of the fact that $3,000 had been subscribed, and 
 of the time and place of organization of the stockholders ; that at the 
 time and place at which such notice was given the stockholders met 
 and organized and elected the plaintiffs in this suit trustees; then, and 
 in that case the plaintiffs can sustain this suit, to recover an install- 
 ment of the $50 due when the suit was instituted.
 
 98 GENERAL NATURE OF THE ASSOCIATION. 447 
 
 II. The court erred in answering the plaintiffs' second point in the 
 negative, which was as follows: 
 
 2. That this action being in the name of the person elected trust- 
 ees at a meeting of subscribers called for the purpose, in pursuance 
 of the provisions of the subscription paper signed by the defendant, 
 the plaintiffs are entitled to recover in this suit, and the plaintiffs, if 
 they are not the proper persons to collect and disburse the money col- 
 lected, will be trustees for those who are legally entitled to it. 
 
 III. The court erred in answering the plaintiffs' third point in the 
 negative, which was as follows: 
 
 3. That if the defendant signed the subscription-paper given in ev- 
 idence, it is no defense that the association contemplated by that paper 
 was subsequently incorporated by the court of common pleas of Erie 
 county after due public notice, if the defendant did not object to the 
 incorporation of the association, and if the object of the incorporation 
 was substantially to effect the same purpose that was contemplated by 
 the subscription-paper signed by him, and his interests were not af- 
 fected or his responsibility increased by the act of incorporation. 
 
 IV. The court erred in not giving distinct and separate answers 
 to each of the plaintiffs' three points. 
 
 V. The court erred in charging that, "although some of the persons 
 named as plaintiffs were made payees in the subscription-paper, yet 
 they are not necessarily named, but are so by surplusage ; that the 
 real plaintiff is the 'Edinboro' Academy,' between whom, in its corpo- 
 rate right, and the defendant there exists no privity of contract, we 
 think they can not sustain this suit." 
 
 LOWRIE, C. J. So soon as this subscription paper became com- 
 plete by the subscription of the stipulated amount of money, the sub- 
 scribers to it became an association of persons united for contributing 
 to a common fund for a common purpose, to be carried out by them- 
 selves. Then the subscription of each {at least if not withdrawn be- 
 fore the actual organization of the associates} became a contract by 
 each associate -with his fellows, in consideration of similar contracts 
 by them, to contribute to the common fund the amount subscribed by 
 him. 
 
 Such an act of association involves an agreement to organize the 
 associates when the subscription shall be complete, and in the present 
 case this is expressly provided for. The duties created by the act of 
 subscription are duties to the association, and the first of them that is 
 to be performed is the duty of organization, and when this is com- 
 plete, the duty of paying the sum subscribed is a duty to the organ- 
 ized association. In a legal aspect, the most perfect form of organi- 
 zation is by legal incorporation, and, therefore, this when regularly 
 obtained by the common consent of the associates, must be regarded 
 as the true organization of the association, and the corporation be- 
 comes the proper legal body to which the subscriptions are to be 
 paid, and which is to sue for them. There can be but one true organ- 
 ization. 
 
 The court below was, therefore, in error in deciding that the action
 
 448 STEWART V. TRUSTEES OF HAMILTON COLLEGE. 99 
 
 was improperly brought in the name of the association in its corpo- 
 rate form. The decision ought to have been that if the associates 
 did organize themselves by legal incorporation, then the corporation 
 is the organized association, and is the proper legal party to demand 
 and enforce the payment of the subscriptions. 
 
 The question of fact is therefore involved in the true decision : did 
 the associates organize themselves into this corporation called "The 
 Edinboro' Academy?" 
 
 The decision of the court below excluded this question, though it 
 is the vital one of the cause. It may not be easily decided, because 
 there is no complete prescribed form for the process of organization. 
 And so it is in the original organization of states, and there we take 
 the fact of the existing organism as proof of its legitimacy without in- 
 quiring into the regularity of the formative process. And in such a 
 case as this, if we find the associates acting as members of the organ- 
 ism we assume the regularity of its formation as against them. 
 
 The only form agreed upon here for the process of organization is, 
 that it shall be by a meeting of the associates held according to notice 
 to be given. If such a meeting was held on reasonable notice, and 
 if, by consent of a majority, the corporate form of organization was 
 adopted or assented to, the corporation is the organized body contem- 
 plated by the contract of subscription, and has the right to demand 
 and receive the sums subscribed. 
 
 The law rather pardons than approves the naming of the trustees 
 of the corporation as plaintiffs, in such an action before a justice of 
 the peace. 
 
 In court the form ought to be amended so as to let the plaintiff ap- 
 pear in its simple corporate name. 
 
 Judgment reversed, and a new trial awarded. 
 
 THOMPSON J., having been of counsel in the case, did not sit at the 
 hearing. 
 
 See note, infra, p. 456. 
 
 Sec. 99. Consideration of the agreement. 
 
 STEWART v. TRUSTEES OF HAMILTON COLLEGE. 1 
 
 1845. IN THE COURT OF CORRECTION OF- ERRORS, of New York. 
 2 Denio's (New York) Reports 403-429. 
 
 On error from the supreme court. The trustees of Hamilton College 
 sued Stewart in the court below in assumpsit, to recover a balance of 
 $600, parcel of $800 subscribed by him towards a fund for the pay- 
 ment of the salaries of the officers of the college, which subscription 
 was made at the foot of the paper in the following words : 
 
 "Fund for Hamilton College. We, the subscribers, hereby bind 
 
 1 Only those parts of the various opinions relating to consideration are 
 given. " This case afterward came before the new court of appeals, and was 
 decided against the trustees of the college, on the ground that there was no 
 sufficient consideration. 1 N. Y. 581 (1848).
 
 99 CONSIDERATION OF THE ASSOCIATION CONTRACT. 449 
 
 ourselves to pay to the trustees of Hamilton College, the sums oppo- 
 site to our respective names, in four equal annual payments, the first 
 to be made on the first day of August, 1834. The conditions of the 
 subscription are the following: 
 
 'Ji. That the moneys collected on it shall be permanently invested 
 as a productive fund, the interest of which shall be applied to the pay- 
 ment of the salaries of the officers. 
 
 "2. That we shall not be holden to pay the sum subscribed by 
 us unless the aggregate of our subscriptions and of contributions to 
 this object shall, by the first of July, 1834, amount to $50,000, nor 
 until M. Hunt, Esq., or A. B. Johnson, Esq., of Utica, shall certify 
 that, in his or their judgment, responsible subscriptions or contributions 
 amounting to $50,000 shall have been made. 
 
 "Dated July 6, 1833." The trial court non-suited the plaintiff, 
 and the supreme court set this aside. 
 
 The opinion of the supreme court was by, 
 
 NELSON, C. J. Two principal objections have been taken to the 
 right of the plaintiffs to recover: i. That the promise is nudum pac- 
 tum, there being no consideration to support it; 2. That if valid, the 
 conditions upon which it was made have not been fulfilled. 
 
 Every promise for the breach of which an action of assumpsit may 
 be sustained, must be founded upon a consideration of benefit to the 
 defendant, or to a stranger, or of damage or loss to the plaintiff at 
 the request of the defendant; but any act of the plaintiff from 
 which the defendant derives a benefit, or any labor, detriment, or in- 
 convenience, sustained by the plaintiff, however small the benefit or 
 inconvenience, is a sufficient consideration, if such act is per- 
 formed, or inconvenience suffered, at the instance and request of the 
 defendant, (i Selw. N. P. 32, and cases cited.) It is not claimed 
 in this case that the defendant has derived any benefit from the contract 
 upon which the action is founded, and the inquiry will be, whether 
 the plaintiffs have sustained any damage or detriment at the instance 
 and request of the defendant, or directly flowing from the promise. 
 The substance of the contract between the parties, leaving out the 
 particulars, is this: The defendant agrees to pay the plaintiffs, for the 
 benefit of the institution they represent, $800, in four annual pay- 
 ments, provided they will procure subscriptions and contributions 
 which, with his, shall amount to $50,000 before a given time, andi 
 shall afterwards invest the same as specified. Or, putting it in an- 
 other form: The defendant agrees, if the plaintiffs will procure sub- 
 scriptions for the benefit of their institution to the amount of $50,000, 
 including his, and will invest the same as therein directed, that he will 
 pay them $800 in four annual payments. The plaintiffs consent, and 
 perform the conditions. It seems to me that the labor and expense of 
 procuring the subscriptions and investing the fund constitute damage 
 .uul loss to the plaintiffs, which bring the case within the very defini- 
 tion of a good consideration for the promise. In the case of Sir 
 Anthony Sturlyn v. Albany (Cro. Eliz. 67), the declaration set forth 
 tnat the plaintiff had made a lease of land to J. S. for life rendering 
 
 29 WIL. CASES.
 
 45O STEWART V. TRUSTEES OF HAMILTON COLLEGE. 99 
 
 rent, who granted all his estate to the defendant, the rent being be- 
 hind for several years. The defendant agreed, if the plaintiff could 
 show to him a deed that the rent was due, he would pay it. The 
 plaintiff then averred that on such a day, etc., he showed to him the in- 
 denture of lease by which the rent was due, etc. The plaintiff 
 recovered, and motion was made in arrest, for that there was no con- 
 sideration upon which to ground the action. But it was adjudged for 
 the plaintiff, the court observing, that when a thing is to be done by 
 the plaintiff, be it ever so small, it is a sufficient consideration for the 
 promise. 
 
 So in the case of Knight v. Rushwood, in the same book (p. 469), 
 Mrs. R. had given a bond for ^200 to the plaintiff, and afterward 
 assigned to the defendant all her goods to pay her debts. The de- 
 fendant insisting that it had been read to the obligor as a bond of 
 ;ioo only, promised the plaintiff to pay it, if he and two witnesses 
 would swear before the mayor of London, that it was read to her as 
 an obligation of ^200, which was done. The question was, whether 
 there was a consideration for the promise ; and the whole court held, 
 that the inconvenience of making the oaths was a sufficient considera- 
 tion ; that the smallness was immaterial if any, it was enough and 
 referred to the previous case of Sturlyn v. Albany. (See, also, March 
 v. Culpepper, Cro. Car. 70). So if A. promises B. to pay him a 
 sum of money if he will call for it at a particular time, and B. calls 
 accordingly, the promise is binding; the calling for the money being 
 sufficient consideration for the promise. Powell on Cont., 343, 5 
 Pick. 384). These cases are all referred to as sound law in the mod- 
 ern respectable treatises on the subject. (Comyn. on Cont., 16; I 
 Sewl. N. P. 32; Powell on Cont., 343; Saund. PI. and Ev., 147; 
 Bac. Ab. Assumpsit, C.) and the principle is recognized in Brooks 
 v. Ball, (18 Johns. 337). It is laid in Comyn's Dig., (Action upon 
 the case upon Assumpsit, B. 4), that proof of a debt is a good con- 
 sideration for an assumpsit, "for it is a charge to the plaintiff; as if a 
 woman in consideration of the proof of a debt due from her husband, 
 promise payment. So if an heir promise to pay the debt of his an- 
 cestor ; or if an executor promise upon proof of the delivery of goods 
 to his testator to pay for them." 
 
 The case of McAuley v. Billenger (20 John. R. So), is not distin- 
 guishable from the present. That was an action to recover a sum 
 subscribed by the defendant below, for the repairs of a church. The 
 suit was in the name of a committee appointed to receive subscrip- 
 tions for this purpose, and to whom the money was made payable, 
 and who had subsequently entered into a contract with a person for 
 the repairs as contemplated in the subscription paper. Entering into 
 this engagment for the repairs, agreeably to the understanding of all 
 parties concerned in getting up the subscription and in pursuance 
 thereof, was regarded as a sufficient consideration for the promise to 
 pay by the subscribers. The case of Amherst Academy v. Cowles 
 (6 Pick. 431), contains similar doctrine. A subscription to a fund 
 of $50,000 to be made a permanent investment for the benefit of a
 
 99 CONSIDERATION OF THE ASSOCIATION CONTRACT. 451 
 
 literary institution, was heid to be valid and binding, as the execution 
 of the trust on the part of the trustees, or even being engaged in the 
 process of execution, afforded a sufficient consideration for the un- 
 dertaking of the defendant. And the case of The First Religious 
 Society of Whitestown v. Stone (7 John. R. 112) stands upon the 
 same principle. 
 
 I can not doubt, therefore, but that the assent of the plaintiffs to 
 the proposition contained in this instrument, and the fulfillment of its 
 terms and conditions on their part, or in other words, the labor and 
 expense of procuring subscriptions to the fund, and of investing the 
 same at their instance and request, as may be fairly inferred from all 
 the circumstances attending the proposition, afford a sufficient consid- 
 eration for the undertaking of the subscribers. * * * 
 
 The CHANCELLOR. The first question in this case, but which I 
 consider of minor importance, is that of consideration. The agree- 
 ment upon which the suit was brought was not by the terms of it, nor 
 was any part of it to be performed within one year from the making 
 thereof. The subscription is dated upon the 6th of July, 1833, and 
 all the counts except the third, which was not attempted to be proved, 
 allege the agreement to have been made by Stewart on that day. The 
 first installment of the subscriptions was not to be paid until the ist 
 of August, 1834. The case, therefore, comes within the first subdi- 
 vision of the second section of the title of the Revised Statutes rela- 
 tive to fraudulent conveyances and contracts in relation to goods, 
 chattels and things in action ; and the agreement must not only be in 
 writing, but there must be a valid and sufficient consideration appear- 
 ing upon the face of the writing, upon which the subscribers are sought 
 to be charged. (2 R. S. 135.) The language of the statute is ex- 
 plicit in declaring that every agreement that by its terms is not to be 
 performed within one year from the making thereof, shall be void, 
 unless such agreement, or some note or memorandum thereof ex- 
 pressing the consideration is in writing and subscribed by the party 
 to be charged therewith. The consideration stated in the three counts 
 of the declaration, which were attempted to be sustained by proof is, 
 in part, at least, an alleged agreement on the part of the corporation 
 to procure subscriptions and contributions to the amount of $50,000 
 by the ist of July, 1834. But upon the face of the written agreement 
 I find no evidence of any undertaking on the part of the corporation 
 that they will procure subscriptions and contributions to the amount 
 of $50,000 or to any amount within the prescribed period. Nor was 
 their acceptance of the subscription of Stewart even an implied assent 
 on the part of the corporation that they would even attempt to raise 
 the amount by circulating a subscription for the purpose. And if the 
 subscription papers had never been presented to any one after Stew- 
 art's name was subscribed to it, he could not have complained that 
 the corporation had violated any agreement, either express or implied, 
 on their part. 
 
 It is true that it was made a condition of the agreement that it 
 should not be binding upon the subscribers, unless the aggregate of
 
 452 STEWART V. TRUSTEES OF HAMILTON COLLEGE. 99 
 
 their subscriptions and contributions should amount to at least $50.- 
 ooo within the time specified. But even in this condition there is no 
 intimation that the corporation are to procure, or to have any instru- 
 mentality in procuring such subscriptions and contributions, or that 
 they were to be even permitted to expend the then existing funds of 
 the college for that purpose. And even if we go out of the writing, 
 and examine the parol proof which was adduced to make out such 
 a consideration, I do not find any evidence which shows that there 
 was an agreement on the part of the trustees to be at the expense of 
 procui'ing subscriptions. Indeed, upon reading the written agree- 
 ment, I should infer the contrary to be the fact; and that the donors, 
 or some of them, whose names headed the subscription and who were 
 the friends of the institution, had gotten up this subscription as an 
 agreement between themselves to contribute certain proportions to in- 
 crease the funds of the college at least $50,000 beyond the amount it 
 before had ; and that it would be inconsistent with the real object of 
 the donors to have these funds reduced by expenditures of the kind 
 contemplated. 
 
 As a subscription of a single individual, agreeing to make a dona- 
 tion to another individual or to a corporation for the benefit of the donee 
 merely, I should have great difficulty in finding a valid consideration 
 to sustain a promise to give without any equivalent therefor, and with- 
 out any binding agreement on the part of the donee to do anything on 
 his part which would be a loss or injury to him. And it can hardly 
 .be said to be a consideration to support a promise of a donor to give 
 at a future time, that the donee agrees to receive and invest the fund 
 when paid and to apply it to the payment of his debts generally, or 
 any particular class of his debts; or to apply it to the payment of such 
 sums as he may thereafter agree to give to his servants for their serv- 
 ices. In the case of The First Religious Society in Whitestown v. 
 Stone (7 John. Rep. 112), no such difficulty existed, for there was a 
 sufficient consideration stated in the contract itself. The agreement in 
 that case was stated to be in consideration of $i received from the 
 trustees of the corporation, as well as the further consideration that it 
 was to raise a salary for a clergyman to be employed to preach for 
 the benefit of the subscribers. 
 
 Neither is there any difficulty in my mind finding a good and sufficient 
 consideration to support a subscription of this kind made by several 
 individuals. Every member of society has an interest in supporting 
 the institutions of religion and of learning in the community where he 
 resides. And when he consents to become a subscriber with others 
 to raise a fund for that purpose, the real consideration for his promise 
 is the promise which others have already made or which he expects 
 them to make, to contribute to the same object. In other words, the 
 mutual promises of the several subscribers to contribute towards the 
 fund to be raised for the specified object in which all feel an interest, 
 is the real consideration of the promise of each. For this purpose, 
 also, the various subscriptions to the same paper and for the same ob- 
 ject, although in fact made at different times, may in legal contem-
 
 99 CONSIDERATION OF THK ASSOCIATION CONTRACT. 453 
 
 plation be considered as having been made simultaneously. The 
 consideration of the promise, therefore, is not any consideration of 
 benefit received by each subscriber from the religious or literary cor- 
 poration to which the amount of his subscription is made payable, nor 
 is his promise founded upon any consideration of injury which the payee 
 has sustained or is to sustain or to be put to for his benefit. But the 
 consideration of the promise of each subscriber is the corresponding 
 promise which is made by other subscribers. Mutual promises have 
 always been held sufficient as between the parties to sustain the prom- 
 ise to each. And it had also been the settled law from the time of 
 the decision in the case of Dutton v. Pool (Freem. Law Rep. 471), 
 in 1678, down to the present time, that a party for whose benefit a 
 promise is made may sue in assumpsit upon such promise, although 
 the consideration therefor was a consideration between the promisor 
 and a third person. (See Schermerhorn v. Vanderheyden, i John. 
 Rep. 139.) Upon this subscription the several subscribers mutually 
 promise each other to pay to the trustees of Hamilton College the 
 sums subscribed by them respectively, upon the condition that the 
 funds when collected by the corporation shall be invested as a perma- 
 nent fund, and the income thereof applied to the support of the officers 
 of the institution. The legal effect of the written agreement, there- 
 fore, is the same as if it had been stated at length in the subscription 
 that the consideration of the promise of each was the promise made to 
 him by the other subscribers to pay to the corporation the sums by 
 them subscribed respectively. And if this agreement had been set 
 out in the declaration with the names of the other subscribers thereto, 
 with the sums subscribed by them respectively, I think a sufficient 
 consideration to support the promise to pay to the corporation of the 
 college would have appeared to support the action. * * * 
 
 Senator BOCKEE. But there is another question of very great in- 
 terest and importance, whether there was any consideration for the 
 defendant's promise, so as to make it a legal obligation. It may be 
 assumed as an axiom, which can not be disputed, that a promise 
 founded on duties of imperfect obligation or mere motives of benevo- 
 lence, or a desire to promote the interest of education, of charity or 
 piety, is nothing more than the promise of a gift, and is not a legal con- 
 tract on which an action can be maintained. If we take the first clause of 
 this subscription-paper by itself, where the subscribers bind themselves 
 to pay certain sums of money to the trustees of Hamilton College, it 
 does most clearly and inevitably oome within the description of a gra- 
 tuitous promise, and is void for want of consideration. Do the con- 
 ditions which are underwritten vary the obligations which the sub- 
 scribers are under to the trustees of the college ? The first of these 
 conditions is merely directory, and relates to the investment and ap- 
 propriation of the moneys when collected, and can have no bearing 
 upon this question of consideration. The second condition is not, as 
 is incorrectly stated in the second count of the plaintiffs' declaration, 
 ''provided that the plaintiffs should and would, by the first day of 
 July, 1834, procure subscriptions and contributions to the amount of
 
 454 STEWART V. TRUSTEES OF HAMILTON COLLEGE. 99 
 
 $50,000." If the agreement had been that the defendant would pay 
 $800 to the plaintiffs, provided they should and would raise $50.00 } 
 it would be a good executory consideration, and would, in my view, 
 entirely change the nature of this instrument, and transform what I 
 now consider a naked promise of a donation into a legal and binding 
 contract. 
 
 The meaning of this condition must be ascertained from the terms 
 in which it is expressed. There is no reference to the plaintiffs, and 
 it does not appear from the instrument that they are to perform any 
 conditions. The promise is to pay money upon a contingency hav- 
 ing no relation to any action on the part of the plaintiffs. If the un- 
 qualified promise is void for want of consideration, I can not conceive 
 that it is rendered more obligatory by the condition contained in this 
 subscription paper. The promise of the defendant and also the 
 promises of all the other benevolent and public spirited gentlemen 
 who have joined with him in the subscription are voluntary and gra- 
 tuitous donations, and they are not less so because they are conditional 
 and depend upon the contingency that the subscriptions shall within 
 a limited period be raised to $50,000. This condition was doubtless 
 made as an inducement to liberal subscriptions, and as an incentive 
 to the friends of the college to exert themselves in raising the fund. 
 It is an arrangement among the parties who are subscribers, and the 
 obvious motive of each one is to make his own subscription the means 
 of calling into exercise the liberality of others. In looking for a con- 
 sideration to support a contract between these parties, we qan not go 
 beyond the subscription paper. That is the only evidence on which 
 any legal claim can be asserted. We do not find in this paper any 
 act or thing to be done by the plaintiffs on the performance of which 
 they can be legally entitled to claim as a debt what was offered as a 
 gift. * * * 
 
 Senator PORTER. The defendant below was sued upon his sub- 
 scription to the funds of the Hamilton College, and he resists the pay- 
 ment upon a variety of grounds. It appears that a special effort was 
 made in the year 1833 to raise the sum of $50,000 to be added to the 
 permanent funds of that institution, but the income of this sum was 
 to be applied specially to the payment of the salaries of the officers 
 of the college. The first objection that I propose to consider is that 
 which affirms that there was no consideration for the promise made 
 by the defendant to pay the trustees the amount of his subscription. 
 
 By the instrument signed by the defendant, the subscribers prom- 
 ised to pay to the trustees of Hamilton College the sums of money set 
 opposite their respective names, upon certain conditions therein spec- 
 ified. The question is, whether there appears upon the face of the 
 instrument a consideration to sustain the promise made by the defend- 
 ant. Let us consider the whole scope and extent of this writing, and 
 the understanding and agreement of both parties at the time it was 
 signed. The trustees come to the defendant and propose to him, that 
 if he and others will, promise to pay them $50,003 as a permanent 
 fund, the interest of which shall be applied to the payment of teachers
 
 99 CONSIDERATION OF THE ASSOCIATION CONTRACT. 455 
 
 in the college, they will incur the labor and expense of obtaining the 
 subscription to that amount, to be certified by Mr. Hunt or Mr. John- 
 son ; that they will collect the same, and invest the amount collected 
 permanently, and in some safe and secure manner; that they will col- 
 lect, receive and pay over the annual interest forever thereafter to the 
 teachers of the college, free from all charge upon this fund; and they 
 engage to take upon themselves the care and expense of taking 
 charge of the fund, and preserving it in all its integrity, upon a 
 continued permanent investment, and of applying the income accord- 
 ing to the designs of its public spirited, enlightened and liberal donors, 
 free from all abatement ; so that their charity may go down to all 
 time, testifying to their liberality, and enabling this public institution 
 to confer upon the community that is interested in its prosperity, the 
 blessings of education and science. All this, they say, we will un- 
 dertake on our part. The defendant says, very well ; if you will 
 promise for yourselves and your successors to perform this very 
 charitable service if the "subscribers will promise to pay you this 
 amount, I am content, and will promise, as one of those subscribers, 
 to pay you $800 towards that fund, which promise is to be binding 
 upon me, if responsible subscriptions are obtained to that amount in 
 the opinion of Mr. Hunt or Mr. Johnson. It seems to me that this is 
 a fair and rational paraphrase of the real agreement between these 
 parties. And if so, is there not a mutuality in it? A promise on the 
 part of the defendant to pay, provided the trustees will promise on 
 their part to perform ? I think the promise on the part of the trustees 
 is valid, and obliges them to perform their agreement, and that there- 
 fore it furnishes a good consideration for the promise of the defend- 
 ant. There is a contract made between the donors and the trustees, 
 for the donation, security and disposition of the fund. The promise 
 on the part of the trustees they have assumed and ratified by accept- 
 ing the subscriptions and collecting the fund, and they have subjected 
 themselves to a perpetual obligation to fulfill that promise in good 
 faith. This obligation maybe enforced at all times; and the man- 
 ner of executing the trust on their part may always be the subject of 
 judicial inquiry, and the court will require that the trusts and the prom- 
 ises are all fulfilled. 
 
 In the case of the Trustees of Dartmouth College v. Woodward 
 (4 Wheat. 518), Ch. J. Marshall, speaking of the contributions to 
 the fund of that institution, says: "These gifts were made, not in- 
 deed to make a profit to the donors, or their posterity, but for some- 
 thing in their opinion of inestimable value, for something which they 
 deem a full equivalent for the money with which it was purchased. 
 The consideration for which they stipulated is the perpetual applica- 
 tion of the fund to its object, in the mode prescribed by themselves." 
 
 It is not important that the the consideration of a promise should be 
 plainly expressed in the writing; it is enough if it appears from the 
 nature of the instrument and the recitals contained in it. If it is man- 
 ifest that there was in the minds of the parties some obligation as- 
 sumed, or some service to be rendered by the promisee, as the equiva-
 
 456 NULTON V. CLAYTON. IOO 
 
 lent asked for the promise by the promisor, the promise is not void 
 for want of a consideration. The law upon this subject is well stated, 
 and the authorities collected in Saund. PL & Ev. 147. I can not 
 doubt but that the promise of the defendant was made upon a good 
 consideration. * * * 
 
 For reversal 21, for affirmance 5. 
 
 See 23 Am. & Eng. Ency. 791 et seq. ; Beach, 584 ; Boone, 108 ; Clark, 
 93-7; Cook, 71-5; Elliott, 349; Langdell's Summary of Contracts, 
 183-7; Morawetz, 43-59; Taylor, 62-64, 509-12; I Thompson, 
 1200-13 ; VII Thompson, 8606-25. 
 
 Note. If subscriptions are acted upon and mone}' is expended on the faith 
 of them, the donor or subscriber is estopped from claiming there is no consid- 
 eration. 1816, Kidwelly v. Raby, 2 Price (Eng. Exch.) 93; 1828, Amherst 
 Academy v. Cowls, 6 Pick. (Mass.) 427; 1852, Kennebec, etc., R. R. Co. v. 
 Palmer, 34 Maine 366; 1857, Wesleyan Seminary v. Fisher, 4 Mich. 514; 
 1877, Roche v. Roanoke Classical Sem., 56 Ind. 198; 1877, M. E. Churchy. 
 Kendall, 121 Mass. 528; 1878, Simpson Centenary College v. Bryan, 50 Iowa 
 293; 1881, Twin Creek, etc., Co. v. Lancaster, 79 Ky. 552; 1885, Osborn v. 
 Crosby, 63 N. H. 583; 1886, Roberts v. Cobb, 103 N. Y. 600; 1897, School Dis- 
 trict v. Sheidley, 138 Mo. 673; 1898, Beatty v. Western College of Toledo, 177 
 111. 280, 42 L. R. A. 797 ; 1899, Lasar v. Johnson, 125 Cal. 549, 49 C. L. J. 409, 
 58 Pac. 161. Also, see, cases infra, pp. 482, 491-492. But, see, Bryants Pond, 
 etc., Co. v. Felt, 87 Maine 234, infra, p. 474; Hudson Real Estate Co. v. Tower, 
 161 Mass. 10, infra, p. 478 ; Baptist Church v. Cornell, 117 N. Y. 601. 
 
 Sec. 100. The general form of such contract: As a rule, the form 
 is immaterial, unless the statute or charter requires a particu- 
 lar form. It may be either a statutory or a common law con- 
 tract. 
 
 NULTON v. CLAYTON. 
 
 1880. IN THE SUPREME COURT OF IOWA. 54 Iowa Reports, 425 
 428, 37 Am. Rep. 213. 
 
 Action to recover upon an alleged subscription to the stock of a 
 banking corporation. The question arises upon demurrer to the peti- 
 tion, the defendant claiming that the petition does not show that the 
 defendant became a subscriber to the stock in such sense that he be- 
 came obligated to take and pay for it. The corporation is the Farmers' 
 and Merchants' Bank of Bloomfield. The plaintiff is the assignee 
 of the corporation. The petition avers that the capital stock was di- 
 vided into shares of $100 each, and that the defendant subscribed for 
 ten shares. As constituting the subscription, the plaintiff sets out as 
 an exhibit to his petition a certain written statement, and the articles 
 of incorporation, both purporting to be subscribed by the defendant. 
 The statement is in these words : 
 
 "We, the undersigned, having associated ourselves together for the 
 purpose of organizing a banking association, and transacting the busi- 
 ness of banking under chapter 52, of the revision of 1860, do declare 
 and state as follows : 
 
 "First. The name and title of the association shall be The Farm- 
 ers' and Merchants' Bank of Bloomfield, Iowa.
 
 IOO FORM OF ASSOCIATION CONTRACT. 457 
 
 "Second. The authorized capital of said Farmers' and Merchants' 
 Bank of Bloomfield, Iowa, shall be $150,000, which shall be divided 
 into shares of $100 each. 
 
 ''Third. The name and residence of the stockholders of this asso- 
 ciation, with the number of shares held by each, are as follows: 
 
 "J.W.Clayton, 10 shares." 
 
 The essential part of the articles of incorporation is in these words: 
 
 "Eighth. Fifty per cent, of all the stock subscribed for this asso- 
 ciation before it commences business shall be paid in at the time of 
 commencing business, and the balance so subscribed shall be paid at 
 such times and in such installments as the board of directors may 
 prescribe." 
 
 The petition avers that the directors have called for full payment 
 of all the stock subscribed. 
 
 To the petition so showing the defendant demurred. The court 
 sustained the demurrer. Judgment having been rendered for the de- 
 fendant, the plaintiff appeals. 
 
 ADAMS, Ch. J. The action is brought to recover one-half of the 
 amount of the alleged subscription, the other half having already been 
 paid. ' The defendant insists that it is not shown that he contracted 
 to pay any sum whatever. The defendant did not become a stock- 
 holder by subscribing the articles of incorporation. If he became 
 such he did so by subscribing what we have denominated the state- 
 ment. The more important portion of it is the third division. That 
 is a declaration purporting to be made by the associated persons 
 showing each his respective interest in the corporation. Is it a sub- 
 scription to stock? If so, the defendant is liable to pay for the num- 
 ber of shares set opposite his name, without a promise to do so in so 
 many words. This has been held repeatedly. 
 
 In Spears v. Crawford, 14 Wend. 20, * the writing subscribed was 
 in these words : 
 
 "We, the subscribers, do hereby severally agree to take the shares 
 by us subscribed in the Harlem Canal Company." A certain num- 
 ber of shares was set opposite the name of each . subscriber. The 
 question presented was whether the mere agreement to take shares 
 rendered the defendant liable to pay for them. The court held that 
 it did. 
 
 In Hartford & New Haven R. Co. v. Kennedy, 12 Conn. 500, the 
 word "subscriber" was used in what was claimed to be the subscrip- 
 tion to stock. It was held that the subscriber was liable to pay for 
 the stock, without a promise to do so in so many words. The court 
 said: "It is true a promise to pay in precise terms does not appear to 
 have been made. The defendant has not affixed his signature to an 
 instrument which contains the words, 'I promise to pay,' but he has 
 done an equivalent act. He has contracted with the plaintiff to be- 
 come a member of the corporation, and to be interested in its stock." 
 
 In Rensselaer & W. Plank Road Co. v.Barton, 16 N. Y. 460, the 
 
 1 28 Am. Dec. 513.
 
 458 NULTON V. CLAYTON. IOO 
 
 court said: "Whatever may be the form or language of a subscription 
 to the stock of an incorporated company, any person who in any man- 
 ner becomes a subscriber for, or engages to take any portion of, the 
 stock of such company, thereby assumes to pay according to the con- 
 ditions of the charter." See, also, Small v. Herkimer Manufacturing 
 and Hydraulic Co., 2 Comst. 335; Dayton v. Borst, 31 N. Y. 437; 
 Hartford & New Haven R. Co. v. Croswell, 5 Hill 384; Waukon & 
 Mississippi R. Co. v. Dwyer, 49 Iowa 121. 
 
 Probably the defendant would not deny that where there is a valid 
 subscription to stock, or written agreement to take stock, there arises 
 upon such subscription or agreement an obligation to pay for it. But 
 the defendant insists that the writing in this case, whatever it may be 
 called, falls short of being a subscription to stock, or agreement to 
 take stock. 
 
 It declared that "the number of shares held by each are as follows: '' 
 Then follow names and amounts. The averment of the petition in 
 substance is that the defendant by his contract subscribed for ten 
 shares. By this we understand that the writing was signed by the 
 defendant. The association purports to be incorporated under the 
 general incorporation law. What purpose such a written declaration 
 by the associated persons could have if they were not thereby to be- 
 come subscribers, each for the amount set opposite his name, we are 
 unable to conceive. It is suggested that the written declaration was, 
 perhaps, designed as a written admission of a previous subscription, 
 but we see no reason for a formal written admission of what must 
 have been already in writing if there was a subscription to be admitted. 
 It appears to us far more probable that the declaration was designed 
 as a subscription. Now it matters not how informal the writing may 
 be, if the intent of the parties can be collected from it. What the in- 
 tent was in this case we have no reasonable doubt. The parties in- 
 tended to adopt articles of incorporation, and become subscribers to 
 the stock thereunder. If they did they became obligated to pay in 
 accordance with the eighth article to which they made themselves 
 parties. 
 
 Suppose a creditor of the association had brought an action upon 
 his claim against the defendant, alleging that he is a partner. We 
 think that the defendant might, and would, have set up the incorpo- 
 ration and sought shelter beneath it. There is no doubt that he in 
 good faith attempted to become a member and limit his liability by 
 the exemption provided. If he could have escaped liability as a part- 
 ner by setting up the incorporation and his membership, he can nof 
 escape the limited liability incident to such membership. 
 
 We think that the demurrer was improperly sustained. 
 
 Reversed. 
 
 Note. For subscriptions to commissioners see Walker v. Devereaux, supra t 
 p. 385. 
 
 For subscriptions to in corporators, see Nickum v. Burkhardt, supra, p. 391. 
 
 See, also, 1819, Chester Glass Co. v. Dewey, 16 Mass. 94; 1841, Chelten- 
 ham, etc., R. Co. v. Daniel, 2 Q. B. 281 : 1848, Lohman v. N. Y., etc., R. Co., 
 2 Sandf. (N. Y.) 39; 1856, Fisher v. Evansville, etc., R. Co., 7 Ind. 407; 1856,
 
 10 1 STATUTORY ASSOCIATION CONTRACT. 459 
 
 Poughkeepsie & S. P. P. R. v. Griffin, 21 Barb. (N. Y.I 454; 1858, Mobile & 
 O. R. Co. v. Yandall, 5 Sneed (Tenn.) 294; 1860, Clark v. Farrington, etc., 
 11 Wis. 306; 1864, Ashtabula & N. L. R. Co. v. Smith, 15 O. S. 328; 18m), 
 Iowa & M. R. Co. v. Perkins, 28 Iowa 281 ; 1873, Peninsula R. Co. v. Dun- 
 can, 28 Mich. 130, infra, p. -482; 1878, Woodruff v. McDonald, 33 Ark. 97; 
 1882, Wheeler v. Millar, 90 N. Y. 353; 1893, Barron v. Burrill, 86 Maine 72, 
 29 All. 938; 1896, Ventura, etc., R. Co. v. Collins,116 Cal. 260, 46Pac. Rep. 287. 
 See, also, 23 Am. & Eng. Ency., p. 786, et seq. ; Beach, 61-5; Boone, 108; 
 Cook, 52-3; Elliott, 348; Morawetz. 43, et seq.; Taylor, 509-12; I 
 Thompson, 1136-95; II Thompson, 1305, 1788. 
 
 Writing is not necessary statute of frauds does not apply. 1853, Chaffin v. 
 Cummings, 37 Maine 76; 1858, Cookney's Case, 3 DeG. & J. 170; 188H, Col- 
 fax Hotel Co. v. Lyon, 69 Iowa 683; 1887, Wemple v. R. R. Co., 120 111. 196; 
 1887, Bullock v. Falmouth, etc., Co., 85 Ky. 184; 1893, Webb v. R. R. Co., 77 
 Md. 92, infra, p. 528: 1894, York v. Park Building Assn., 39 Neb. 834; 1895, 
 Shellenberger v. Patterson, 168 Pa. St. 30; 1895, Tabler v. Anglo-American 
 Assn., 32 S. W. (Ky.) 602. See, Cook, 52-3; Elliott, 348; I Thompson, 
 1146-7. Contra, a subscription requires writing, for subscribe literal ly menus 
 an underwriting. 1827, Thames T. Co. v. Sheldon, 6 B. &. C. 341 ; 1858, 
 Pittsburgh, etc., R. Co. v. Gazzam, 32 Pa. St. 340; 1877, Galveston Hotel Co. 
 v. Bolton, 46 Tex. 633; 1878, Freeland v. N. J. Stone Co., 29 N. J. Eq. 188; 
 1887, Fanning v. Ins. Co., 37 O. S. 339, 41 Am. Rep. 517. 
 
 ARTICLE II. FORMS OF ASSOCIATION CONTRACTS J STATUTORY SUB- 
 SCRIPTIONS. 
 
 Sec. 101. An exclusively statutory contract. 
 
 THE SEDALIA, WARSAW & SOUTHERN RY., APPELLANT, v. WILKER- 
 
 SON, ADMINISTRATOR. 1 
 
 1884. IN THE SUPREME COURT. OF MISSOURI. 83 Missouri Reports 
 
 235-H4- 
 
 MARTIN, C. This is an action to enforce an alleged subscription 
 to the capital stock of plaintiff. The demand was first presented in 
 the probate court for allowance against the estate of the subscriber, 
 and was taken thence by appeal to the circuit court. The principal 
 facts in the case are set forth in the following agreed statement: 
 
 It is hereby stipulated and agreed by and between the parties hereto, 
 that upon the trial of this case the following facts shall stand admitted, 
 viz. : 
 
 1. That the plaintiff is a railroad corporation, created and existing 
 under the general railroad incorporation laws of the state, under the 
 corporate name of the Sedalia, Warsaw and Southern Railway Com- 
 pany. 
 
 2. That its articles of association were filed in the office of the 
 secretary of state, September 16, 1879, the same having been pre- 
 
 1 Arguments omitted.
 
 460 THE SEDALIA, ETC., RY. V. WILKERSON. IOI 
 
 pared and signed by the parties thereto between the first day of Sep- 
 tember, 1879, and the sixteenth day of September, 1879, and that said 
 Smith did not sign said articles, nor authorize any one to sign his 
 name thereto, and that said Smith died intestate on the eleventh day 
 of July, 1879. 
 
 3. That in the year 1877, the defendant, said George R. Smith, 
 signed and delivered to one Cyrus Newkirk, who was afterwards 
 named in said articles as one of the directors of plaintiff and who was 
 then soliciting subscription to the capital stock of said proposed incor- 
 poration, now the plaintiff herein, a certain written instrument to be 
 read in evidence in the case. 
 
 3^. That prior to the bringing of the suit in the probate court of 
 Pettis county, the plaintiff had complied with all the conditions of said 
 written instrument referred to in the preceding stipulation as to the 
 construction and completion of said railway, and that on October 30, 
 1880, plaintiff made a call for payment of all subscriptions to its capi- 
 tal stock. 
 
 4. That for the purpose of this trial the same effect shall be given 
 to the instrument referred to in the third stipulation as though the 
 name of the Sedalia, Warsaw and Southern Railway Company ap- 
 peared in the stead of that of the Sedalia, Warsaw and Memphis Rail- 
 way Company. 
 
 5. That after said articles of association were filed in the office of 
 the secretary of state, as aforesaid, the plaintiff corporation duly or- 
 ganized by the appointment of William Gentry, one of the directors 
 named in the said articles, as president; also by the appointment of 
 D. H. Smith, another of said directors, as vice-president ; John D. 
 Crawford, secretary, and Cyrus Newkirk, treasurer. 
 
 6. That after such organization by plaintiff, said Cyrus Newkirk 
 turned over and delivered said instrument referred to in the third stip- 
 ulation to the secretary of the plaintiff, and that plaintiff thereupon 
 received and accepted the same as a subscription to its capital stock, 
 and ordered the name of said Smith to be placed upon its stock books 
 as a stockholder of fifty-five shares of its capital stock, which was ac- 
 cordingly done. 
 
 7. For the purpose of this case the instrument of writing referred 
 to in stipulation No. 3 shall be considered as applying only to the 
 $ 1,000 cash part thereof, which yet remains unpaid, the remaining 
 portion having been heretofore arranged in a manner not affecting the 
 issues in this case. 
 
 8. These stipulations shall not be taken as binding or estopping 
 either party hereto, in any other cause, but shall be used in the trial of 
 this case only. 
 
 The plaintiff read in evidence the subscription paper referred to in 
 the stipulation signed by the defendant's intestate, which constitutes 
 the foundation of the demand against his estate. 
 
 "We, the undersigned, agree each severally to take the number of 
 shares of the capital stock of the Sedalia, Warsaw and Memphis 
 (Southern) Railway Company written opposite our names respect-
 
 10 1 STATUTORY ASSOCIATION CONTRACT. 461 
 
 ively, and to pay for the same as soon as the road of said company 
 shall be fully completed and in operation to the south line of Pettis 
 county, in the direction of Warsaw, and the road-bed of said company 
 completed from Sedalia to Warsaw. The payment of our several 
 individual subscriptions to be secured to the satisfaction of the board of 
 directors of said company before a contract for the building of said 
 road is closed. 
 
 "Names. Shares. Amount. 
 
 "George R. Smith, .... $5,500 
 
 "On condition as follows: One thousand dollars cash; $3,000 in 
 work to be done for said railway company at the shops of the Smith 
 Manufacturing Company, at regular prices; $1,500 in real estate, 
 consisting of the three lots on the north side of Fourth street, in the 
 city of Sedalia, lying south of the lots of the Smith Manufacturing 
 Company, and adjoining the M., K. & T. railroad on the west 
 above mentioned lots are numbered 14, 15 and 16, of block i, Smith 
 & Martin's Third Addition. 
 
 "(Signed.) G. R. SMITH." 
 
 This being all the evidence, the plaintiff asked the court to declare, 
 in substance, that the plaintiff, upon the agreed facts, was entitled to 
 recover the $1,000 mentioned in the subscription paper. The court 
 refused to make the declaration and rendered judgment on said facts 
 in favor of defendant, from which the plaintiff appeals. 
 
 The only question presented in the record is, whether the defend- 
 ant's intestate by virtue of his signature to the paper submitted in 
 evidence, which was preliminary to the execution of the articles of 
 association, became legally bound as a stockholder in the corporation, 
 subsequently organized under article 2 of chapter 21 relating to the 
 voluntary incorporation of railroads. The corporation contemplated 
 in this preliminary paper is a creature of the statute. By complying 
 with certain requirements specifically indicated therein, the subscrib- 
 ers of said paper, or any one else desiring the same thing, might be- 
 come entitled to the rights and be subject to the liabilities of stock- 
 holders in a body corporate. 
 
 The statute which enables them to call into being the body corpo- 
 rate governs their relation to that body. It is full and explicit, and 
 leaves no excuse for resorting to the rules of the common law in de- 
 termining who are and who are not members of the body. I accept 
 this proceeding as an attempt to enforce the statutory liability of the 
 defendant's intestate as a member and stockholder of the association 
 contemplated in the preliminary paper. 
 
 In recurring to the statute it would seem that only two modes are 
 provided by which a person may become a subscriber to the capital 
 stock of a corporation, either by signing the articles of association 
 alluded to in the first section of the second article, or by subscribing 
 to the capital stock after the creation of the corporation. The defend- 
 ant's intestate died before the articles of association which gave being
 
 462 THE SEDALIA, ETC., RY. V. WILKERSON. IOI 
 
 to the corporation were executed and filed, consequently he could not 
 have become a member by subsequent subscription. If he did not 
 become such before they were filed, then he was no subscriber or 
 stockholder at all. As it appears from the agreed statement of facts 
 that his name was never signed to the articles of incorporation, 
 the argument against the plaintiff is conclusive, if the premises are 
 correct. 
 
 That they are correct, I think no one can doubt after reading the 
 provisions of the statute relating to the incipient steps necessary to be 
 taken in order to give rise to the relation of stockholder and corpora- 
 tion. Section 764, Revised Statutes, provides that any number of 
 persons, not less than five, may form a railroad company; that for 
 such purpose they may make and sign articles of association, in 
 which shall be set forth the name of the company, period of its exist- 
 ence, the termini of its road, its length, the counties through which it 
 is to run, the amount of capital stock, number of shares of stock, and 
 the names and places of residence of the directors. It requires each 
 member to subscribe to such articles by signing his name and place 
 of residence, and the number of shares he agrees to take. A certain 
 amount of capital stock must be subscribed, according to the character 
 and length" of the road, and five per cent, of the amount so subscribed 
 paid thereon to the directors named in the articles. To these articles 
 must be attached the certificate of at least three directors, under oath, 
 to the effect that the conditions relating to the amount and payment 
 of stock have been complied with. The section then goes on to say: 
 "And thereupon the persons who have so subscribed such articlesof 
 association, and all persons who shall become stockholders in said 
 company, shall be a corporation by the name specified in such articles 
 of association, and shall possess the powers and privileges granted to 
 corporations, and be subjected to the provisions relating thereto con- 
 tained in this chapter." 
 
 I am unable to perceive how any persons of the requisite number, 
 desirous of forming a railroad company under the provisions of this 
 statute, can do so in any other mode than the one pointed out in it. 
 In no other mode can the relation of stockholder and corporation, 
 under this state, be established. The statute neither contemplates 
 nor alludes to any preliminary paper of subscription such as the 
 one given in evidence. The fact that informal papers and circular 
 letters are commonly signed and published as a part of the enterprise 
 and zeal which gives birth to public corporations, can make no dif- 
 ference as long as the statute fails to recognize them among the nec- 
 essary and prescribed legal steps to be taken by the incorporators to 
 create the body corporate. The allusion in the statute to "all persons 
 who shall become stockholders in said company," evidently refers to 
 such as become stockholders by subscribing for stock after the corpo- 
 ration is established, in subscription books opened by the directors, 
 according to the provisions of section 711, Revised Statutes. 
 
 It has been held by the courts of New York, in construing a stat- 
 ute in most respects like our own, that a party failing to sign the arti-
 
 10 1 STATUTORY ASSOCIATION CONTRACT. 463 
 
 cles of association could not be subjected to the liability of a stock- 
 holder, although he has signed a preliminary subscription paper. 
 Troy & Boston R. R. v. Tibbitts, 18 Barb. 267; Poughkeepsie & 
 Salt Point Plank Road Co. v. Griffin, 24 N. Y. 150. I find nothing 
 in the cases cited by plaintiff's counsel materially conflicting with 
 this construction. Some of them are cases in which preliminary re- 
 quests, petitions, or subscriptions are made prior to, or in contempla- 
 tion of, the grant of a charter by legislative enactment. The acts 
 when passed took effect upon the petitioners or subscribers, and by 
 force of their terms made them liable as members or stockholders, al- 
 though they may have failed to participate in the subsequent pro- 
 ceedings by which the corporation was organized. Others are cases 
 in w r hich the act of incorporation, either general or special, had been 
 passed, and the defendants are held liable as stockholders, by reason 
 of subscriptions within the peculiar meaning and terms of the acts, or 
 because the acts, unlike the one before us, failed to prescribe any par- 
 ticular method of subscription by which a person might acquire the 
 rights and be subject to the responsibilities of a stockholder. Tonica, 
 etc., R. v. McNeely, 21 111. 71: Johnson v. Ewing Female Univer- 
 sity, 35 111. 518; Buffalo & N. Y. City R. Co. v. Dudley, 14 N. Y. 
 336; Hartford & New Haven R. v. Kennedy, 12 Conn. 500; Tag- 
 gart v. Western Md. R., 24 Md. 663; Penobscot R. Co. v. Dum- 
 mer, 40 Maine 172; Kennebec & Portland R. v. Palmer, 34 Maine 
 366; Cross v. Pinckneyville Mill Co., 17 111-54; Athol Music Hall 
 Co. v. Gary, 116 Mass. 471. 
 
 I do not regard the case of Peninsular R. Co. v. Duncan, 28 Mich. 
 130. as an authority in point. Without assenting to the conclusion 
 reached in that case by a majority of the court (there being an able 
 dissenting opinion against it), I need only remark, for the purposes of 
 this case, that the construction adopted by the court was placed upon 
 the peculiar phraseology of the statute which it was held referred to 
 preliminary subscriptions, thereby intending to make the signers 
 thereof members of the corporation when established. There being 
 no such reference or intention contained in the language of our stat- 
 ute, I am of the opinion that the defendant's intestate can not be held 
 liable as a stockholder by reason of his signature to the paper submit- 
 ted in evidence. Accordingly the judgment of the court below is af- 
 firmed. 
 
 PHILLIPS, C., not sitting. EWING, C., concurs. HOUGH, C. J., 
 absent. 
 
 Note. See 1854, Troy & Boston R. Co. v. Tibbitts, 18 Barb. (N. Y.) 297; 
 1856, Buffalo & N. Y. R. Co. v. Dudley, 14 N. Y. 336; 1861, Poughkeepsie & 
 B. R. Co. v. Griffin, 24 N. Y. 150; 1873, Carlisle v. Saginaw Valley R. Co., 27 
 Mich. 31ft; 1874, DutchesB, etc., Co. v. Mabbett, 58 N. Y. 397; 1875, Reed v. 
 Richmond, etc., Co. 50 Ind. 342; 1875, Parker v. N. C. M. R. Co., 33 Mich. 
 23; 1878, Monterey, etc., Co. v. Hildreth, 53 Cal. 123. Beach, 513; Clark, 
 p. 271 ; Cook, 57-59; Elliott, 344; Morawetz, 54-57; Taylor, 516; I 
 Thompson, 1157-1160.
 
 464 THE PHILADELPHIA SAVINGS INSTITUTION. IO2 
 
 Sec. 102. Same. The statute may make those who incorporate 
 members and not those who take the stock. 
 
 THE CASE OF THE PHILADELPHIA SAVINGS INSTITUTION. 1 
 
 1836. IN THE SUPREME COURT OF PENNSYLVANIA, i Wharton 
 (Pa.) Rep. 461-468. 
 
 At the last term, an application was made by Mr. Norris for a rule 
 to show cause why an information in the nature of a writ of quo ivar- 
 ranto should not be filed, to inquire by what authority Joseph Feinour 
 and others exercised the rights of members of the Philadelphia Sav- 
 ings Institution. 
 
 At the same time a rule was granted upon the president and direc- 
 tors of the same institution, to show cause why a mandamus should 
 not issue, requiring them to admit William C. Bridges to participate 
 in the transaction of the said institution, at its meetings of business. 
 
 Upon the return of these rules, the following appeared to be the 
 material circumstances : 
 
 The Philadelphia Savings Institution was incorporated by an act of 
 the legislature of Pennsylvania, passed on the 5th day of April, 1834. 
 
 The first section declared that certain persons therein named (forty- 
 six in number) "and all and every other person or persons, hereafter be- 
 coming members of the Philadelphia Savings Institution, in the man- 
 ner hereinafter mentioned," should be created and made a corpora- 
 tion and body politic, with the usual powers and capacities. 
 
 The 2d, 30! and 4th sections were as follows: 
 
 "Sec. 2. The object of this corporation shall be to receive from 
 time to time, and at all times, from all persons disposed to entrust 
 them therewith, such funds as may be deposited with them, and for 
 which they shall pay to the depositor such rates of interest as may be 
 from time to time agreed upon by the directors of the said institution : 
 Provided, That the said rates of interest shall not be reduced with- 
 out giving at least sixty days' notice of their intention so to do, in two 
 or more of the daily papers of the city of Philadelphia. 
 
 "Sec. 3. For the security of the depositors of the said institution, 
 it shall be the duty of the persons named in the first section, and of 
 their associates, to raise and form a capital for the said institution, of 
 not less than $50.000, nor more than $200.000, in shares of $25 each, 
 which capital shall be at all times liable to the depositors for the 
 amount of their deposits and of the interest accruing thereon. The 
 said shares shall be transferable on the books of the company in such 
 manner as may be designated by the by-laws of the said institution. 
 
 "Sec. 4. There shall be a meeting of the members of the said Phila- 
 delphia Savings Institution, on such a day in the month of May next, 
 and at such place as the five persons first named in this act, or any 
 
 1 Note. Arguments omitted.
 
 102 STOCKHOLDERS NOT ALWAYS MEMBERS. 465 
 
 three of them, shall appoint, and give at least ten days' notice of such 
 meeting in two or more newspapers printed in the city of Philadelphia, 
 and on such day in the month of May, and at such place annually 
 thereafter as the by-laws of said institution shall provide, for the pur- 
 pose of choosing from among the members, thirteen directors to man- 
 age the affairs of the said institution for twelve months thereafter, and 
 until a new election shall take place, and the five persons first named 
 shall be judges of the first election of directors, and the judges of all 
 future elections shall be appointed, and notice of such elections given 
 in such manner as the by-laws shall provide." 
 
 The fifth section declared the duties and powers of the directors; 
 among which it was provided that they should have power to "pro- 
 vide for the admission of members, and furnishing proofs of such ad- 
 mission," and to pass all such by-laws as shall be necessary to the 
 exercise of their powers and of the other powers vested in the corpo- 
 ration by the charter; " Provided, that all such by-laws as shall be 
 made by the directors, may be altered or repealed by two-thirds of 
 the members, at any annual meeting, or at any general meeting called 
 in pursuance of any by-law made for that purpose ; and the majority 
 of members may, at any annual or general meeting, pass by-laws 
 which shall be binding upon the directors." 
 
 The sixth section authorized the corporation to invest its funds in 
 public stocks of the state, or of the United States, or in real securi- 
 ties, or in the discount of notes, and personal securities; provided that 
 the rate of discount should not exceed one-half per cent, for thirty 
 days. 
 
 The seventh section was as follows : 
 
 "Sec. 7. It shall be the duty of the directors, at least once in every 
 six months, to appoint from the members of the said coporation, five 
 competent persons as a committee of examination, whose duty it shall 
 be to investigate the affairs of the said corporation, and to make and 
 publish a report thereof in one or more newspapers printed in the city 
 of Philadelphia and it shall also be the duty of the directors, on the 
 first Monday of January and July, in each and every year, to make 
 and declare a dividend of the interest and profits of the said corpora- 
 tion, after paying its expenses, and the same to pay over to the stock- 
 holders or their legal representatives, within ten days thereafter." 
 
 The eighth section provided that nothing in the act contained should 
 be so construed as to give or extend any banking privileges to the in- 
 stitution, or to give or allow any compensation to the directors thereof . 
 
 Shortly after the act of incorporation, the directors adopted certain 
 by-laws, among which were the following: 
 
 "Law 4. Any member of the institution may, by writing addressed 
 to the treasurer, resign and relinquish his place and right as a member 
 of the institution, and every member who shall cease to be a stock- 
 holder, shall at the same time cease to be a member. 
 
 "Law 5. No person shall be eligible as a member, unless he shall 
 have been a depositor one year, or a stockholder six months. All 
 
 30 WIL. CASES.
 
 466 THE PHILADELPHIA SAVINGS INSTITUTION. IO2 
 
 elections for membership shall be by ballot at a general meeting of 
 the institution, at which the votes of two-thirds of the whole number 
 of members of the institution shall be requisite for admission." 
 
 At a general meeting held on the 5th of January, 1836, the old by- 
 laws were repealed by the members and in lieu of the above laws, 
 viz., law 4th and 5th, they passed the following by-laws: 
 
 "Law 3, section 3. The number of members of the institution 
 shall be limited to fifty, and in case of vacancy by death, resignation 
 or otherwise, it shall be the duty of the president immediately to call 
 a general meeting of the institution to supply such vacancy, and at 
 any election of members a majority of the whole number of members 
 shall be present, and the person or persons balloted for shall have 
 received the votes of at least two-thirds of the members present. 
 
 Provided, that no person shall be elected a member who shall not 
 have been nominated at some meeting previous to that at which he 
 shall be balloted for. 
 
 Sec 4. Any member of the institution may, by writing addressed 
 to the president, resign and relinquish his place and right as a mem- 
 ber of the institution at any general meeting of the members." 
 
 The law No. 5 above quoted was repealed. 
 
 The board of directors afterward, viz., on the i4th of January, 
 1836, passed the following by-law, being a repeal of and in substitu- 
 tion of by-law 4 above : 
 
 "Law 4. Any member of the institution may, by writing addressed 
 to the president, resign and relinquish his place and right as a mem- 
 ber of the institution at any general meeting of the members." 
 
 The questions submitted to the court were : 
 
 1. Whether persons originally members, who had transferred their 
 stock and no longer possessed any interest in the stock, continued to 
 be members, with the right of voting for directors, etc. 
 
 2. Whether a person to whom stock in the institution was as- 
 signed as upon purchase became a member, ipso facto, without 
 admission by the directors. 
 
 Mr. James S. Smith and Mr. Sergeant contended that none but 
 persons having a pecuniary interest in the corporation by holding 
 stock, were to be considered as members. Mr. W. M. Meredith and 
 Mr. Broom, contra. 
 
 ROGERS, J. The rules obtained in this case involve two questions, 
 which depend upon the construction of the act of the 5th of April, 
 1834, incorporating the Philadelphia Savings Institution. 
 
 1. Is a stockholder a member of the corporation, and as such en- 
 titled to participate in its business? 
 
 2. Does he cease to 'be a member when he ceases to be a stock- 
 holder? 
 
 In relation to the power of admitting members of a corporation, as is 
 said in Angel and Ames on Corporations, 62, reference must often be 
 had to the provisions and spirit of the charter, and when the charter 
 is silent, we must look to the provisions of the common law, and to 
 the particular nature and purpose of the corporation. In certain cor-
 
 102 STOCKHOLDERS NOT ALWAYS MEMBERS. 467 
 
 porations (such, for example, as religious, charitable and literary) the 
 number of members is often limited by charter, and whenever there 
 is a vacancy, it is usually filled by a vote of the company. As regards 
 trading and joint stock operations, no vote of admission is requisite, 
 for any person who owns stock therein, either by original subscription 
 or by conveyance, is in general entitled to, and can not be refused, the 
 rights and privileges of a member. Gray v. Portland (3 Mass. 364) ; 
 King v. Bank of England (Doug. 524). In moneyed institutions, such 
 as banks, insurance, canal and turnpike companies, etc., the mere 
 owning of shares in the stock of the corporation gives a right of vot- 
 ing, and a stockholder ceases to be a member by a transfer of stock. 
 There is then this marked distinction arising from the nature of the 
 corporation. In the one case, a pecuniary interest is the evidence of 
 membership, whilst the affairs of religious, charitable or literary in- 
 stitutions are committed to those who have no pecuniary interest 
 whatever in their management. If this were a corporation of the 
 former description, it would greatly strengthen the argument of the 
 respondent's counsel, but I can not view it in that light, but look upon 
 this and all institutions of a like kind as partaking of the nature of a 
 charity, where the professed object is to advance the interests of the 
 poor and helpless. The object of this institution is declared to be, 
 to receive from time to time, from all persons disposed to entrust 
 them therewith, such funds as may be deposited with them, and for 
 which they are to pay the depositors such rates of interest as may 
 be from time to time agreed upon by the directors. These deposits, 
 as is well known, are made in small sums by the poor, and the insti- 
 tution is professed to be more especially for their benefit. In aid of 
 this object, and as subsidiary to it, the legislature in the third section 
 directs that for the security of the depositors, etc., it shall be the duty 
 of the persons before named, and of their associates, to raise a capital, 
 etc., of not less that $200,000, in shares of $25 each. Which capital 
 is to be at all times liable to the depositors for the amount of their 
 deposits and the interest. 
 
 In other institutions of the like kind, the latter provisions are 
 omitted ; they were manifestly introduced into this charter, not for 
 the benefit of the stockholders, but as an additional security or pledge 
 to the depositors. As an inducement to make this investment, in the 
 sixth section the corporation is authorized to invest its funds "in pub- 
 lic stocks of this state, or the United States, or real securities or in 
 the discount of notes and personal securities;" and in the seventh 
 section the directors are authorized to declare a dividend of the inter- 
 est and profits of the corporation, after paying its expenses., and to 
 pay it over to the stockholders, or their legal representatives. It seems 
 to me most clear that the legislature had no intention of establishing 
 a joint stock company, but that there was a mere modification or 
 change in the provisions usually inserted in the charters of savings fund 
 institutions. 
 
 But at any rate these rules of construction only apply when the 
 charter is silent. So that in this, as in every other case, we must look
 
 468 THE PHILADELPHIA SAVINGS INSTITUTION. IO2 
 
 to the act itself, having regard to the particular nature and purpose of 
 the corporation. In the charter there are antagonist interests ; the in- 
 terest of the stockholders is in some measure in opposition to the 
 interest of the depositors. It is for the benefit of the one to decrease, 
 and the other to increase the rate of interest on deposits; and hence, 
 there may be a peculiar propriety in the legislature to intrust the con- 
 trol of the funds to persons who have no pecuniary interest in the cor- 
 poration. At least I perceive nothing in this of which the stockhold- 
 ers have any right to complain. If the stockholders have the exclu- 
 sive management of the institution, for which the respondents con- 
 tend, a temptation is held out to divert the institution from its original 
 and primary object and convert it into a bank, differing only in the 
 fact that it is a bank of discount and deposit, and not of circulation. 
 Besides, if a pecuniary interest is the only criterion of membership it 
 may with equal plausibility be said that the depositors are members 
 also, and as such entitled to participate in its management. In the 
 first section it is enacted "that the persons therein named, and all 
 and every other person or persons hereafter becoming members of the 
 Philadelphia Savings Institution, in the manner hereinafter men- 
 tioned, shall be and are hereby created and made a corporation by 
 the name and style of the Philadelphia Savings Institution." The 
 manner in which they can become members is pointed out in the fifth 
 section. Among other matters, the directors have power to provide 
 for the admission of members and furnishing proofs of such admis- 
 sion. This we conceive to be inconsistent with the idea that a stock- 
 holder is ipso facto a member of the corporation ; for if so why confer 
 the power to provide for the admission of members? The legislature 
 does not confine the power to furnishing proofs of the admission of 
 members, but they, in express words, grant the power to admit mem- 
 bers of the corporation. This we conceive to be an authority to elect 
 such persons as members as they may deem best fitted to carry into 
 effect the objects of the charter. The respondent's case also derives 
 additional strength from the seventh section. A distinction is there 
 taken between a member of the corporation and a stockholder. It is 
 made the duty of the directors to appoint from the members of the 
 corporation five competent persons as a committee of examination to 
 investigate the affairs of the corporation ; and in the same section to 
 declare a dividend, etc., and pay the same over to the stockholders, 
 or thefr legal representatives. Why, it has been asked, this change 
 of phraseology, if a stockholder, as such, is a member of the corpo- 
 ration ? It is also worthy of remark that the legislature wholly omit 
 to regulate the right of voting; a regulation always introduced in all 
 joint-stock incorporations. It is the uniform policy to limit the num- 
 ber of votes to which stockholders may be entitled, in all such com- 
 panies, a limitation which would not have been omitted had the leg- 
 islature conceived this to be an institution of that description. 
 
 Reliance has been placed on the word "associates," in the third 
 section, which the counsel of the commonwealth says must refer to 
 stockholders. This is an argument not without plausibility. This
 
 i [Oj SIGNING ARTICLES. 469 
 
 section makes it the duty of the persons named in the act, and of 
 their associates, to raise a capital of not less than $200,000; but in 
 what manner this is to be effected is left to their discretion. It would 
 seem to be the intention of the legislature to give power to admit 
 members before, as well as after, the capital was raised ; and indeed 
 they might have required the aid of others than those named to effect 
 this result. I see nothing in the act which forbids this, but I think a 
 fair construction of this part of the charter shows that this power was 
 intended to be given. If so, this is an argument to show that a 
 moneyed interest is not an indispensable condition of membership. 
 
 It is said that the directors have passed a by-law that every mem- 
 ber who shall cease to be a stockholder shall cease to be a member. 
 Whether this is so or not is of little importance ; for although the 
 charter give authority to the directors to admit members, there is none 
 given to disfranchise them. A by-law may modify and change the 
 constitution of a corporation, but can not alter it. It may regulate in 
 a reasonable manner, the exercise of a right in the internal affairs of 
 a corporation, in the conduct of its members, or the mode by which 
 a person is admitted to the exercise of a right to which it has an in- 
 choate title ; but it can not take away a right, or impose any unrea- 
 sonable restraint in the exercise of it. 2 Kyd on Corporations, 107, 
 122. 
 
 Rules discharged. 
 
 Sec. 103. Same. The statute may require signing and acknowl- 
 edging articles of association by original shareholders. 
 
 COPPAGE, RECEIVER, v. BUTTON. 
 
 1890. IN THE SUPREME COURT OF INDIANA. 124 Indiana Reports 
 401-403, 7 L. R. A. 591, 24 N. E. Rep. 112. 
 
 From the Montgomery circuit court. 
 
 ELLIOTT, J. The appellant sues as the receiver of an insolvent 
 corporation, and seeks to recover a subscription which he alleges the 
 appellee made to the capital stock of the corporation. It is alleged that 
 the appellee, with others, signed articles of association, and that he 
 agreed to take two shares of the capital stock, and pay therefor $100. 
 The introductory clause of the articles of association reads thus: "We, 
 the undersigned, agree to take the stock in the amount set opposite 
 our names in a company to be organized for manufacturing and sell- 
 ing the Williamson Straw Stacker." There were eighty-three sign- 
 ers, and seven of them acknowledged the execution of the articles of 
 association before a notary public, and the instrument was duly 
 recorded. It is also alleged that $8,000 of stock was subscribed, that 
 the company was duly organized and a board of directors elected. 
 
 There can be no doubt under the authorities that a valid subscrip-
 
 4/0 COPPAGE V. HUTTON. 103 
 
 tion to the capital stock of a corporation may be made by signing the 
 preliminary articles. Such a subscription becomes enforcible upon 
 the perfection of the corporate organization according to the law un- 
 der articles of association. Miller v. Wild Cat G. R. Co., 52 Ind. 
 51 ; Nulton v. Clayton, 54 Iowa 425; Phoenix, etc., Co. v. Badger, 
 67 N. Y. 294; Cravens v. Eagle, etc., Mills Co., 120 Ind. 6. If the 
 promise of the appellee is not binding it must be for some other rea- 
 son than that it was made before the organization of the corporation 
 was fully effected. 
 
 The statute requires that the persons who desire to organize a cor- 
 poration shall "make, sign and acknowledge, before some officer 
 capable to take acknowledgment of deeds, a certificate in writing," 1 
 setting forth therein certain enumerated things. Section 3851, R. S. 
 1881. The contention of the appellee is that the promise is not effect- 
 ive, because the complaint shows that only seven of the eighty-three 
 signers acknowledge the certificate. It seems quite clear, under the 
 decision of this court in Indianapolis, etc., Mining Co. v. Herkimer, 
 46 Ind. 142, that the mere signing of the paper was not sufficient to- 
 complete the obligation, and that, in order to make valid and effective 
 articles of association against all who sign, all must acknowledge them 
 as the statute requires. Here it affirmatively appears that seven only 
 of the signers acknowledged the execution of the instrument, and it 
 can not be inferred that those who did not acknowledge it remained 
 bound by its terms. As to them the instrument was incomplete, and 
 it is quite well settled that an incomplete subscription can not be en- 
 forced. Butchers, etc., R. Co. v. Mabbett, 58 N. Y. 397; Reed v. 
 Richmond, etc., R. Co., 50 Ind. 342 ; Richmond St. R. Co. v. Reed, 
 83 Ind. 9; Williamson v. Kokomo, etc., Ass'n, 89 Ind. 389. 
 
 It is, however, argued by appellant's counsel that the complaint 
 does affirmatively show that the corporation was organized, but this 
 does not meet the question, for it may well be that it was organized 
 without the appellee as a stockholder. The fact that he did not ac- 
 knowledge the instrument as the law requires implies that he did not 
 become a stockholder, and there is nothing in the complaint which 
 rebuts or opposes this implication. It devolved upon the plaintiff 
 to remove the inference if he could. As the appellee did not acknowl- 
 edge the instrument as the law requires, he did not become a stock- 
 holder, and if he were insisting that he was entitled to the number of 
 shares set opposite his name, it is quite clear that the corporation 
 might successfully resist his claim, since it is obvious that only those 
 who acknowledge the articles of association as the law requires can 
 successfully insist upon their right to stock. If the appellee can not 
 be regarded as a stockholder, then it seems quite clear that he did not 
 bind himself bv simply signing the articles of association. 
 
 Whether a good complaint can be framed is not the question before 
 us, for the only question presented by the record is as to the sufficiency 
 of the complaint as it is written. 
 
 Judgment affirmed. 
 
 Note. See cases cited, supra, p. 463.
 
 104 AGREEMENTS TO SUBSCRIBE TO STOCK. 471 
 
 ARTICLE III. FORMS OF ASSOCIATION CONTRACTS,' COMMON LAW 
 SUBSCRIPTION CONTRACTS. 
 
 Sec. 104. ( I ) Agreements to subscribe for stock in a corpora- 
 tion formed or to be formed. 
 
 CHARLESTHRASHERv. THE PIKE COUNTY RAILROAD COMPANY. 1 
 
 1861. IN THE SUPREME COURT OF ILLINOIS. 25 111. Reports, p. 
 393 (Orig. eel.) ; p. 340-348, Gross's Edition, 1876. 
 
 Appeal from the circuit court of Pike county; the Hon. J. S. 
 Bailey, judge, presiding. 
 
 This was an action of assumpsit, by the Pike County Railroad 
 Company against Charles Thrasher, upon the following agreement: 
 
 "We, the undersigned, agree to subscribe to the stock of the Pike 
 County Railroad, the sum set against our names, when the books may 
 be opened for subscription. 
 
 "Griggsville, March 19, 1856. 
 
 "Charles Thrasher $3,000." 
 
 Mr. JUSTICE BREESE delivered the opinion of the court. 
 
 The appellee, who was plaintiff in the court below, urges several 
 reasons justifying a recovery in this case, which it is necessary to no- 
 tice. The declaration contains a special count, averring that on the 
 i9th of March, 1856, the plaintiffs were a body politic and corporate 
 with power to construct and operate a railroad within the county of 
 Pike, and authorized by law, as such corporation, to secure subscrip- 
 tions to the capital stock of the company to the amount of $1,000,000, 
 in shares of $100 each, and, desiring to ascertain what amount of stock 
 would be subscribed, and not having opened regular subscription 
 books, but intending so to do, agreed with the defendant that they 
 would, in a reasonable time thereafter, open books for the purpose 
 of securing such subscriptions, and that they would permit and allow, 
 the defendant, when the book should be opened, to subscribe to the 
 capital stock of the company thirty shares of $100 each, and upon 
 payment therefor, the defendant should be the owner of thirty 
 shares of the capital stock of the company. It is then averred that 
 the defendant, in consideration of this promise, undertook and prom- 
 ised the plaintiff that he would subscribe to the stock of this company 
 the sum of $3,000 when the books should be opened for subscriptions ; 
 that this promise was by a writing, signed by the defendant, and by 
 him delivered to the plaintiff. It is then averred, that on the same 
 day subscription books to the capital stock of the company were 
 opened, of which the defendant had notice. The breach is, that the 
 defendant neglected and refused to subscribe anything to the capital 
 stock, accompanied by an averment that the subscription, when the 
 
 1 Only the part of the opinion relating to the nature of the agreement to sub- 
 scribe is piven.
 
 4/2 THRASHER V. PIKE COUNTY R. CO. 104 
 
 I 
 
 books were opened, was due and payable before the commencement 
 of the suit, and although notified thereof, the defendant has refused 
 to pay any part of the sum of the $3,000. The common counts are 
 added, in one of which the indebtedness is alleged to be for 100 shares 
 of the stock of the Pike County Railroad, before that time bargained 
 and sold to the defendant. 
 
 This is the cause of action as set forth by the plaintiffs, and it is 
 claimed by them that they are entitled to recover as damages the par 
 value of the. stock, or the amount of calls made from time to time 
 upon it, and which, at the commencement of the suit, amounted to 
 fourteen installments, of five per cent, each, making, in all, $2,100. 
 This, we do not think, is a fair view of the defendant's liability 
 upon his promise, if one was made to the plaintiffs. His undertaking 
 is to subscribe a certain amount of stock when the subscription books 
 should be opened. This promise does not make him a stockholder, 
 and, as such, liable to calls. The company has parted with no stock 
 to him, and can only claim as damages the actual loss sustained by 
 them by his failure, or refusal to subscribe, when he was notified that 
 the books were opened for such purpose. The company has the stock 
 which the defendant promised to take, but did not take. His promise 
 is like any other promise or agreement to purchase any specific article 
 of property. If the property contracted be retained by the vendor, 
 and there is no delivery to the purchaser, or offer to deliver, the dam- 
 ages must not be measured by the value of the property, for it would 
 not be just, in such cases, that the vendor should retain the property 
 and recover also the value of it from the promisor. Some damage 
 might result from the loss of a bargain, and to such the vendor would 
 be entitled, if the extent could be established. In many cases they 
 would be merely nominal. On an agreement for the sale and pur- 
 chase of stocks, and a refusal by the purchaser to take the stocks, the 
 measure of damages, ordinarily, might be the difference between the 
 par value of the stocks and their market value, or between them and 
 money. As well argued by the appellant, the defendant, having vio- 
 lated his promise by failing to subscribe, he has acquired no right to 
 stock, nor could a recovery in this action entitle him to become a 
 stockholder. The company retains its stock, and the defendant his 
 money. A stock certificate of $3,000 \vould represent a value to the 
 company equivalent to so much money, and, in a statement of their 
 liabilities, this would appear against the company as so much held by 
 the stockholders, for which the company was responsible. If there 
 is no actual subscription, the company does not incur this liability. 
 There being no special damage alleged, or proved, we do not think 
 the plaintiffs could recover under this declaration, as they have done, 
 the par value of the stock the defendant promised and agreed to take. 
 A proper count might doubtless be so framed as to justify a full re- 
 covery under sufficient proof. * * * 
 Reversed. 
 
 Note. See note at the end of next case.
 
 105 AGREEMENTS TO SUBSCRIBE TO STOCK. 473- 
 
 .Sec. 105. Same. 
 
 STRASBURG RAILROAD COMPANY v. ECHTERNACHT. 1 
 
 1853. IN THE SUPREME COURT OF PENNSYLVANIA. 21 Pa. St. Rep. 
 220-222, 60 Am. Dec. 49. 
 
 Certiorari to the common pleas of Lancaster county. 
 
 This was a bill in equity on the part of the railroad company, filed 
 'with the view of enforcing the specific performance of an agreement, 
 which was as follows: 
 
 "We, the undersigned, agree to take the number of shares of the 
 capital stock of the Strasburg Railroad Company, set opposite to our 
 respective names, the price per share to be $100, provided there can 
 be a charter obtained at the next ensuing session of the legislature of 
 Pennsylvania, granting said company to terminate said road at the 
 east end of the borough of Strasburg, and connecting with the state 
 road at or near Lemon Place ; granting also the said company to do 
 all the business connected with the road, such as forwarding and re- 
 ceiving produce of all kinds, coal, lumber, and all other commodities 
 as are transportable over other railroads." 
 
 William Echternacht, the defendant, was a signer for five shares. 
 Application was made to the legislature, and on the I ith of Feb- 
 ruary, 1851 (which was during the next ensuing session after the 
 signing of the agreement), the act to incorporate the Strasburg Rail- 
 road Company was passed (Pam. L. p. 53), the provisions of which 
 are in accordance with the terms specified in the above agreement. 
 
 The road was commenced, and it was alleged that the property of 
 the defendant rose in value. He, however, refused to subscribe to 
 the stock of the company, and the bill in question was filed. 
 
 On the part of the defendant the bill was demurred to. The facts 
 stated in the bill were not confessed, but it was alleged that no matter 
 of equity was stated in the bill whereon a decree of specific perform- 
 ance should be made. 
 
 The demurrer was sustained by the court below, and the bill was 
 dismissed ; and to this error was assigned. 
 
 BLACK, C. J. Before the Strasburg Railroad Company was incor- 
 porated the defendant and others signed a paper, agreeing that if it 
 should be incorporated with certain privileges, they would subscribe 
 the number of shares set opposite to their respective names. The char- 
 ter was obtained, and the defendant refused to take the stock. Where- 
 upon the company brought this bill in equity to enforce specific per- 
 formance of the contract. 
 
 A contract can not be made by one person alone. It takes two to 
 make a bargain. Before a promise becomes a binding obligation, it 
 must not only be made to, but must be expressly or impliedly accepted 
 
 Arguments omitted.
 
 474 BRYANT'S POND STEAM MILL co. v. FELT. 106 
 
 by the party for whose benefit it was meant. The paper before us is 
 no more than a naked expression of the subscriber's intention to pur- 
 chase certain shares in the capital stock of a company which it was 
 expected would be incorporated by the legislature. Besides it is 
 without any sufficient consideration. It is not pretended and can not 
 be made out from the paper, that the agreement of the defendent was 
 the motive of the others for taking stock. It is well settled that pro- 
 curing legislation of any kind, is not a consideration which will sup- 
 port even a direct promise to pay a fair compensation for the labor of 
 the promisee about such a business. 
 
 Again: If there was a binding engagement, it was not made with 
 the railroad company, which did not exist at the time. 
 
 But, supposing this to have been a valid contract, to which the 
 plaintiff was a party, and based upon good consideration, a bill in 
 equity is not the mode of enforcing it; the remedy at law for its vio- 
 lation being full, complete and adequate. 
 
 Decree affirmed. 
 
 Note. See, 1880, Lake Ontario, etc., Co. v. Curtis, 80 N. Y. 219 ; 1898, Yonk- 
 ers' Gazette Co. v. Taylor, 30 N. Y. App. Div. 334, on 337 ; 23 Am. and Eng. 
 Enc., p. 786; Beach, 61-65, 510-554; Clark, 99; Cook, 52-63; Elliott, 
 345, 345a, 348 ; Morawetz, 47, et seq.; Taylor, 509-512, 1 Thompson, 
 1138-1145. 
 
 See. 106. (2) Agreements subscribing to stock in a corporation 
 to be formed. Theories: 
 
 (#) A mere offer that may be withdrawn at any time before 
 organization and acceptance by the corporation. 
 
 BRYANT'S POND STEAM MILL COMPANY v. JOHN G. FELT. 1 
 
 1895. IN THE SUPREME COURT OF MAINE. 87 Maine Rep. 234-240, 
 47 Am. St. R. 323. 
 
 On report. 
 
 This was an action of assumpsit brought to recover of the defendant 
 the sum of two hundred dollars, as appeared by his alleged subscrip- 
 tion upon an original subscription book, and upon the outer cover of 
 which was the following writing: "Subscriptions for a steam mill 
 to be erected at or near Bryant's Pond." The original agreement 
 was as follows: 
 
 "We, the undersigned, hereby agree to pay for the number of 
 shares set opposite our names, said shares to be ten dollars each, and 
 non-assessable, for the purpose of erecting suitable buildings, with 
 steam power, for the manufacturing of various kinds of wood to be 
 
 1 Arguments omitted.
 
 106 AGREEMENTS SUBSCRIBING TO STOCK. 475 
 
 used in the contract of one C. H. Adams, he paying three per cent, 
 annually as rent on all money so paid, said moneys to be paid when 
 needed for the purpose above named, providing the town will abate 
 taxes on said buildings and stock for the term of ten years." 
 
 Plea, general issue and the following brief statement: 
 
 And for a brief statement of special matter of defense, to be used 
 under the general issue pleaded, the defendant further says: That 
 said defendant never subscribed for nor promised to pay for any shares 
 in the said Bryant's Pond Steam Mill Company ; that the signature 
 of said defendant was procured and affixed to said paper declared on, 
 if at all, on Sunday, and whatever contract was made, if any, was 
 made on Sunday, and therefore void ; that subsequent to the time his 
 said name was affixed to said paper and prior to the commencement 
 of this suit, and prior to the organization of this company, this de- 
 fendant revoked said subscription and notified the plaintiff and the 
 solicitors for said stock that he should not accept the same, and re- 
 quested his name stricken from the list of subscribers; that no person 
 is named in said subscription paper as payee, and no contract was 
 ever entered into with any person or persons ; that no sum is named 
 in said paper declared upon as a limit to the amount to be raised and 
 is indefinite and uncertain; that a sufficient sum was not raised or 
 subscribed for erecting buildings with steam power for the manufact- 
 uring of the various kinds of wood, as alleged, and plaintiff was 
 obliged to, and did, mortgage the property to complete the amount; 
 that at the time the plaintiff company pretended to organize, this de- 
 fendant was not recognized as a subscriber, did not participate in the 
 organization, and is not named therein as one of the subscribers to 
 the stock of the same ; that there were conditions attached to said 
 subscription paper which are essential to be performed, and which 
 have never been performed on the part of this plaintiff or any other 
 parties interested in the said subscription, or on the part of the town 
 of Woodstock ; that said paper, purporting to be a subscription of 
 shares of stock, is without consideration and void. 
 
 WALTON, J. The only question we find it necessary to consider 
 is whether a subscriber to the capital stock of an unorganized corpo- 
 ration has the right to withdraw from the enterprise, provided he ex- 
 ercises the right before the corporation is organized and his subscrip- 
 tion is accepted. We think he has. Such a subscription is not a com- 
 pleted contract. It takes two parties to make a contract. A non- 
 existing corporation can no more make a contract for the sale of its 
 stock than an unbegotten child can make a contract for the purchase 
 of it. 
 
 The right of subscribers to the capital stock of a proposed corpora- 
 tion to withdraw their subscriptions at any time before the organiza- 
 tion of the corporation is completed has been affirmed in several recent 
 and well-considered opinions. The right rests upon the impregnable 
 ground of the legal impossibility of completing a contract between 
 two parties, only one of which is in existence. There can be no 
 meeting of the minds of the parties. There can be no acceptance of
 
 47 6 BRYANT'S POND STEAM MILL co. v. FELT. 106 
 
 the subscriber's proposition to become a stockholder. There can be 
 no mutuality of rights or obligations. There can be no consideration 
 for the subscriber's promise. As said in one of our own decisions, 
 it is a mere nudum pactum a promise without a promisee a con- 
 tractor without a contractee. In fact, every element of a binding con- 
 tract is wanting. If the subscriber's promise to take and pay for shares 
 remains unrevoked till the organization of the proposed corporation is 
 effected, and his promise has been accepted, then we have all the ele- 
 ments of a valid contract. Competent parties. Mutuality of duties 
 and obligations. A valid consideration, the promise of one party 
 being a sufficient consideration for the promise of the other. A prom- 
 isee as well as a promisor. A contractee as well as a contractor. In 
 fact, all the elements of a valid contract are present, and the subscrip- 
 tion has become binding upon both of the parties. But, till the cor- 
 poration has come into existence, all these elements are necessarily 
 wanting, and the subscriber's promise amounts to no more than an 
 offer, which, like all mere offers, may be withdrawn at any time be- 
 fore acceptance. When accepted it becomes binding. Till accepted 
 it remains revocable. This conclusion is sustained by reason and 
 authority. 
 
 In Starrett v. Rockland Co., 65 Maine 374, the plaintiff sought to 
 recover a portion of the dividends of a successful insurance company. 
 He had subscribed for five shares of the stock before the organization 
 was effected ; but the evidence of acceptance of his subscription by 
 the corporation after its organization was not satisfactory, and the 
 court held that without such acceptance there was no completed or 
 binding contract; that the minds of the parties never met; that the 
 plaintiff's subscription, being made before the corporation came into 
 existence, amounted to no more than a proposal to take so many 
 shares a mere nudum pactum imposing no obligations and securing 
 no rights. 
 
 And in Carr v. Bartlet, 72 Maine 120, the right of subscribers to 
 withdraw from such undertakings while they remain inchoate and in- 
 complete, is recognized and affirmed. 
 
 In Muncy Traction Engine Co. v. Green, 143 Pa. St. 269, 13 Atl. 
 Rep. 747, decided in 1888, the defendant had been active in procur- 
 ing subscribers to the capital stock of a proposed corporation, and 
 had himself subscribed for twenty shares, but he wrote to the chair- 
 man of the meeting for the organization of the corporation, that, for 
 reasons satisfactory to himself, he withdrew his subscription. The 
 court ruled that the defendant had a right to withdraw his subscrip- 
 tion at any time before the organization of the corporation was com- 
 pleted ; and the jury having found as a matter of fact that the with- 
 drawal was before the organization of the corporation was completed, 
 a verdict for the defendant was affirmed, and judgment rendered 
 thereon. 
 
 In Hudson Real Estate Co. v. Tower, 156 Mass. 82 (1892), the 
 action was founded on a subscription to the capital stock of an unor- 
 ganized corporation, and the defense was based on an alleged with-
 
 106 AGREEMENTS SUBSCRIBING TO STOCK. 477 
 
 drawal of the subscription. The right to withdraw was controverted. 
 The court held that at the time when the defendant signed the sub- 
 scription paper declared on, it was not a contract; for want of a con- 
 tracting party on the other side ; that while such a subscription may 
 become a contract after the corporation has been organized, still, until 
 the organization is effected, and the subscription is accepted, it is a 
 mere proposition or offer, which may be withdrawn like any other 
 unaccepted proposition or offer. 
 
 It is urged by the counsel for the plaintiff corporation that such sub- 
 scriptions create binding and enforcible contracts between the sub- 
 scribers themselves, and are, therefore, irrevocable, except with the 
 consent of all the subscribers; and some of the authorities cited by him 
 seem to sustain that view. But we find, on examination, that such 
 views, when expressed, are in most cases mere dicta, and that the 
 cases are very few in which such a doctrine had been acted upon. 
 Reason and the weight of authority are opposed to such a view. Of 
 course, subscription papers may be so worded as to create binding 
 contracts between the subscribers themselves. But we are not now 
 speaking of such subscriptions ; or of voluntary and gratuitous sub- 
 scriptions to public or charitable objects, which, when accepted and 
 acted upon, become binding. We are now speaking only of subscrip- 
 tions to the capital stock of proposed business corporations. With 
 regard to such subscriptions we regard it as settled law that they do 
 not become binding upon the subscribers till the corporations have 
 been organized and the subscriptions accepted; and that, till then, the 
 subscribers have a right to revoke their subscriptions. And, in view 
 of the fact that such subscriptions are often obtained by over-persua- 
 sion, and upon sudden and hasty impulses, we are not prepared to say 
 that the rule of law which allows such a revocation is not founded in 
 wisdom. We think it is. 
 
 In the present case an old man, upwards of eighty years of age, 
 and now dead, was induced to subscribe for twenty shares of stock in 
 a proposed, but not then organized, manufacturing corporation; but 
 after a little reflection, he determined to revoke his subscription and 
 withdraw from the enterprise. He notified the agent of the pro- 
 moters, through whom his subscription had been obtained, of his de- 
 termination to withdraw, and requested him to take his name off the 
 subscription paper. And he again sent word by his son to have his 
 name taken off. And notice of his withdrawal, and of his request to 
 have his name taken off of the subscription paper, was given to the 
 other subscribers at one of their meetings, and before the corpo- 
 ration was organized. We think his withdrawal was legal and com- 
 plete, and that no action to recover the amount of his subscription is 
 maintainable. 
 
 Other grounds are urged in defense of the action, but it is unneces- 
 sary to consider them. 
 
 Judgment for defendant. 
 
 Note. See note at end of next case.
 
 HUDSON REAL ESTATE CO. V. TOWER. IO/ 
 
 Sec. 107. Same. Notice of withdrawal. 
 
 HUDSON REAL ESTATE COMPANY v. HERMAN C. TOWER. 
 
 1894. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 161 
 Mass. Reports 10-16, 42 Am. St. Rep. 379. 
 
 Contract, to recover the amount of a subscription by the defendants, 
 as copartners, for ten shares of stock in the plaintiff corporation. 
 After the former decision, reported 156 Mass. 82, the case was tried 
 in the superior court before Bond, J. 
 
 The jury returned the verdict for the defendants, and the plaintiff 
 alleged exceptions. The facts sufficiently appear in the opinion. 
 
 ALLEN, J. It was heretofore decided in this case that until the 
 organization of the corporation the defendant's subscription was a 
 mere proposition or offer which might be withdrawn, like any other 
 unaccepted offer. 156 Mass. 82. The principal question which the 
 plaintiff now seeks to present is whether, upon the evidence and under 
 the ruling of the court, the jury were warranted in finding a legal with- 
 drawal or revocation of the subscription. 
 
 The only withdrawal or revocation relied on occurred in an inter- 
 view between one of the defendants and Henry Tower, on August 31, 
 1889. In view of the verdict the only question left is whether a notifi- 
 cation of withdrawal given orally to Henry Tower was sufficient. 
 
 It will be necessary to state the situation of the parties. The con- 
 tract declared on is given below. 
 
 "We, the undersigned, hereby subscribe for and agree to purchase 
 the number of shares set against our respective names, of the capital 
 stock in the corporation to be organized under the laws of such state, 
 as a committee hereafter to be appointed from the subscribers shall 
 determine, said shares of capital stock to be of the par value of $50, 
 and the capital stock of said corporation to be not less than $25,000, 
 said corporation to be organized for the purpose of purchasing land, 
 and erecting a shoe shop thereon, with the necessary appliances con- 
 nected therewith, in the town of Hudson, to be rented, when com- 
 pleted, to H. H. Mawhinney & Co., for a term of ten years at a 
 rental of seven per cent, per annum on the cost of the plant when 
 completed. Said corporation to be organized as soon as may be, and 
 in advance thereof an agreement in writing between a committee of 
 the subscribers, in behalf of all, with said H. H. Mawhinney & Co. 
 to be executed, binding the latter to take said plant for the period 
 and at the terms stated, and on the organization of said corporation to 
 be re-executed to bind both parties. And the subscribers hereto hereby 
 bind themselves severally to pay for said stock to the treasurer of said 
 corporation in the way and manner that the corporation when organ- 
 ized shall determine. And we severally agree that one seal shall be 
 the seal of each. 
 
 "Hudson, August 7, 1889."
 
 107 AGREEMENTS SUBSCRIBING TO STOCK. 479 
 
 The corporation was organized under the laws of Maine. The 
 meeting for the organization was held at Portland, Maine, August 
 29, 1889, at which time the articles of agreement, having been signed, 
 were presented, by-laws were adopted, and officers chosen. The 
 necessary papers were then prepared as required by law, and were 
 approved by the attorney-general of Maine, on September 5, were 
 recorded on September 6, and were received and filed in the office of 
 the secretary of state on September 7, 1889. It was agreed at the 
 argument that, under the laws of Maine, the legal existence of the 
 corporation as a corporation, began on September 7. 
 
 On the 3ist of August, Henry Tower's position was as follows: 
 It must be assumed, though the bill of exceptions does not in express 
 terms so state, that he was one of the subscribers. One of the plaint- 
 iff's requests for instructions assumes that there was a contract of the 
 firm above referred to "with Henry Tower and others in behalf of 
 the associates for the purchase of land and building a shoe shop thereon, 
 dated August 19, 1889." This contract, being thus referred to by 
 the plaintiff as an undisputed fact, must be taken to show that Henry 
 Tower was acting as the person first named on the committee contem- 
 plated by the subscription paper, to obtain an agreement in writing 
 binding said firm to take a lease of the premises. On August 29, at 
 a meeting which apparently was the first formal step in the organiza- 
 tion of the corporation, he was chosen president. By the statutes of 
 Maine, which it was agreed we should refer to, the choice of officers 
 is a necessary preliminary to the creation of th'e corporation. Re- 
 vised Statutes of Maine of 1883, ch. 48, 17-19. 
 
 It is also obvious that on August 31 he was, in the opinion of the 
 jury, acting as an officer in behalf of the associates, and not merely 
 on account of his personal interest as one of the subscribers. Such is 
 the fair result of the instructions taken as a whole. The judge, in the 
 course of his charge, called the jury's attention to this distinction by 
 saying: "If Henry Tower was one of the officers of the associates 
 for the purpose of managing their business, it would not be necessary 
 that any other notice should be given than what was given to him ; 
 but if he went there simply as being interested, not acting as an officer, 
 * * * it may be that he was not an officer, so that he would be a 
 party authorized to receive any notice of withdrawal, and if he was 
 not, then it would be necessary for that fact to be communicated to 
 the meeting." It being pointed out to the judge, at the close of the 
 charge, that the plaintiff's records showed that at the meeting on the 
 29th of August, Henry Tower was chosen president, he further in- 
 structed the jury that if he had been so chosen president, and if the 
 defendants notified him distinctly that if a certain event should happen 
 with reference to the change of the policy of the corporation as to 
 mortgaging its property they would no longer be in the association 
 and would not pay a cent on their subscription, that would be a suffi- 
 cient notification of their withdrawal if the event did happen. The 
 undisputed testimony, so far as it is recited or disclpsed in the bill of 
 exceptions, goes to show that Henry Tower, in that interview, was
 
 480 HUDSON REAL ESTATE CO. V. TOWER. 1 07 
 
 acting in a representative capacity and not merely on his own personal 
 account. The plaintiff's requests for instructions raised no question 
 on this point, but asked the court to rule that, "in order to constitute 
 a valid withdrawal, the defendants must do some act or make some 
 unequivocal or unconditional statement to the proper officer or officers 
 of the associates which shall amount to a public withdrawal from said 
 contract." The instructions were given with reference to this request, 
 and, as we understand them, they amounted to this, that Mr. Tower 
 having been chosen as president, and acting for the associates, was, 
 on August 31, a proper officer to be notified by the defendants of 
 their withdrawal. 
 
 We think this instruction was right. No instruction was asked at 
 the trial that, in order to withdraw from the associates, notice must be 
 given to all of them individually or at a meeting of the associates. 
 The plaintiff only contended that the notice must be given to the proper 
 officer or officers, and it would be plainly impracticable to require a 
 direct personal notice to them all. The right to withdraw would be 
 nugatory if this were necessary. A subscriber who has a right to 
 withdraw may not know, or have the means of knowing, who all of 
 his associates are, or where they live. If he does know, they may be 
 many in number, and widely scattered, or some of them maybe away 
 on a journey. No general meeting of them may be called which he 
 can attend without leaving the state. He need not wait for a meeting 
 before giving his notice of withdrawal. It was, indeed, held, in an early 
 case in England, that all of the other subscribers must not only have 
 notice, but must actually consent, before one of the subscribers could 
 withdraw. Kidwelly Canal Co. v. Raby, 2 Price 93. But, now, in 
 England, as well as here, no such consent is necessary. If every one of 
 the other subscribers should object, yet it is the right of the subscriber 
 to withdraw before the corporation is formed. It is merely a question 
 of giving due notice of his withdrawal. And in England it is not in- 
 timated in any modern case, so far as our examination has gone, that 
 notice must be given to all the other subscribers, or at a meeting of 
 subscribers. The retraction has usually been made to the same per- 
 sons to whom the application for shares was made. See Lindl. Part. 
 (4th ed.) 99105, and numerous cases cited. 
 
 In this country no case has been cited, and we have found none, 
 discussing the question what notice of withdrawal shall be sufficient. 
 In some cases no attempt to withdraw was made till after the corpo- 
 ration was formed. See, for examples, International Fair and Expo- 
 sition Association v. Walker, 83 Mich. 386; Richelieu Hotel Co. v. 
 International Military Encampment Co., 140 111. 248; Ashuelot Boot 
 and Shoe Co. v. Hoit, 56 N. H. 548; Shober v. Lancaster County 
 Park Association, 68 Pa. St. 429. It is said in Cartright v. Dickin- 
 son, 88 Tenn. 476: "Before the organization of the corporation and 
 acceptance of the subscription * * * the promoters might, per- 
 haps, agree to release a subscriber by substituting other names for 
 his." This goes on the idea that the subscriber has not an absolute 
 right to withdraw, and that somebody's assent is necessary. In
 
 107 AGREEMENTS SUBSCRIBING TO STOCK. 481 
 
 Plank's Tavern Co. v. Burkhard, 87 Mich. 182, the subscriber ap- 
 parently made known his refusal to the persons who brought a second 
 paper to be signed by him, and it was held to be sufficient, but the 
 proper mode of giving such notice is not discussed, and the court in- 
 cidentally remarked that "the corporators well knew when the com- 
 pany was organized * * * that the defendants expressly repudiated 
 the whole arrangement." It is held that the death of a subscriber be- 
 fore the formation of the corporation is a revocation of a subscription. 
 Phipps v. Jones, 20 Pa. St. 260; Wallace v. Townsend, 43 Ohio St. 
 537; Pratt v. Elgin Baptist Society, 93 111.475; Sedalia, Warsaw 
 and Southern Railway v. Wilkerson, 83 Mo. 235. Insanity is also 
 held to be a revocation in Beach v. First Methodist Episcopal Church, 
 96 111. 177. Death is a public fact, of which all the world must take 
 notice, though the above decisions were not put on that ground (Mar- 
 lett v. Jackman, 3 Allen 287), but insanity is not. In most of the 
 cases where the right of withdrawal of a subscription has been held 
 to exist, there is nothing to show that all the other subscribers were 
 notified, and there has been no question as to the sufficiency of the 
 mode in which the withdrawal was made. See, in addition to the 
 cases above cited, Auburn Bolt and Nut Works v. Shultz, 143 Pa. St. 
 256; Muncy Traction Engine Co. v. Green, 143 Pa. St. 269; Gar- 
 rett v. Dillsbury and Mechanicsburg Railroad, 78 Pa. St. 465 ; Stras- 
 burg Railroad v. Echternacht, 21 Pa. St. 220. An offer of reward 
 made by public proclamation may be withdrawn in the same man- 
 ner, and the fact that a claimant of the reward was ignorant of 
 the withdrawal of the offer is immaterial. Shuey v. United States, 
 92 U. S. 73. And if not withdrawn by any express notice, a with- 
 drawal is implied after the lapse of a considerable time. Loring v. 
 Boston, 7 Met. 409. 
 
 In the present case, it seems to us that Henry Tower was a proper 
 person to whom a withdrawing subscriber might give notice of his 
 withdrawal. So far as appears in the bill of exceptions, there was 
 no other officer or person who so well or fully represented the sub- 
 scribers at large. He was at the head of the principal committee, 
 and in addition to this he had been selected and chosen as president, 
 and he was acting in behalf of the subscribers. There is nothing to 
 show that the chairman of the meetings had any duties except merely 
 as presiding officer at the meetings. Taking the case as it stood, 
 and in view of the requests for instructions, which implied that the 
 notice of withdrawal would of course be given to some officer, and of 
 the fact that nobody else was suggested as the proper officer or per- 
 son to receive the notice, the ruling of the court was right, that notice 
 to him was sufficient ; and the fact that the association did not come 
 into legal existence as a fully-formed corporation till a later date 
 does not render the notice to him insufficient, under the circum- 
 stances. 
 
 The plaintiff requested a ruling that the defendants could not 
 withdraw after the associates had taken action on the strength of their 
 
 31 WIL. CASES.
 
 482 PENINSULAR R. CO. V. DUNCAN. IO8 
 
 subscription. This was rightly refused, as was held in the former 
 decision. 
 
 The plaintiff also asked an instruction that the defendants' offer 
 was not conditional, and could not be made so by oral testimony. 
 This instruction was given. 
 
 The evidence to which the plaintiff objected was properly admit- 
 ted for the purpose for which it was received, and the instructions to 
 the jury carefully limited it to that purpose, and confined the atten- 
 tion of the jury to the single point of the defendants' withdrawal of 
 their subscription. 
 
 Exceptions overruled. 
 
 Note. See the following cases: 1857, Lake Ontario, etc., R. Co. v. Mason, 
 16 N. Y. 451, 463; 1868, Rose v. San Antonio, etc., R. Co., 3t Texas 49; 1875, 
 Garrett v. Dillsburg, etc., R. Co., 78 Pa. St. 465; 1877, Gaff v. Flesher, 33 
 O. S. 107; 1885, Tilsonburg, etc., Co. v. Goodrich, 8-Ont. (Q. B. D.) 565; 1885; 
 Cook v. Chittenden, 25 Fed. Rep. 544; 1885, Gulf, etc., Ry. v. Neely, 64 
 Texas 344; 1888, Muncy Traction Eng. Co. v. De La Green, 143 Pa. St. 269; 
 1891, International F. Ass'n v Walker, 88 Mich. 62; 1893, White v. Kahn, 103 
 Ala. 308 ; 1893, Greenbrier Indus. Ex. v. Rodes, 37 W. Va. 738 ; 1893, Lewis, 
 etc., v. Hillsboro, etc., Co., 23 S. W. (Texas) 338; 1894, Nehema Coal Co. v. 
 Settle, 54 Kan. 424; 1895, Halifax C. Co. v. Moir, 28 N. S. 45; 1896, Providence, 
 etc., Co. v. Kent, etc., Co. ,35 Atl. (R. I.) 152; 1896, Re Hannan's, etc., Co., 74 
 L. T. Rep. 550; 1898, Common v. Matthews' Rap. Ind. Quebec, 8 B. R. 138. 
 But see, 1896, Phil. & Del. Co. Ry. v. Conway, 177 Pa. St. 364. See, also, 
 Beach, 516-517; Clark, 93-97; Elliott, 344, 345a; Morawetz, 49-51; 
 Taylor, 513-515; I Thompson, 1162-1163, VII Thompson, 8606. 
 
 Sec. 108. Same. 
 
 Offer until acted upon in accordance with its provisions, 
 then becomes binding. 
 
 THE PENINSULAR RAILWAY COMPANY v. DUNCAN. 1 
 
 1873. IN THE SUPREME COURT OF MICHIGAN. 28 Mich. Reports 
 
 130-152. 
 
 Error to Kalamazoo Circuit. 
 
 COOLEY, J. This case presents the question whether one who be- 
 comes one of the original associates for the formation of a railway 
 company, and signs a subscription agreeing to take a certain number 
 of shares of the capital stock of the proposed company, and to pay 
 therefor, "at such times and in such sums as the same shall be as- 
 sessed, demanded and required to be paid by the directors of the said 
 company," but who afterward fails for any reason to sign the articles 
 of incorporation, or to subscribe for stock on the commissioners' books, 
 can be held liable upon his preliminary subscription, after the com- 
 
 1 Part of opinion omitted, also all of dissenting opinion of Campbell, J.
 
 108 AGKKKMKNTS SUBSCRIBING TO STOCK. 483 
 
 pany has been formed and assessments been made and payment de- 
 manded. 
 
 The question arises upon the first section of the act for incorpora- 
 tion of railroad companies, approved February 12, 1855, as amended 
 in 1867. Laws of 1867, vol. i, p. 90. The plaintiffs insist that the 
 signers of the preliminary subscription, whether they afterward sign 
 the articles or not, if the corporation is duly formed, have the same 
 absolute right to stock therein that those have who execute the articles, 
 or to whom stock is awarded on subscriptions upon the commission- 
 ers' books ; and that having a right to the stock, they are under a 
 corresponding obligation to pay for it. On the other hand, the posi- 
 tion of the defendants is that the preliminary subscription, though 
 possibly a convenient step in the organization of a corporation, is by 
 no means indispensable, but that the corporation originates with the 
 articles of association, and that no one who previously had contem- 
 plated becoming a member, however strongly or in whatever form of 
 words he may have expressed his intention to that effect, is bound by 
 that expression, if, when the articles are to be signed, he declines to 
 unite in them, or for any reason fails to do so, and thereby, expressly 
 or by implication, elects not to become a member. Up to that time, 
 it is insisted everything is provisional and inchoate ; nobody is bound 
 or can be bound without further voluntary action of his own. 
 
 A consideration of the question thus presented is peculiarly embar- 
 rassing, in consequence of the totally different views which have been 
 taken of it by able jurists in other states where similar statutes exist. 
 We have examined the reported cases with care, and while we find 
 many of the opinions able, and in the main well reasoned, yet as it is 
 impossible to reconcile them, and none of them follows precisely the 
 train of reasoning through which we have been led to our own conclu- 
 sion, we have not deemed it advisable to review the cases in this opin- 
 ion, but shall proceed, with such brevity as the case will admit, to 
 present our own views. 
 
 It may be quite true, as is insisted on the part of the defense, that 
 a preliminary subscription is not an indispensable requisite in the 
 formation of a corporation under the general railroad law. If the 
 requisite number of persons execute the proper articles, naming 
 therein their directors, and attach thereto the affidavit required by the 
 statute, verifying the fact that they are subscribers for the requisite 
 amount of stock, and have paid to the directors five percentum 
 thereon, it is difficult to perceive any ground upon which it could be 
 plausibly contended that the corporation was not duly organized, or 
 to suggest any important function that the preliminary subscription 
 could have performed for such subscribers, and w r hich in the p?.r- 
 ticular case has not been performed without it. Nevertheless, a vi-ry 
 cursory examination of the statute must convince any one that such a 
 subscription, whether indispensable or not, is contemplated as a pro- 
 ceeding which will generally, at least, take place. This is evident 
 from the expressions employed in the statute in conferring authority 
 to organize. The persons who may incorporate themselves are "any
 
 484 PENINSULAR R. CO. V. DUNCAN. IO8 
 
 number of persons not less than twenty-five, being subscribers to the 
 stock of any contemplated railroad." They are allowed to do so "when 
 stock to the amount of $1,000 for every mile of said road so in- 
 tended to be built" "shall be in good faith subscribed, and five per 
 cent, paid thereon." There can not be subscriptions to the stock un- 
 til something is in writing for the subscribers to sign. The statute 
 gives no form for such a subscription ; it indicates no machinery by 
 means of which it is to be originated or signatures obtained. Every- 
 thing is left to the voluntary action of the promoters of the enterprise, 
 and whatever form of writing is satisfactory to them, and sufficiently 
 indicates the general purpose sought to be accomplished, and the 
 share the several subscribers are to take in it, would undoubtedly be 
 sufficient. 
 
 By any such voluntary subscription to take stock, however, we 
 should naturally understand some mutual agreement by which the 
 promoters severally agree to take and pay for certain shares in the 
 proposed corporation ; something, in short, like or similar to the 
 agreement which was actually entered into in the present case. We 
 do not understand that there would be any difficulty at the common 
 law in enforcing the promises contained in an agreement of this 
 general nature against the several promisors, where the object to be 
 accomplished ivas lawful, where a beneficial purpose was in view, 
 and where it was possible to make to the several promisors the return 
 which their subscriptions called for. In such cases the promises are 
 mutual ; acts are done and moneys expended in reliance upon the sub- 
 scriptions, and the moment the promises are accepted by the organ- 
 ization and action of the corporation to which they are provisionally 
 made, there can generally be no difficulty in their enforcement if the 
 corporation then has it in its power to give the stock subscribed for, 
 and offers to do so. In such a subscription thus accepted there would 
 be all the requisites of a valid contract, proper parties and a promise 
 made upon a legal and valuable considei'ation. 
 
 In this case, however, the question involved is not one to be settled 
 entirely by the rules of the common law, but there is involved a ques- 
 tion of statutory construction. It is argued by the defense that the 
 terms of the statute are such as to make any preliminary subscription 
 that may have been entered into entirely immaterial and nugatory the 
 moment the articles are executed, and that promises therein contained 
 are incapable of enforcement, because under the statute the subscribers 
 are not entitled to stock in the corporation, and, consequently, do not 
 receive a consideration for their promises. This construction arises 
 principally upon one clause of the first section of the general railroad 
 act, which, after providing what the articles of association shall con- 
 tain, and for their being subscribed and recorded, declares that "there- 
 upon the persons who have subscribed, and all persons who shall from 
 time to time become stockholders in such company, shall be a body 
 corporate," etc. The argument is that by the express terms of this 
 statute only the subscribers to the articles and those who subsequently 
 become stockholders in the manner provided by law that is to say r
 
 IO8 AGREEMENTS SUBSCRIBING TO STOCK. 485 
 
 by subscribing for stock on the commissioners' books can be stock- 
 holders or entitled to stock, and, consequently, the subscribers to the 
 preliminary agreement who do not sign the articles are in terms ex- 
 cluded. 
 
 It is possible that a strict and literal interpretation of the statute 
 would require this construction to be put upon it ; but it does not nec- 
 essarily follow that such a construction would be proper or even ad- 
 missible. What we should seek here is the intention of the legisla- 
 ture and not the testing by nice rules of art the language employed. 
 It may possibly appear, as is too often the case, that the legislation 
 has been carelessly phrased, and will be perverted if tested by nice 
 rules. There are two very strong reasons why the statute should not 
 be so construed as to make the articles nullify the preliminary sub- 
 scription if any other construction is admissible. The first is that it 
 nullifies the mutual promises of the parties made for a beneficial 
 object, and which, on grounds of public policy as well as mutual good 
 faith, ought to be sustained and enforced, unless abandoned by com- 
 mon consent. The second is that, by rendering the preliminary sub- 
 scription which the statute provides for, if it does not make necessary, 
 a perfectly useless proceeding, it in effect, as has been well said in a 
 leading case supporting this construction Troy and Boston R. R. 
 Co. v. Tibbits, 1 8 Barb. 304305, imputes folly to the legislature; 
 an imputation we ought to be very slow to make, and never except 
 upon the most imperative reasons. 
 
 Our own view, after a careful examination of the statute, is that the 
 construction which excludes the subscribers to the preliminary sub- 
 scription from corporate membership, is rather forced than otherwise. 
 The statute does not say that the persons who have sub scribed the ar- 
 ticles of association, and those who shall, from time to time, become 
 stockholders, shall be the corporation, but those "who have sub- 
 scribed." Subscribed what? The very first words of the section pro- 
 vides that the subscribers to the stock of a contemplated road may in- 
 corporate themselves by complying with certain conditions. The 
 subscribers here intended are unquestionably the subscribers to the 
 preliminary agreement; and these subscribers, to use the words of the 
 statute, when the necessary amotint of stock is in good faith subscribed 
 by them, are allowed to organize. These persons, then, are spoken 
 of as persons who have subscribed, and their subscription contem- 
 plates that they are to have stock in the proposed corporation. The 
 parties to the articles also subscribe them ; their subscription is pro- 
 vided for by the same section, and theirs also contemplates that they are 
 to have stock in the corporation. It is after these different subscrip- 
 tions for stock are thus spoken of and provided for that the statute 
 proceeds to say that those who have subscribed shall be corporators. 
 What warrant have we for saying that one class of subscribers was 
 intended and not the other? 
 
 The truth is, both classes were intended, because in contemplation 
 of the statute the two were to be identical. The statute does not sup- 
 pose there will be subscribers to the preliminary agreement who do
 
 486 PENINSULAR R. CO. V. DUNCAN. IO8 
 
 not sign the articles. It provides that after the requisite subscriptions 
 are obtained, the subscribers may select directors, "and thereupon 
 they shall severally subscribe articles of association." They are ex- 
 pected to subscribe the articles, and not merely that portion who may 
 then, on considering the question as a new one, decide to take inter- 
 ests in the company. 
 
 It is not assumed that there will be any doubt or question that all 
 who have mutually pledged themselves to each other to form a corpo- 
 ration for the object proposed will unite in the necessary steps for 
 that purpose, and it does not therefore distinguish between the sub- 
 scribers to the two papers because it supposes no distinction will 
 exist. 
 
 We have, nevertheless, to deal with the case where a subscriber to 
 the one has neglected or refused to sign the other; and the question 
 is, whether such neglect or refusal precludes the attaching of any legal 
 liability. We have the case of a subscription provided for by law, 
 designed to accomplish an important beneficial purpose, subscribed 
 by several parties in reliance upon their mutual promises, but v\hich 
 one pei'haps elects to annul by not taking a certain further step which 
 the statute contemplates he will take. The corporation to which the 
 subscriber's promise was provisionally made has been called into being 
 and has accepted his promise, and now offers to perform its part by 
 giving the stock subscribed for if it has the power to do so. And the 
 question is whether, in this exceptional case not provided for or con- 
 templated by the statute, the subscriber may treat his preliminary 
 promise as of no force. 
 
 A preliminary question will perhaps be, whether it possessed any 
 force \vhatever, or, on the other hand, was to be looked upon as mere 
 nudum pactum, without either parties or consideration, before the 
 articles were signed. The necessary conclusion from the defendant's 
 premises must be, as we think, that it was so. We can not conclude, 
 however, that such preliminary promises, made in accordance -with 
 the law, as a step in the accomplishment of a public enterprise, can 
 be regarded as entirely without legal significance. If a subscriber 
 pays his five per cent, upon his subscription, and it is received and 
 retained by the custodian agreed upon by the associates, we think he 
 has acquired some rights by such subscription and payment. He 
 has acqitired the important right to take part in the organization of 
 the corporation, in the choice of directors, in the determination of 
 the route, and in shaping the constitution of the company. These 
 rights are often of high value, and might even be more so in a pe- 
 cuniary point of view than the stock subscribed for is ever expected 
 to be. It can not be said that a subscription and payment, which se- 
 cure these important privileges, are of no force, nor ought it to be 
 the case that the party making them may disaffirm his action at his 
 own mere pleasure after other parties, more observant of their own 
 stipulations, have taken further action which is unquestionably bind- 
 ing upon them, in reliance upon his promised assistance. 
 
 In the present case it does not become necessary to discuss the
 
 108 AGREEMENTS SUBSCRIBING TO STOCK. 487 
 
 question whether a party who expressly revokes his subscription be- 
 fore the corporation is formed can be compelled to pay it afterward. 
 Such a case is not, by the record, placed before us. Undoubtedly if 
 the corporation is never formed, the subscription becomes a nullity. 
 No promisee in that case ever comes into existence. And if the sub- 
 scribers are only tiventy-Jive in number, any one of them may defeat 
 the enterprise, by refusing to join in the articles, because t-wenty-jlve 
 are made necessary by the statute. It may, under some circum- 
 stances, be bad faith in a subscriber to do this, but he would unques- 
 tionably have the power. It would be equally true if a larger num- 
 ber of subscribers should subscribe only the requisite amount of stock, 
 and any one might defeat an organization by refusing to sign the ar- 
 ticles unless a further subscription could be obtained from some other 
 source. In these cases the subscriber is discharged, not for reasons 
 personal to himself, but because on grounds of public policy corpo- 
 rate privileges are -withheld from an association -which does not fur- 
 nish the required evidence of earnestness and ability to carry on the 
 undertaking. 
 
 The case at bar is neither of these. Here the corporation has not 
 failed of organization, but a subscriber has failed, for some unex- 
 plained reason, to sign the articles with the others. We might sug- 
 gest a great many possible reasons for the failure, some of which, 
 unquestionably, would discharge him from all moral, as well as legal, 
 obligation on his subscription. We might suppose, for instance, that 
 the other subscribers considered him an undesirable associate, and for 
 that reason refused to allow him to take part in organizing, while willing 
 enough to receive his money afterwards. As already said, the stock pro- 
 posed to be given by the corporation is not the sole consideration for 
 his promise to pay, but he is entitled to the valuable privilege of a voice 
 in determining the important questions to be settled by the articles, 
 and if denied that by his associates he is absolved from all responsi- 
 bility. But this defendant, for aught we know, may have had and 
 enjoyed that privilege, and then failed to subscribe the articles for the 
 express purpose of avoiding responsibility, or, on the other hand, be- 
 cause when sufficient subscriptions were obtained to perfect the or- 
 ganization it was deemed necessary or important to obtain further 
 signatures. But as we do not know the reason, it is idle to indulge 
 in suppositions. It is sufficient that the defense plant themselves on 
 the broad ground that no original subscriber who fails to sign the 
 articles can be bound by his subscription. 
 
 As it has already been seen that the preliminary subscription is in 
 proper form for obligatory force as a mutual promise, and is provided 
 for by the statute, if one who signs it must also sign the articles of asso- 
 ciation in order to render himself liable, the reasons for requiring this 
 must be either: First, reasons personal to himself, and which render 
 it unjust or inequitable that he should be held in the absence of any 
 renewal of his promise by an execution of the articles ; or second* 
 reasons resting on considerations of public policy, and which, inde- 
 pendent of any questions of justice or equity as between the individual
 
 488 PENINSULAR R. CO. V. DUNCAN. IO8 
 
 and his associates, require all subscriptions to the stock at the time of 
 the organization to be represented by the signatures to the articles. 
 
 There can be no reasons of the first class, if the subscriber has par- 
 ticipated in the organization, or has had the opportunity to do so. In 
 such case, with the right to the stock, the subscriber has had, or might, 
 at his option, have had everything promised him by his associates or 
 by the corporation as the consideration for his promise to pay, and 
 good faith to his associates whose action his promise maybe supposed 
 to have influenced more or less, and who keep on their part the prom- 
 ise mutually made, requires that he should keep it also. It may 
 safely be assumed that they incur expenses for preliminary surveys, 
 procuring subscriptions, pledges of rights of way, and such other mat- 
 ters as are necessary to enable them intelligently and properly to set- 
 tle the questions-which are to be determined by the articles, and if he 
 allows these to be incurred while his promise stands unrevoked and in 
 reliance upon it, the moral obligation on his part to fulfill his prom- 
 ise is very strong, and in the absence of any unfair dealing on the part 
 of his associates ought to be regarded by him as imperative. 
 
 And we can not imagine any reasons of public policy for requiring 
 all the preliminary subscribers to sign the articles, or for relieving 
 from responsibility all who do not sign. As the articles constitute a 
 more formal document than the preliminary subscription usually does, 
 and set forth the definite particulars of the enterprise, it will be more 
 satisfactory and conclusive of the precise work the subscribers propose 
 to accomplish, and be less likely to leave questions open to dispute 
 between the individual associates and the organization. The proba- 
 bility, however, that the preliminary subscription will be so vague 
 and uncertain as to raise serious questions as to the actual intent can 
 be no greater than the probability of like questions in innumerable 
 contracts which are being made constantly, and in which it has never 
 been thought even wise to require by law the observance of more for- 
 mality. * * * 
 
 We suppose the statute to require the articles to be signed by at 
 least twenty-five associates, representing subscriptions to the amount 
 of a thousand dollars a mile, upon which five per centum shall have 
 been paid in, in order that mere bubble enterprises shall not be 
 allowed the apparent sanction of a legal organization, and be afforded 
 the opportunity, not only to embarrass and perhaps preclude more 
 substantial projects, but also to have facilities for annoying and per- 
 haps defrauding the public by exercising the right of eminent domain, 
 and by contracting debts in apparent execution of improvements which 
 the means at command give no assurance of being carried out. The 
 state requires this evidence of good faith and ability in the associates 
 before it will endow their association with legal entity; but when 
 these appear to the extent required, the demands of public policy in 
 this regard are satisfied, and we do not see that the state has any con- 
 cern in the question whether other associates representing more aid 
 subscribe the articles or not. If the state is satisfied with subscrip- 
 tions to a certain amount, but the projectors have in fact obtained
 
 108 AGREEMENTS SUBSCRIBING TO STOCK. 489 
 
 more, no very good reason can be suggested why the state should im- 
 pose, as a penalty upon the corporation, that it shall not enforce such 
 additional subscriptions unless the names are obtained to a certain 
 paper required for the purpose of giving public evidence of certain 
 facts already proved by previous subscriptions to the full extent re- 
 quired. And we are therefore forced to the conclusion that when 
 such subscriptions are obtained to the articles as are necessary for the 
 purposes of incorporation, if there are further subscribers to the pre- 
 liminary subscription, who, for reasons of convenience to themselves, 
 or because it was supposed to be unnecessary, or for any other reason 
 than a previous withdrawal from the enterprise, shall neglect to sign 
 the articles, such previous subscribers can not, on any ground of pub- 
 lic policy, be held discharged from any obligation, either moral or 
 legal, to fulfill their promises. 
 
 So far we have not discussed the question whether there can be any 
 embarrassment in counting such preliminary subscribers among the 
 stockholders. We do not see why there need be. The subscriptions, 
 together with the articles of association, will pass to the hands of the 
 proper officers, and they will furnish all necessary information to the 
 commissioners, who are to receive further subscriptions for the bal- 
 ance of the capital stock, and apportion it if there shall be any excess. 
 If we are warranted in so construing the statute as to include in the 
 subscribers who are to be counted as corporators when the commis- 
 sioners begin their labors, those who have subscribed preliminary sub- 
 scriptions, as well as the subscribers to the articles, then the commis- 
 sioners have only to receive the subscriptions for, and apportion such 
 portion of the stock as is not represented by these two classes of sub- 
 scribers. From the best consideration we have been able to give the 
 statute, we think such a construction perfectly legitimate. Any other 
 would make the preliminary subscription not what on its face it seems 
 to be, a provisional offer for the acceptance of the corporation when 
 formed, but only a provisional offer to make an offer if the subscriber 
 at a subsequent time shall elect to do so. We are unwilling to conclude 
 that the legislature, in pointing out the steps in the organization of a 
 corporation, has indicated among them a proceeding so frivolous and 
 filtile. We think the subscribers, who, with those who subsequently 
 associate themselves with them, are to be the corporators, are the 
 subscribers to the original subscription; and though it is perfectly 
 true that the statute supposes such subscribers will sign the articles 
 also, it neither takes away their rights, nor absolves them from obli- 
 gations for a failure to observe this formality, but if the corporation 
 is duly formed, on general principles applicable to such undertak- 
 ings as the preliminary subscribers have entered into, they are liable 
 for the fulfillment thereof in the absence of any pro-vision of the stat- 
 ute -which expressly or by necessary implication must have the effect 
 to release them' therefrom. And our reading of the statute discloses 
 no such provision. 
 
 In our discussion of the case so far we assume that the subscriber 
 paid his five per cent, on the subscription. This, or something equiva-
 
 49O PENINSULAR R. CO. V. DUNCAN. IO8 
 
 lent, would be necessary to entitle him to participate in the organiza- 
 tion, and if he fails to obtain that privilege the subscription would 
 probably be ineffectual. He would not be one of the associates in 
 in such a case. But if the requisite amount is paid by the other sub- 
 scribers, we see no reason to doubt that 'credit might be given to him 
 for this first payment, and he be admitted to all the privileges of the 
 rest. What circumstances would be equivalent to the giving of credit 
 by implication, in the absence of any express understanding to that 
 effect, it would be out of place to discuss here. That there might be 
 such circumstances is undoubted. The present record assumes that 
 the intestate had become one of the original associates, and if any 
 question of fact is to be raised upon that point, it must be presented 
 upon the proper issue. 
 
 The declaration in this case sets out the original subscription, avers 
 that defendant signed the same and agreed to take $1,000 of the stock 
 of the proposed corporation, but it does not expressly say that he 
 made any payment. It does aver, however, that the defendant, in 
 consideration of his subscription, "and in consideration that stock to 
 the amount of $1,000 for every mile of said Peninsular Railway Ex- 
 tension Company had been subscribed for and taken in good faith, 
 and Jive per cent, paid thereon as required by said act, in considera- 
 tion that said Peninsular Railway Extension Company was, to wit, 
 on the third day of January, 1868, duly organized and became a body 
 politic and corporate under the laws of the said state of Michigan, he, 
 the said Delamore Duncan, then and there promised," etc. We are 
 inclined to think that, under a demurrer such as has been interposed 
 in this case, it must be assumed that the defendant had done whatever 
 was necessary to perfect his subscription, and entitle him to partici- 
 pate as one of his associates in organizing, and that his failure to take 
 part in that proceeding was not because of being wrongfully excluded. 
 The allegation that five per cent, had been paid on the subscriptions 
 may fairly be applied distributively, and the allegation that the cor- 
 poration was duly organized would imply participation or the oppor- 
 tunity to participate in all the associates. And, though these facts 
 are set forth by way of the recital merely, the declaration in this par- 
 ticular would be good on general demurrer at least, and also oa a 
 special demurrer aimed only at other defects. * * * 
 
 Our conclusion is that the demurrer ought to have been overruled. 
 The judgment must, therefore, be reversed, with costs, and the cause 
 remanded. And in view of the conclusions reached, it would be 
 proper that the parties respectively have leave to file new pleadings. 
 
 GRAVES, J., and CHRISTAINCY, Ch. J., concurred; CAMBELL, J., 
 dissents. 
 
 Note. See cases, supra, 99, p. 466.
 
 109 AGREEMENTS SUBSCRIBING TO STOCK. 491 
 
 Sec. 109. Same. 
 
 (<:) Binding contract from time of making. 
 
 THE TONICA AND PETERSBURG RAILROAD COMPANY v. Mc- 
 
 NEELY. 
 
 1859. IN THE SUPREME COURT OF ILLINOIS. 21 111. Rep. 7172. 
 
 In 1856 a voluntary association, in the name and style of the plaint- 
 iffs, was formed for the construction of a railroad from Tonica to 
 Jacksonville, in this state, contemplating an application to the next 
 session of the legislature for an act of incorporation. Said associa- 
 tion was organized by the election of officers, and subscriptions of 
 stock, in shares of one hundred dollars each, were obtained in that 
 year for a large amount. The intestate subscribed two shares and 
 died some days before the. incorporation of the plaintiffs. By consent 
 of the parties this case was tried by the court, Harriott, judge, and the 
 plaintiffs proved on the trial the organization of their company, calls 
 by the directors for the whole of the stock, and notices to the stock- 
 holders by advertisements in two newspapers. 
 
 The court rendered judgment for the defendant below. 
 
 CATON, C. J. A stibscription made in contemplation of a char- 
 ter to construct a railroad or to accomplish any other legitimate object 
 is a valid contract between the parties, and as stick may be enforced 
 the same as any other contract. The object of the contract is lawful 
 and is founded on a good consideration, which is the mutual promise 
 expressed in the contract. Upon the general principles of law by 
 which all contracts are governed, we are at a loss to see what objec- 
 tions are to be urged to the enforcement of such a contract, which 
 could not be urged to any other contract for the payment of a speci- 
 fied sum of money. There is no pretense in this case that the objects 
 contemplated by the contract are not provided for by the charter, or that 
 the charter which was obtained, or the organization or action under it 
 were not in strict pursuance of the contract. No such defense has 
 been insisted upon. But it is simply claimed that the contract was 
 void a nudum pactum. We are of opinion that where the objects of 
 a contract are lawful, and it is founded upon a good consideration, and 
 is entered into by parties capable of contracting, it creates a legal ob- 
 ligation, which may be enforced according to its terms. . We know 
 of no law against this proposition, but are very familiar with a great 
 deal for its support. 
 
 The judgment must be reversed and the cause remanded. 
 
 Judgment reversed. 
 
 Note,. See, 1816, Kidwelly Canal Co. v. Raby, 2 Price (Eng. Excheq.) Rep., 
 p. 93, and cases cited, supra, 99, p. 455.
 
 492 MINNEAPOLIS THRESHING MACH. CO. V. DAVIS. IIO 
 
 Sec. 110. Same. 
 
 (aT) An offer to the corporation, and a binding contract between 
 the parties. 
 
 MINNEAPOLIS THRESHING MACHINE CO. v. DAVIS. 
 
 1889. IN THE SUPREME COURT OF MINNESOTA. 40 Minn. Re- 
 ports, 110-117, 12 Am. St. Rep. 701 , 3 L. R. A. 796, 
 26 Am. & Eng. Corp. Cas. 61 , 41 N. W. Rep. 1026. 
 
 Plaintiff brought this action in the district court for Hennepin 
 county, for installments alleged to be due from defendant as a sub- 
 scriber to its capital stock. A jury was waived, and the action tried by 
 Lorchren, J., who held that the defendant never became a subscriber, 
 'and ordered judgment in his favor. A new trial was refused, and the 
 plaintiff appealed. The facts on which the question of the defend- 
 ant's liability turned are stated in the opinfon, the material parts of 
 the subscription paper, exhibits A and B, therein mentioned, being as 
 follows: 
 
 "Memorandum of agreement made and entered into between the 
 undersigned, citizens of Minneapolis, Minn., each for himself, par- 
 ties of the first part, and John S. McDonald, of Fond du Lac, Wis., 
 party of the second part. The party of the first part, in consideration 
 of the party of the second part moving his plant and machinery to the 
 city of Minneapolis, to enter into the manufacture of threshing ma- 
 chines, horse-powers and engines, and for the purpose of forming a 
 joint-stock company to engage in the manufacture of the aforesaid 
 threshers and other machinery, * * * with a capital stock of 
 $250,000, the aforesaid citizens of Minneapolis, parties of the first 
 part, hereby subscribe to and severally agree to take and pay for, in 
 cash, the amount of capital stock set opposite their respective names 
 in a company to be organized as aforesaid for the purposes aforesaid. 
 And the said John S. McDonald, hereby agrees, that whenever the 
 amount subscribed, exclusive of his own, shall reach the sum of 
 $190,000, he will subscribe to said capital stock the further sum of 
 .$60,000, payable in the manner specified in a certain proposition 
 signed by him and attached hereto. The conditions upon which said 
 subscriptions are made are as follows, to wit: First. No subscrip- 
 tion is to be binding until the sum of $250,000 is subscribed, includ- 
 ing the subscription of John S. McDonald. Second. The $190,000 
 subscribed by the citizens of Minneapolis to the capital stock afore- 
 said it is understood and agreed is to be paid in payments as follows, 
 as soon as the company is organized. * * * The undersigned 
 subscribe the amounts set opposite their respective names on condition 
 that all the works of the company shall be located at Junction City, 
 Hennepin county, Minn. John A. Davis, $5,000," (and others). 
 "Proposition made by John S. McDonald referred to in the an- 
 nexed memorandum : The said John S. McDonald is to subscribe
 
 110 AGREEMENTS SUBSCRIBING TO STOCK. 493 
 
 for $60,000 of the capital stock as follows. * * * John S. Mc- 
 Donald." 
 
 MITCHELL, J. This was an action to recover installments due on 
 subscriptions to stock of the plaintiff. The facts fully appear from 
 the findings of the court, in connection with exhibits A and B at- 
 tached to the complaint. Those material for present purposes are 
 that, a scheme having been started to organize a manufacturing cor- 
 poration with $250,000 capital, whose works snould be located at 
 Junction City, near Minneapolis, and one McDonald having proposed 
 that if the citizens of Minneapolis would subscribe $190,000 to the 
 capital stock, he would subscribe the remaining $60,000, one Janney, 
 a promoter, but not a subscriber to the stock of the proposed corpo- 
 ration, acting as a voluntary solicitor, having with him the subscrip- 
 tion paper (exhibits A and B), about April i, 1887, proceeded to 
 canvass for subscriptions to the stock of the proposed corporation, on 
 the terms and conditions embodied in the paper. He first applied to 
 defendant, who subscribed $5,000 of stock. Afterwards, and about 
 the same date, other citizens respectively subscribed to the stock, on 
 the same paper, to the aggregate amount, including defendant's sub- 
 scription, of $190.000, of which over $65,000 has been paid in to 
 plaintiff. Thereupon McDonald, in accordance with his proposition, 
 subscribed the remaining $60,000, which he has paid up in full. All 
 the conditions expressed in the written subscriptions (exhibit A) having 
 been fully performed and complied with, the proposed corporation 
 was afterwards, about April 25, 1887, organized, and these subscrip- 
 tions to its stolck delivered over to it. The corporation, acting in 
 good faith upon such subscriptions, including that of defendant, ex- 
 pended large sums of money in locating and constructing its works, 
 and entered into large contracts, and incurred liabilities to the amount 
 of over $75,000. During all this time, the corporation had no notice 
 or knowledge of any condition being attached to defendant's subscrip- 
 tion other than those expressed in the subscription paper itself. 
 Neither is it found or claimed that any of the other subscribers to the 
 stock had any such notice or knowledge. Defendant w r as not present 
 at the organization of the corporation, and never attended or took part 
 in any of its meetings, and had no notice or knowledge that the sub- 
 scription paper had been transferred or delivered over to the plaintiff, 
 or that the plaintiff relied on it, until about November, 1887, -just 
 prior to the commencement of this action. 
 
 Upon the trial the defendant was permitted, against plaintiff's 
 objection and exception, to testify that he signed or subscribed to the 
 stock only upon the express oral condition and agreement then had 
 between him and Janney, that the latter should retain in his possession 
 said agreement with his name signed thereto, and not deliver it to 
 any one, or use it in any way, until certain four persons should sub- 
 scribe to the stock, each in the sum of $5,000; that Janney took the 
 agreement from defendant on that express condition and understand- 
 ing, and not otherwise ; that none of these four persons ever did sub- 
 scribe to the stock of the plaintiff, and that defendant never author-
 
 494 MINNEAPOLIS THRESHING MACH. CO. V. DAVIS. IIO 
 
 ized Janney or any one to deliver said agreement to any one except 
 upon the condition referred to. The court found the facts to be in 
 accordance with the testimony, and upon that ground found as a con- 
 clusion of law that defendant never became a subscriber to the plaint- 
 iff's stock. The competency of this evidence is the sole question in 
 this case. 
 
 Under the elementary rule of evidence that a written agreement can 
 not be varied or added to by parol, it is not competent for a sub- 
 scriber to stock to allege that he is but a conditional subscriber. Tbe 
 condition must be inserted in the writing to be effectual. This rule 
 applies with special force to a case like the present, where to allow 
 the defendant now to set up a secret parol arrangement by which he 
 may be released, while his fellow-subscribers continue to be bound, 
 would be a fraud, not only upon them, but upon the corporation 
 which had been organized on the faith of these subscriptions and upon 
 its creditors. The defendant, of course, does not attempt to contro- 
 vert so elementary a rule as the one suggested, but contends that the 
 effect of this evidence was not to vary or contradict the terms of the 
 writing, but to prove that there was never any delivery of it, and 
 hence that there never was any contract at all, delivery being pre- 
 requisite to the very existence of a contract. His claim is that the 
 subscription paper was given to and received by Janney merely as an 
 escrow, or as in the nature of an escrow, only to be delivered or used 
 upon the performance of certain conditions precedent, and that until 
 they were performed there could be no valid delivery. 
 
 In determining this question it becomes important rb consider the 
 nature of a subscription to the stock of a proposed corporation, and 
 the relation of the different parties to each other under the facts of this 
 case. A subscription by a number of persons to the stock of a cor- 
 poration to be thereafter formed by them has in law a double char- 
 acter : First. It is a contract between the subscribers themselves 
 to become stockholders without further act on their part, immediately 
 upon the formation of the corporation. As suck a contract it is 
 binding and irrevocable fro?n the date of the subscription {at least 
 in the absence of fraud or mistake}, unless canceled by consent of 
 all the subscribers before acceptance by the corporation. Second. 
 It is also in the nature of a continuing offer to the proposed corpo- 
 ratibn, which, upon acceptance by it after its formation, becomes as 
 to each subscriber a contract between him and the corporation, i 
 Mor. on Priv. Corp., 47, et seq.; Red Wing Hotel Company v. 
 Frederich, 26 Minn. 112, i N. W. Rep. 827. Janney, the promoter, 
 who solicited and obtained the subscriptions, occupied the position of 
 agent for the subscribers as a body, to hold the subscriptions until the 
 corporation was formed in accordance with the terms and conditions 
 expressed in the agreement and then turn it over to the company with- 
 out any further act of delivery on the part of the subscribers. The 
 corporation would then become the party to enforce the rights of the 
 whole body of subscribers. It follows then, that, considering the 
 subscription as a contract between the subscribers, a delivery to Janney
 
 I 10 AGREEMENTS SUBSCRIBING TO STOCK. 495 
 
 by a subscriber was a complete and valid delivery, so that his sub- 
 scription became eo instanti a binding contract. The case stands 
 precisely as a case where a contract is delivered by the obligor to the 
 obligee. It can not therefore be treated as a case where the writing 
 has been delivered to a third party in escrow. 
 
 The defendant, however, attempts to bring the case within the rule 
 of Westman v. Krumweide, 30 Minn. 313, 15 N. W. Rep. 225, in 
 which this court held that parol evidence was admissible to show that 
 a note delivered by the maker to the payee was not intended to be 
 operative as a contract from its delivery, but only'upon the happening 
 of some contingency, though not expressed by its terms; that is, that 
 the delivery was only in the nature of an escrow. . We so held upon 
 what seemed the great weight of authority, although the doctrine, even 
 tp the extent it was applied in that case, is a somewhat dangerous 
 one. The distinction between proving by parol that the delivery of a 
 contract was conditional, and that the contract itself contained a con- 
 dition not expressed in the writing, is one founded more on refinement 
 of logic than upon sound practical grounds. It endangers the salutary 
 rule that written contracts shall not be varied by parol. Said Earl, 
 J., in Pym v. Campbell, 6 El. & Bl. 370, in sustaining such a de- 
 fense: "I grant the risk that such a defense may be set up without 
 ground, and I agree that a jury should, therefore, look on such a de- 
 fense with suspicion." And in all the cases where such a defense has 
 been sustained, so far as we can discover, they have been cases strictly 
 between the original parties, and where no one has changed his situa- 
 tion in reliance upon the contract and in ignorance of the secret oral 
 condition attached to the delivery, and hence no question of equitable 
 estoppel arose. Many of these cases have been careful to expressly 
 limit the rule to such cases. Benton v. Martin, 52 N. Y. 570; Sweet 
 v. Stevens, 7 R. I. 375. 
 
 Conceding the rule of Westman v. Krumweide, supra, to its full 
 extent, there are certain well-recognized doctrines of the law of equit- 
 able estoppel which render it inapplicable to the facts of the present 
 case. This subscription agreement was not intended to be the sole 
 contract of defendant. It was designed to be also signed by other 
 parties, and from its very nature defendant must have known this. 
 Each succeeding subscriber executed it more or less upon the faith of 
 the subscriptions of others preceding it. The paper purports on its 
 face to be a completed contract, containing all the terms and condi- 
 tions which the subscribers intended it should. When this agreement 
 was presented to others for subscription, defendant had not only signed 
 it in this form, but he had also done what, under the facts, constituted, 
 to all outward appearances at least, a complete and valid delivery. 
 He had placed it in the proper channel according to the ordinary and 
 usual course of procedure for passing it over to the corporation when 
 organized, and clothed Jannev with all indicia of authority to hold 
 and use it for that purpose without any other or further act on his 
 part, untrammeled by any condition other than those expressed in the 
 writing. In reliance upon this, others have not only subscribed to the
 
 496 MINNEAPOLIS THRESHING MACH. <1tf. V. DAVIS. I IO 
 
 stock, but have since paid in a large share of it. The corporation 
 has been organized and engaged in business, expending large sums of 
 money and contracting large liabilities, all upon the strength of these 
 subscriptions to its stock, and in entire ignorance of this secret oral 
 condition which defendant now claims to have attached to the deliv- 
 ery. To permit defendant to relieve himself from liability on any 
 such ground, under this state of facts, would be a fraud on others who 
 have subscribed and paid for stock, upon the corporation which has 
 been organized and incurred liabilities in reliance upon the subscrip- 
 tions, and on creditors who have trusted it. The familiar principle 
 of equitable estoppel by conduct applies, viz. : Where a person, by 
 his words or conduct, willfully causes another to believe in the ex- 
 istence of a certain state of facts, and induces him to act on that belief 
 so as to alter his own previous condition, he is estopped from denying 
 the truth of such facts to the prejudice of the other. 
 
 We have examined all the numerous cases cited by the defendants* 
 counsel, and fail to find one which, in our judgment, is analogous in 
 its facts, or the law of which will cover the present case. The two 
 which at first sight might seem most strongly in his favor, are Beloit 
 and Madison R. Co. v. Palmer, 19 Wis. 574, and Ottawa, etc., R. Co. v. 
 Hall, i Bradw. (111. App.) 612. But an examination of these cases will 
 show that in neither did or could any question of estoppel arise, and in 
 both the court held that the person to whom the instrument was deliv- 
 ered after signature was a stranger to it, so that it was strictly a deliv- 
 ery in escrow to a third party. Cases are cited where a surety signed a 
 bond or non-negotiable note, and delivered it to the principal obligor, 
 upon condition that it should not be delivered to the obligee until 
 some other person signed it, and where, without such signature, the 
 principal obligor delivered it to the obligee, and yet the courts held 
 that the surety was not liable, although the obligee had no notice of 
 the condition. Such cases seem usually to proceed upon the theory 
 that a delivery to the principal obligor under such circumstances is a 
 mere delivery in escrow to a stranger; the term "stranger," in the 
 law of escrows being used in opposition merely to the party to whom the 
 L-ontract runs. It may well be doubted whether in such cases, where the 
 instrument is complete on its face, the courts have not sometimes ig- 
 nored the law of equitable estoppel. No such defense would be al- 
 lowed in the case of negotiable paper, and it is not clear why the dis- 
 tinction should be drawn on that line. The doctrine of estoppel rests 
 upon totally different grounds, and operates independently of negotia- 
 bility, being founded upon principles of equity. But whether the 
 cases referred to be right or wrong, we do not see that they are in 
 point here. Our conclusion is that the court erred in admitting the 
 evidence objected to, and for that reason a new trial must be awarded. 
 
 Order reversed. 
 
 Note. See 1896 Phil. & D. Co. R. v. Conway, 177 Pa. St. 364. Also cita- 
 tions to 99, supra, p. 456.
 
 I 1 I AGREEMENTS SUBSCRIBING TO STOCK. 497 
 
 Sec. 111. (3) Subscription to agent or trustee, for proposed 
 corporation. 
 
 SAN JOAQUIN LAND AND WATER CO. v. WEST. 
 
 1892. IN THE SUPREME COURT OF CALIFORNIA. 94 Cal. Reports, 
 399-405 ; 29 Pac. Rep. 785. 
 
 Appeal from a judgment of the superior court of San Joaquin 
 county and from an order denying a new trial. 
 
 The following is a copy of the body of the agreement referred to in 
 the opinion of the court : 
 
 "We, the undersigned, hereby agree with each other, and the one 
 with the other, that a corporation shall be formed by us under the 
 name of 'San Joaquin Land and Water Company,' for the purpose of 
 procuring water rights on one or more of the rivers or streams running 
 through the counties of Calaveras, Tuolumne, Stanislaus and San Joa- 
 quin, in this state ; * * * that the capital stock of said corporation shall 
 be $1,000,000, divided into 10,000 shares of $100 per share; and we 
 hereby agree with each other, and one with the other, that we will take 
 the number of shares of the capital stock of said corporation which ap- 
 pears opposite our respective names hereunto subscribed, and will pay 
 20 per cent, of the par value of said shares so subscribed by us re- 
 spectively in five (5) days after the articles of said incorporation shall 
 have been filed in the office of the county clerk of said county of San 
 Joaquin, and will pay the same to F. M. West, at the Stockton Sav- 
 ings and Loan Society Bank at Stockton, Cal. We hereby constitute 
 said F. M. West as the agent to collect the amount which becomes due 
 as aforesaid. We further nominate, constitute and appoint L. U. Ship- 
 pee, J. L. Beecher, and George Gray, as our agents, and the agents of 
 the corporation so to be formed, to negotiate for the purchase of anyone 
 or more water rights, canals, reservoirs, aqueducts, or water-ways for 
 said corporation, and draw from said West any or all moneys that 
 may have been paid to him by us respectively, by virtue hereof, and 
 use said money for paying for same ; and any and all contracts which- 
 our said agents may make in said matter shall be binding upon said 
 corporation, and also upon us. Our said agents are further authorized 
 to employ engineers and other assistance, and have them survey routes 
 for such canals, and examine proper locations for dams, and do such 
 other service as may be, in their opinion, for our best interest and the 
 interest of said corporation to accomplish the object or purpose for 
 which the same is to be formed. 
 
 "Dated November 19, 1887." 
 
 Further facts are stated in the opinion of the court. 
 
 HARRISON, J. The controversy involved in this action arises out 
 of the construction to be given to the terms of an instrument executed 
 between the subscribers thereto for the incorporation of the plaintiff^ 
 
 . 32 WIL. CASES.
 
 498 SAN JOAQUIN LAND AND WATER CO. V. WEST. III 
 
 and preliminary to such incorporation. Th'e instrument itself was be- 
 fore this court in the case of West v. Crawford, 80 Cal. 19, 1 and there 
 set out at length. It was then held that West was authorized to col- 
 lect in his own name twenty per cent, of the amount that the parties 
 to that instrument had agreed to subscribe to the capital stock of the 
 plaintiff by reason of their express agreement therein to pay it to him. 
 After that decision the subscribers paid their twenty per cent, to West, 
 and at the commencement of this action he had in his hands of the 
 amount so collected by him $35,861.25, for the recovery of which 
 the plaintiff brought this action, as money had and received by him to 
 and for its use and benefit. After the commencement of the action 
 West, under the order of the court therefor, paid the money to the 
 clerk of the court, to be held subject to the order of the court, and 
 the appellants were substituted as defendants in his place, and answered 
 the complaint. Upon the trial of the issues, the court rendered judg- 
 ment in favor of the plaintiff, from which the defendants who were 
 substituted for West have appealed. 
 
 i. The agreement in question is of that character which is not un- 
 frequently made by the subscribers to a corporation prior to its actual 
 incorporation, and as preliminary thereto, its object being for their 
 mutual benefit and protection until the organization of the corporate 
 body, and also for the ultimate benefit of the corporation. Upon the 
 formation of the corporation such an agreement, with its advantages 
 and rights, inures to the benefit of the corporation, irrespective of any 
 agreement or want of agreement to that effect, and notwithstanding 
 it may contain special provisions for carrying its own terms into ex- 
 ecution. 
 
 By the express terms of this instrument, West was simply "the 
 agent to collect the amount" which should become due to the plaint- 
 iff by virtue of the subscription to its capital stock which the parties 
 to the instrument should make in pursuance of their agreement. By 
 the instrument itself, the subscribers agreed to "take," i. e., to sub- 
 scribe for, the number of shares set opposite their names respectively, 
 and "to pay twenty per cent, of the par value of said shares so sub- 
 scribed, and that they would pay 'the same' to West in five days after 
 the articles of incorporation were filed. The only money which the sub- 
 scribers agreed to pay to West was for the stock which they should sub- 
 scribe for to the plaintiff . and West was simply constituted the 'agent' 
 for the corporation, to collect the amount which should become 'due' 
 under their subscription, and after its collection to hold it for the use 
 and benefit of the corporation. By the same instrument, the sub- 
 scribers appointed the appellants, together with one Shippee, as their 
 ; agents,' and 'the agents of the corporation so to be formed,' with 
 authority 'to negotiate for the purchase' of property 'for said corpo- 
 ration,' and draw from West anv or all moneys paid to him, 'and use 
 said money for paying for same.' ' Giving to this language its rea- 
 sonable construction, it was an authority to these three individuals, as 
 agents of the subscribers prior to the organization of the corporation, 
 
 1 See infra, p. 500.
 
 I I I AGREEMENTS SUBSCRIBING TO STOCK. 499 
 
 to make negotiation for the purchase of property, and that upon the 
 formation of the corporation their agency for the subscribers should 
 cease, and thereafter they should act for the corporation. They could 
 not be the agents of the subscribers and of the corporation for the 
 same purpose at the same time, inasmuch as the interests of the sub- 
 scribers as individuals would be adverse to the interests of the corpo- 
 ration. The instrument does not provide that the appellants with 
 Shippee would at any time be the custodians of the money collected 
 by West. They were only to "draw/ from him such money as they 
 might need to use in paying for any property that they should pur- 
 chase for the corporation, and as it is not claimed that they have nego- 
 tiated for the purchase of any property for the corporation, there was 
 no occasion for them to draw any of the money from West, or for 
 him to deliver it to them. They, as well as West, were at all times 
 after the incorporation of the plaintiff only its "agents," and having 
 no interest coupled with their agency, it was competent for the plaint- 
 iff to remove them at any time, and appoint other agents in their 
 places, or itself assume the custody and disposition of the money. 
 The finding of the court, that, upon the incorporation of the plaintiff, 
 the appellants not only ceased to act as agents of the subscribers, but 
 that "before any of the moneys were paid to West they repudiated 
 such agency, and refused to act under said appointment, and wholly 
 abandoned the same," fully established the right of the plaintiff as 
 against their claim to the custody of the money. 
 
 The appellants, however, contend that the court below in its judg- 
 ment disregarded the construction given to the agreement by this court 
 in its opinion in the case of West v. Crawford, 80 Cal. 19, and that 
 it was then held that the plaintiff herein had no right to the custody 
 of the moneys which might be collected by We,st under that agree- 
 ment. While there is some language in that opinion that upholds 
 this contention, the opinion must be construed with reference to the 
 case before the court for its determination. That was merely whether 
 West could maintain an action for the recovery of the twenty per cent, 
 agreed to be paid by the subscribers, and his right to maintain such 
 action was upheld upon the ground that the subscribers had made an 
 express promise to pay it to him at a fixed date after the filing of the 
 articles of incorporation. The only parties before the court were 
 West and some of the subscribers, and the ultimate right to the cus- 
 tody of the money was not involved in the action. For the purpose 
 of meeting the argument of the appellants therein, that the money be- 
 longed to the corporation, and could be collected only by it in the 
 manner provided by statute for collecting assessments, it was stated 
 in the opinion that it did not appear from the agreement that the cor- 
 poration would ever be entitled to receive the money. It was not in- 
 tended thereby to preclude the corporation from asserting its right to 
 the money, nor could any statement in the opinion have that effect. 
 The corporation was not before the court, and as its right to the money 
 had not been submitted by it to the court for determination, it could 
 not be estopped by any statement in the opinion from subsequently
 
 500 WEST V. CRAWFORD. 112 
 
 asserting such right, and any statement in the opinion respecting its 
 right to the money would be only a dictum, and not binding either 
 upon the court or the corporation. 
 
 2. It was necessary that Shippee should have been made a party 
 defendant. The action was brought originally against West to recover 
 certain moneys which had been collected and were held by him for 
 the use and benefit of the plaintiff. This money was paid into the 
 court, and the appellants were substituted as defendants in the place 
 of West, and in their cross-complaint they asked that the money be 
 paid to them alone. Inasmuch as West held the money for the use 
 and benefit of the plaintiff, he could not, by paying that money into 
 court, change or diminish the right of the plaintiff to receive it, nor 
 was its right in any respect affected by the substitution of the appel- 
 lants as defendants in the place of West. The appellants, after 
 having repudiated their agency, can not claim that Shippee's presence 
 in court was essential to a determination of the plaintiff's right. 
 Shippee and the appellants are in no respect trustees under the instru- 
 ment for the purposes of carrying into effect any of its provisions. 
 There was no trust created by the instrument other than such a trust 
 as always exists between a principal and his agent, nor do the moneys 
 in question constitute a trust fund to be disposed of under the direc- 
 tions of a court of equity. They are simply moneys belonging to 
 the plaintiff, and which it has the right at any time to demand from 
 its agent. 
 
 The judgment and order are affirmed. 
 
 GAROUTTE, J., and DE HAVEN, J., concurred. 
 
 Note. See note, p. 482. 
 
 Sec. 112. Same. 
 
 WORKS, J. Extracts from opinion in West v. Crawford, 80 CaL 
 19, on pp. 27, 28, 29, 30, 31 and 32. 
 
 The action is not brought by a corporation, nor is this an attempt 
 to enforce an assessment made by a corporation. The contract sued 
 on is two-fold it amounts to a subscription to the stock of a corpora- 
 tion, to be thereafter organized; and in addition, it is an express 
 promise to pay to the plaintiff in this action twenty per cent, of the 
 amount of such subscription. The simple question, then, is, whether 
 or not this promise to pay the plaintiff can be enforced. The subse- 
 quent incorporation of the company named in the contract was a mat- 
 ter of no consequence, except that it fixed the time when the money 
 should become due and payable, the agreement being to pay five days 
 after the articles of incorporation should be filed. The subsequent 
 action of the board of directors ordering the collection of twenty per 
 cent, of the money subscribed was wholly unimportant. If this action 
 is maintainable at all, it is not by reason of any such action on the
 
 112 AGREEMENTS SUBSCRIBING TO STOCK. 5OI 
 
 part of the corporation, but by virtue of the mutual promise of these 
 parties to pay to the plaintiff the amount of money named. * * * 
 
 It is true, as contended by counsel for the appellants, that the mere 
 signing of this agreement to subscribe to the stock of the corporation 
 did not make the defendants members of such corporation. To do so 
 the statute must have been complied with by the signing of the articles 
 of incorporation, or otherwise complying with its provisions. (Troy 
 and Boston Railroad Co. v. Tibbits, 18 Barb. 297; Erie and New 
 York City Railroad Company v. Owen, 32 Barb. 616; Dorris v. 
 Sweeney, 64 Barb. 639.) 
 
 But it seems to us that the question whether they thereby became 
 members of the corporation or not is immaterial to this controversy. 
 The right to recover here, as we have said, depends wholly upon 
 their express promise to pay the money to the plaintiff in this action, 
 and if the suit can not be maintained on that ground, it is quite clear 
 to us that Jhe judgment of the court below is erroneous. * * * 
 f It is insisted that the agreement sued upon was not binding until all 
 the capital stock had been subscribed for, but we see nothing in the 
 agreement indicating such an intention on the part of the signers, nor 
 does any reason occur to us for so holding. There are authorities to 
 the effect that a party agreeing to subscribe to a certain number of 
 shares of a corporation to be organized can not be held liable to pay 
 assessments on his subscription until the whole of the stock is taken. 
 (Steamboat Co. v. Seawell, 78 Maine 176; Oldtown and Lincoln R. 
 Co. v. Veazie, 39 Maine 571 ; Atlantic Cotton Mills v. Abbott, 9 
 Cush. 423 ; Stoneham Branch R. Co. v. Gould, 2 Gray 277 ; Hughes 
 v. Antietam Mfg. Co., 34 Md. 316.) 
 
 But the contract under consideration bears evidence of a different 
 intention on the part of its signers. They contract to pay a sum of 
 money to a third party and not to the corporation. We must presume 
 that they contracted with knowledge of the fact that a valid incorpo- 
 ration of the company mentioned might take place under our code 
 without the whole of the stock being subscribed. Therefore, it can 
 not be presumed that their promise to pay w^as on condition that the 
 whole of the stock should be taken. If this was their intention, it 
 should have been expressed in the agreement. 
 
 The parties mutually agreed with each other, that is, with those 
 who signed the contract, to pay a certain sum of money to the plaint- 
 iff. He was thereby made a trustee of an express trust and author- 
 ized to collect the money agreed to be paid. (Code Civ. Proc., 
 369; Winters v. Rush, 34 Cal. 136; Considerant v. Brisbane, 22 
 N. Y. 389.) 
 
 The parties, by their mutual agreement, made the plaintiff their 
 trustee to collect and receive the money to be paid. He was not in 
 any sense the trustee of the corporation. There is nothing to indicate 
 that the money was ever to go to the corporation. On the contrary, 
 the contract shows on its face that it was not. When collected by the 
 plaintiff it was to go into the hands of the other trustees, to be used 
 by them in the purchase of water rights. How these water rights are
 
 502 IN RE LICENSED VICTUALLERS', ETC., ASSOCIATION. 113 
 
 to be transferred to the corporation, if at all, is not stated, but this 
 omission can not affect the liability of the parties to pay their debt. 
 Their mutual promise, one to the other, was a sufficient consideration 
 for the promise of each, and the contract was valid and binding. 
 (Twin Creek and Turnpike Co. v. Lancaster, 79 Ky. 552 ; Christian 
 College v. Hendley, 49 Cal. 347; George v. Harris, 4 N. H. 533, 
 17 Am. Dec. 446; Amherst Academy v. Cowls, 6 Pick. 427, 17 
 Am. Dec. 387; Funk v. Hough, 29 111. 145.) 
 
 Note. Compare Lake Ontario, etc., R. Co. v. Curtiss, 80 N. Y. 219; Quick 
 v. Lemon, 105 111. 578. 
 
 See 23 Am. & E. Encyc., p. 800 ; Beach, 519 ; Clark, p. 272 ; Cook, 57-69 ; 
 Elliott, 347 ; Morawetz, 47, 66; I Thompson, 1245. 
 
 Sec. 113. (4) Underwriting. 
 
 IN BE LICENSED VICTUALLERS' MUTUAL TRADING ASSOCIA- 
 TION. Ex PAETE AUDAIN. 1 
 
 1889. IN THE ENGLISH COURT OF APPEAL. L. R. 42 Chancery 
 Division, 1-8 , 26 A. & E. C. C. 217. 
 
 After a company called the Licensed Victuallers' Mutual Trading 
 Association, Limited, had been formed, but before its shares had been 
 fully offered to the public, George Ruclall, an agent of the company, 
 applied on its behalf to Claude Audain, a stock broker and financial 
 agent, who traded as Hollo way & Co., to "underwrite" a portion of 
 its shares, which were of the nominal value of 1 each, and an agree- 
 ment was entered into between them, w r hich was embodied in two 
 letters dated the i9th of March, 1888. 
 
 The first of these letters was written to Holloway & Co. by George 
 Rudall, and was as follows: 
 
 "GENTLEMEN In consideration of your underwriting ^10,000 
 'A' shares in the Licensed Victuallers' Mutual Trading Association. 
 Limited, at 15 per cent, discount, I, acting on behalf of the company, 
 undertake that all the applications which have been received up to 
 the present time, or may be received within one week of the closing of 
 the lists, shall be allotted in full from the said 10,000 shares under- 
 written by you. Yours truly, GEORGE RUDALL." 
 
 The second letter was written to George Rndall by Audain, and 
 was as follows: 
 
 "DEAR SIR Referring to your favor of even date, copy of which 
 we inclose, we hereby agree to underwrite ^10,000 'A' shares in the 
 Licensed Victuallers' Mutual Trading Association, Limited, on the 
 terms therein named. Yours faithfully, HOLLOWAY & Co." 
 
 "P. S. We further agree to pay the application money upon any 
 balance of shares required to make up the 10,000 within one week's 
 date. HOLLOWAY & Co." 
 
 1 Statement of facts abridged ; arguments and opinions of Lindley and 
 Bowen, L. JJ., omitted.
 
 113 UNDERWRITING. 503 
 
 On the i4th of April, 1888, the company proceeded to allotment, 
 and 8,555 shares were, in pursuance of the agreement thus constituted, 
 and without any further application for them being made, allotted to 
 Claude Audain under the name of Holloway & Co. Notice of such 
 allotment was given to him on the same day. 
 
 On the I yth of April Claude Audain returned to the company the 
 notice of allotment which had been sent to him, and at the same 
 time wrote to the secretary declining to take the shares. 
 
 On the 23d of May a resolution was passed for the voluntary wind- 
 ing-up of the company, and on the i6th of July an order was made 
 that the voluntary winding-up of the company should be continued 
 under the supervision of the court. 
 
 On the i yth of August, 1888, the liquidator settled the name of 
 Holloway & Co. on the list of contributories in respect of these 8,555 
 shares. 
 
 Claude Audain then applied to be removed from the list of contrib- 
 utories, and his motion for that purpose came on before Mr. Justice 
 Chitty on the 2Oth of December, 1888. 
 
 Mr. Justice Chitty considered that the letter (Mr. Audain's letter of 
 the ipth of March, 1888) must be treated as an application for so 
 many of the 10,000 shares to which the underwriting agreement ex- 
 tended as might not be applied for by the public, i. e., for the 8,555, 
 and that whatever question might have been raised at the time, the 
 case was merely the common case struck at by the 25th section of the 
 Companies Act, 1867. The parties, his lordship said, were appar- 
 ently not aware of the fact that issuing shares at a discount of 15 per 
 cent, was beyond the powers of the company; and he held that the 
 application, not having been made until after the winding up, must be 
 refused with costs. 
 
 From this decision Claude Audain appealed. 
 
 COTTON, L. J. This is an appeal from the refusal of Mr. Justice 
 Chitty to relieve the appellant from liability in respect of a number of 
 shares which had been allotted to him in a company now being wound 
 up, as the balance required to make up a certain number of 10,000 
 snares. The substantial question is whether the appellant is or is not 
 under any liability at all in respect to the shares so allotted to him. 
 That question turns upon the contract, and the contract, if any, is to be 
 found in the underwriting agreement which was entered into between 
 the appellant and the agent of the Licensed Victuallers' Mutual 
 Trading Association. From the evidence which has been given as 
 to the meaning of the expression "underwriting" as applied to shares, 
 it appears that an "underwriting" agreement means an agreement en- 
 tered into before the shares are brought before the public, that in the 
 event of the public not taking up the whole of them, or the number 
 mentioned in the agreement, the underwriter will, for an agreed com- 
 mission, take an allotment of such part of the shares as the public has 
 not applied for. That is what is meant when it is said that a person 
 has agreed to "underwrite" a certain number of shares in a company, 
 and that is, in my opinion, what was meant by the term "underwrite"
 
 504 IN RE FLORENCE LAND, ETC., CO. 114 
 
 in the present agreement. "Underwriting" is a well-known thing in 
 connection with the formation of companies. The appellant, in agreeing 
 to "underwrite" a certain number of shares, has agreed to do this par- 
 ticular thing, and, in my opinion, he is just as much bound in equity as 
 if the thing which he was to do had been set out at length in the con- 
 tract which was entered into. (His lordship then read the letters of 
 I9th March, 1888, and continued): It appears to be the usual course 
 that some formal application should be made for the shares, and it is 
 said that there should have been some formal application made for 
 allotment of the shares in the present case. But the postscript to the 
 letter writtten by the appellant shows that he considered that what he 
 had done amounted to an application, and that he himself treated the 
 letter not only as a guarantee, but as an application to take the balance 
 of the shares required to make up the ^10,000. 
 
 A further question arises as to the meaning of the expression un- 
 derwriting "at 15 percent, discount." It appears from the evidence 
 that the expression "discount" is an unusual term in connection with 
 the underwriting of shares, and that it is not a term to which any mean- 
 ing of art can be given ; and it further appears that under an under- 
 writing agreement a commission is paid on all the shares to which the 
 agreement applies, whether taken by the public or by the underwriter 
 himself. But the court must put a construction on the word. And 
 I think that upon the fair construction of the words used, they mean 
 not "discount" in the proper sense of the term, but merely "commis- 
 sion," the amount to be paid to the underwriter in respect of the 
 shares which he underwrote. It is not really a sum to be deducted 
 from the nominal amount of the shares when they are applied for and 
 allotted, but a sum to be paid on all the shares underwritten. "That 
 being so, it was not an agreement to allot shares at 15 per cent, dis- 
 count, but to pay 15 per cent, commission to the appellant in consid- 
 eration of his having made the contract with the company. I think, 
 therefore, that the decision of Mr. Justice Chitty was right in not re- 
 moving the appellant's name from the register in respect of these 
 shares. The appeal must accordingly be dismissed. 
 
 Note. See Cook, 15. 
 
 Sec. 114. (5) Application, allotment and notice. 
 
 IN RE FLORENCE LAND AND PUBLIC WORKS COMPANY, NICOL'S 
 
 CASE. 1 
 
 1885. IN THE ENGLISH COURT OF APPEAL. L. R. 29 Chancery 
 
 Division, 421-447. 
 
 [The Florence Land and Public Works Company, Limited, was in- 
 corporated on the 25th of January, 1866, under the Companies Act, 
 
 1 Statement abridged. Only part of opinion of Chitty, J., of the Chancery 
 Division is given. Arguments and the opinions of Baggallay, Bowen and 
 Fry, L. JJ. of Appeal, affirming Chitty's decision, are omitted.
 
 114 APPLICATION AND ALLOTMENT. 5O5 
 
 1862, with a nominal capital of ^500,000, divided into 25,000 shares 
 of ,"20 each. The object of the company was to purchase a conces- 
 sion granted to Mr. H. D. Davies by the municipal corporation of the 
 city of Florence. 
 
 Negotiations having been commenced with the Agra and Master- 
 man's Bank to open a credit for the company for a large sum of money, 
 the bank consented to the proposal on condition that a certain number 
 of shares were bona Jide subscribed for. In consequence of this a 
 memorandum of agreement was prepared in the following terms: 
 
 "We, the undersigned, hereby consent and agree to take the num- 
 ber of shares in the capital of the above company set opposite to 
 our names, and to pay the sum of S per share into the hands of 
 the bankers of the company on or before the ist of February, 1867, 
 and we further ggree to sign the articles of association when required. 
 
 "25th January, 1866." 
 
 This memorandum was signed by seventy-one persons, among whom 
 Mr. Tufnell signed for 250 shares, Mr. Ponsonby for 250, and 
 Mr. Joseph Wilkinson (who was not a subscriber of the memorandum 
 of association) for 100. The solicitor of the company having advised 
 that this memorandum of agreement would not be sufficient to consti- 
 tute the subscribers shareholders without an allotment of shares to 
 them, a letter of allotment, signed by the secretary of the company, 
 was sent by order of the board on the I2th of April, 1866, to each 
 subscriber in the following form : 
 
 "Sir, 
 
 'I beg to inform you that the directors have allotted you shares 
 
 in this company. 
 
 "In accordance with the memorandum of agreement signed by you, 
 you will have to pay to the Agra and Masterman's Bank, Limited, 
 the bankers of the company, on or before the ist day of February, 
 1867, the sum of ." 
 
 The total number of shares thus allotted was 20,220. 
 
 The names of the allotees, however, were not entered on the reg- 
 ister of members, and no share certificates were issued to them; nor 
 was any money paid by them in respect of the shares. 
 
 In June, 1866, the Agra and Masterman's Bank stopped payment, 
 and the above mentioned memorandum and letters of allotment ap- 
 pear to have been treated as inoperative. 
 
 By an indenture, dated the 23d of March, 1869, and made be- 
 tween the company of the one part and H. D. Davies and J. T. Camp- 
 bell of the other part, an arrangement was made under which it 
 was agreed that the company should pay Davies and Campbell 
 ^80,000, and should allot them or their nominees 24,350 shares, 
 on which ^10 each should be taken as paid, and that Davies and 
 Campbell should release the company from all claims upon them. 
 This deed was registered on the 2ist of April, 1869. In accordance 
 with this agreement the board of directors, on the 6th of April, 1869,
 
 506 IN RE FLORENCE LAND, ETC., CO. 114 
 
 passed a resolution cancelling the allotment of 20,200 shares, and 
 allotted 24,350 to Davies and Campbell and their nominees. 
 
 On the 2 1st of April, 1869, a return was made for the first time to 
 the registration office of the 25,000 shares in accordance with this al- 
 lotment, and similar returns were made in each year until the winding 
 up of the company. On the i6th of November, 1877, an order for 
 winding up of the company was made on a petition presented in the 
 month of July previous. At that time the register of shares com- 
 prised the whole capital of 25,000 shares, with ^10 paid on each 
 share, which were divided between fifteen persons. Wilkinson's 
 name did not appear on the register. 
 
 Wilkinson died in October, 1868, having appointed J. Nicol his 
 executor. 
 
 The official liquidator now applied to the court to rectify the regis- 
 ter by striking out 100 of the shares of H. D. Davies, and entering 
 them as the shares of Wilkinson. 
 
 The summons was heard before Mr. Justice Chitty on the 26th of 
 November, 1883.] 
 
 CHITTY, J. This is an application by the official liquidator to 
 place the executor of Mr. Wilkinson upon the list of contributories for 
 100 shares. Mr. Wilkinson's name had never been on the register of 
 the members of the company; from the year 1869 downwards, the 
 register of members has been filled up, and all the shares of the com- 
 pany appear to be held by members of whom Mr. Wilkinson is not 
 one. The liquidator has proved to my satisfaction that, in the year 
 1866, there was a complete contract to take shares on the part of Mr. 
 Wilkinson. The contract is shown in this way: There is what was 
 termed an "agreement" signed by Mr. Wilkinson and other gentle- 
 men by which they consented and agreed to take a number of shares 
 in the company set opposite their names. That, of itself, of course, 
 was not an agreement. In point of law that was only an offer, and 
 the offer required acceptance on the part of the company. Beyond all 
 question the company accepted it; they accepted it possibly by their 
 having handed the document itself to the Agra and Masterman's 
 Bank, who were able to make advances. However that may be, the 
 company clearly accepted the offer in the manner I am about to men- 
 tion. In the usual way the directors met, and they resolved- to allot 
 the shares to the persons mentioned in what I have already called the 
 "offer," including Mr. Wilkinson, and they notified that to Mr. Wil- 
 kinson. Accordingly there was a complete contract on the part of 
 Mr. Wilkinson, also binding on the company, to take 100 shares. 
 The form of the resolution was, that the directors allotted 100 shares 
 to him, and the argument before me has proceeded to a great extent 
 on the meaning of the word "allot." There is no diffeience, as has 
 been often pointed out, between a contract to take shares and any 
 other contract. What is termed "allotment" is generally neither 
 more or less than the acceptance by the company of the offer to take 
 shares. To take the common case, the offer is to take a certain num- 
 ber of shares, or such a less number of shares as may be allotted.
 
 114 APPLICATION AND ALLOTMENT. 507 
 
 That offer is accepted by the allotment either of the total number 
 mentioned in the offer, or a less number, to be taken by the person 
 who made the offer. This constitutes a binding contract to take that 
 number according to the offer and acceptance. To my mind there is 
 no magic whatever in the term "allotment" as used in these circum- 
 stances. It is said that the allotment is an appropriation of a speci- 
 fied number of shares. It is an appropriation, not of specific shares, 
 but of a certain number of shares. 
 
 It does not, however, make the person who has thus agreed to take 
 the number of shares a member from that moment; all that it does is 
 simply this it constitutes a binding contract under which the com- 
 pany is bound to make a complete allotment of the specified number 
 of shares,- and under which the person who has made the offer and is 
 now bound by the acceptance is bound to take that particular number 
 of shares. In most cases the act of placing the person who has agreed 
 to become a member on the register is a mere matter of form, and 
 may be described as a mere ministerial act; but it appears to me that 
 in point of law, all that is done by the process I have indicated, and 
 all that was done in this case, was to make a complete and binding 
 contract. 
 
 As Lord Justice Baggallay said in In re Scottish Petroleum Com- 
 pany, 1 "to constitute a binding contract to take shares in a com- 
 pany when such contract is based upon application and allotment, it 
 is necessary that there should be an application by the intending share- 
 holder, an allotment by the directors of the company of the shares ap- 
 plied for, and a communication by the directors to the applicant of 
 the fact of such allotment having been made." There Lord Justice 
 Baggallay used the term "allotment" in what appears to me to be the 
 proper sense of the term. It is only as constituting one of the steps 
 which go to form a complete contract. There have been other cases 
 in which the term has been used by judges, but I am satisfied that all 
 they meant was that there had been, in the particular case before 
 them, complete allotment; that is, that the name of the person who 
 had "agreed to become a member," to use the language of the 23d 
 section of the act, had been entered upon the register. Where the 
 contract exists and no question of delay or acquiescence arises, I re- 
 peat that the placing of the name of the person who has agreed to be- 
 come a member upon 'the register is a mere formal act, and it maybe 
 performed at some considerable interval of time. In most cases it is, 
 of course, the duty of the directors immediately after the so-called 
 allotment, that is to say, the notification' of the acceptance of the 
 offer, to place the person's name on the register of members. 
 
 In this case, as I have said, the register, since the year 1869, has 
 been filled in so as to exhaust the total number of shares which could 
 be taken in the company, and Mr. Wilkinson's name is not to be 
 found on the register. What apparently was done was this: In 1869 
 the directors resolved to cancel the former allotment, and made new 
 allotments to the extent I have mentioned; and they made a complete 
 
 l 23Ch. D.413, 430.
 
 508 IN RE FLORENCE LAND, ETC., CO. 114 
 
 allotment by entering upon the register the names of the persons who 
 had thus agreed in 1869 to become members in respect of the whole 
 of the shares. 
 
 The question really turns upon the act of parliament. I may state 
 that, according to my recollection, the term "allotment" is not even 
 mentioned in the act anywhere. The term "allotment" is a popular 
 term ; it is not a technical term occurring in the act of parliament 
 itself. The 23d section says: "The subscribei's of the memorandum 
 of association of any company under this act shall be deemed to have 
 agreed to become members of the company whose memorandum they 
 have subscribed, and upon the registration of the company shall be 
 entered as members on the register of members hereinafter mentioned. " 
 Now, stopping there, the decisions are quite clear that,, where a 
 person has signed the memorandum, and afterward the company have 
 made a complete allotment of all the shares in the company by enter- 
 ing on the register the names of other persons who also agreed to be- 
 come members, in the winding up the court will not place even the 
 person who has signed the memorandum on the list of contributories. 
 Why is that? Because the portion of the section which I have read 
 makes the signing of the memorandum the agreement, and then re- 
 quires the further proceeding of placing that person's name upon the 
 register as a member. That is the construction which has been 
 adopted by the courts, and is settled law, with reference to the earlier 
 part of the 23d section. The second part of the section is this: "And 
 every other person who has agreed to become a member of the com- 
 pany under this act, and whose name is entered on the register of 
 members, shall be deemed to be a member of the company." The 
 effect of the legislation in this part of the section is identical with the 
 legislation in the earlier part, the only difference being that the sign- 
 ing of the memorandum is by statvitory enactment to be deemed to be 
 a contract to take shares, whereas in the case of other persons you 
 must have an actual contract to take the shares; and in both cases the 
 name is to be entered upon the register of members. 
 
 It seems to me that all the decisions in the earlier part of the session 
 apply with full force to the case which is now before me. If any- 
 thing, this is an a fortiori case, seeing that the eigtheenth section of 
 the act enacts that "the subscribers of the memorandum of associa- 
 tion, together with such other persons as may 'from time to time be- 
 come members of the company, shall thereupon be a body corporate." 
 The persons who have subscribed the memorandum do at once con- 
 stitute a corporate body. Again, the language of that section tallies 
 with that of the twenty-third section. It is not "together with such 
 other persons as may from time to time agree to become members," 
 but "together with such other persons as may from time to time be- 
 come members." 
 
 The result, therefore, appears to me to be quite clear that the liqui- 
 dator is in the position in which the company would have found itself 
 if there had been no winding up, and the company were endeavoring 
 to enforce specific performance of this contract. The answer, of
 
 114 APPLICATION AND ALLOTMENT. $09 
 
 course, would be plain : there has been such delay before the wind- 
 ing up eight years or more having been allowed to elapse, and this 
 application not having been made until within a recent period that 
 the court would refuse to enforce specific performance. On that 
 ground alone this application fails. If the persons who had agreed 
 to become members had acted as shareholders the consideration would 
 have been entirely different; but both parties, that is to say, the com- 
 pany on the one side and Mr. Wilkinson on the other, have acquiesced 
 in this state of things, that Mr. Wilkinson should not be treated as a 
 member. He has never on any occasion attempted to assert his 
 right, and he seems in the year 1869, when the act of cancellation 
 took place, to have submitted to it; but whether he submitted to it or 
 not, it is quite plain, since then, that he has acquiesced, and that if he 
 or his executor were to come now and say, "I am a member; put me 
 on the list of contributories, because there will be a surplus to be di- 
 vided in the winding tip of this company," his application would be 
 refused, just as much as I think the application of the liquidator ought 
 to be refused now. 
 
 I should say, that, to avoid any technical question, I allowed the 
 summons to stand over in order to serve the other persons whose 
 names appear upon the register. They do appear; they have argued 
 that there is no case against them made for rectifying the register ; 
 they claim to be allowed to hold the shares which they purport to 
 hold for the long period I have mentioned, namely, from 1869; and 
 therefore it is impossible for me to exercise the power which is con- 
 ferred upon the court in the winding-up, to rectify the register of 
 members as against them, or, indeed, as I think, against Mr. Wilkin- 
 son. The result is that the application fails. 
 
 I ought to say this, that, although these directors have not power to 
 accept a surrender of the shares, yet they were the managers of the 
 company, and if the company itself have, just as in the case of any 
 ordinary individual corporation that has entered into a contract of 
 which specific performance is sought either by them or against them, 
 created an equity against themselves ; and this is an equity in which 
 Mr. Wilkinson, by resisting what is in substance a suit for specific 
 performance, is setting up, and it appears to me successfully. There- 
 fore, no question arises as to the act of the directors being tiltra -vires, 
 because they have no power to accept surrenders. It appears to me 
 that Mr. Wilkinson's executor has succeeded, and I therefore refuse 
 the application. 
 
 Note. See 23 Am. & Eng. Ency. p. 791 ; Beach, 514; Cook, 23-56; El- 
 liott, 351. Re London and Northern Bank, 81 L. T. R. 512.
 
 5IO ESTOPPEL. FORM OF CONTRACT. I 15 
 
 Sec. 115. (6) Estoppel. (See McCarthy v. LaVasche, 89 111. 
 270, 31 Am. Rep. 83, supra, p. 2 5 3.) 
 
 Note. Voting alone is not sufficient to estop. 1882, Burgess v. Seligman, 
 107 U. S. 20; 1887, Union Sav. Ass'n v. Seligman, 92 Mo. 635, 1 Am. St. Rep. 
 776. 
 
 FORM OF SUBSCRIPTION TO STOCK IN A CORPORATION TO BE FORMED. 
 
 The following is suggested as a form for such subscription : 
 
 This agreement entered into among the parties whose names are under- 
 signed witnesseth: 
 
 That for and in consideration of the advantages arising to each of us from 
 concert of action through the form of a corporate organization, and of the 
 mutual promises and agreements herein contained, made each for himself and 
 with each of the others who have heretofore or who do hereafter sign this 
 agreement, subscribing for shares of stock in the corporation to be hereafter 
 formed, and of the further consideration of the efforts made and to be made 
 by [John Smith, and, etc.,] in procuring signatures hereto subscribing for 
 stock in said proposed corporation, upon the terms herein contained, and aid- 
 ing in incorporating and organizing the same, and of the further considera- 
 tion of $1 by each of us paid to each of the others, the receipt whereof is ac- 
 knowledged, 1 do hereby covenant and agree to form a corporation such as here- 
 inafter indicated, and do hereby, under our hands and seals 2 (hereby sev- 
 erally agreeing that one seal shall be the seal of each), subscribe to the 
 stock of such corporation the amounts set opposite our names, and do hereby 
 constitute and appoint the said [John Smith, etc.,] our agents and attorneys 
 to procure such subscriptions, and aid in organizing such corporation (for 
 
 which services said Smith, et al., are to receive the sum of dollars, to 
 
 be borne by each of the parties hereto in the proportion the stock subscribed 
 by him bears to the total stock subscribed, or for which services said Smith, 
 
 etc., are to receive shares of the stock of such corporation, fully paid 
 
 up) agreeing hereby to pay to said Smith, etc., , or, at their request, to 
 
 said corporation, the sum of dollars upon each share subscribed, when 
 
 the sum of dollars shall be subscribed, or at such time thereafter as 
 
 they shall designate upon days' prior notice, for the purposes herein- 
 after set forth. 
 
 This agreement shall become operative only in case the sum of 
 
 dollars shall be subscribed. 
 
 The name of said corporation shall be ; 
 
 The location of the principal office shall be ; 
 
 The purpose of such corporation shall be 
 
 The amount of capital stock shall be , in snares of dollars each, 
 
 to be paid for as follows: [ - dollars upon request of agents herein 
 named as above set forth, the balance upon call of directors in such sums and 
 at such time as the directors of such corporation shall designate upon 
 days' previous notice]. 
 
 Said corporation shall be organized under the laws of the state of . 
 
 1 It would seem that such a provision was useless, but Mr. Taylor, Law of 
 Private Corporations, 94, does not think so. Hence its insertion here. 
 
 2 Mr. Taylor, 94, and Prof. Langdell, in Summary of Contracts, 186, 
 think the agreement should be under seal.
 
 fll6 CONDITIONAL SUBSCRIPTIONS. $11 
 
 Names. 
 
 Seals. 
 
 No. of Shares. 
 
 Amount. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 For form of World's Fair subscription contract, see 1 Cook Corp. (4th ed.) 
 p. 190. 
 
 ARTICLE IV. FORMS. CONDITIONAL SUBSCRIPTIONS. 
 
 Sec- 116. Conditions may be express or implied. 
 
 ANDERSON ET AL. v. MIDDLE AND E. T. CENTRAL R. CO. 1 
 
 1891. IN THE SUPREME COURT OF TENNESSEE. 91 Tenn. 44, 17 
 
 S. VV. Rep. 803. 
 
 Appeal from chanceiy court. 
 
 LURTON, J. A number of subscribers to the original stock of the 
 defendant company have joined in filing this bill for the purpose of 
 enjoining suits at law upon their several contracts of subscription. 
 The corporation, expressly waiving all questions of jurisdiction, an- 
 swers, and submits the liability of complainants to the judgment of 
 the court, and by cross-bill seeks a recovery against each of them. 
 The learned chancellor was of opinion that no liability existed, and 
 perpetually enjoined suits at law, and dismissed the cross-bill. In 
 
 support of this decree a number of propositions have been urged. 
 
 * # * 
 
 2. The capital stock was fixed by the corporators, at a meeting 
 held for purposes of organization, at $3,000,000. Something less 
 than $50.000 of this had been taken when this bill was filed. Com- 
 plainants' contention is that, until the whole of the stock is taken, 
 they can not be made liable for calls on their subscriptions. It is well 
 settled that there is an implied condition that the amount of stock 
 specified in the charter, articles of association, or contract of subscrip- 
 tion, or fixed by the corporators when authorized to settle same, shall 
 be actually taken before the subscribers shall become liable. Read 
 v. Gas Co,, 9 Heisk. 545; Mor. Priv. Corp., 156; Burt Priv. 
 Corp., 535. This implication may, however, be rebutted by the 
 terms of the charter, or the provisions of the enabling act, articles of 
 association, action of stockholders or corporation fixing capital, or by 
 the conditions of the contract of subscription. So a subscriber may 
 waive such condition, and this waiver may be either express or im- 
 plied. A waiver will generally be implied if the subscriber consents 
 to the letting of contracts, the creation of debt, or the doing of any 
 
 1 Part of opinion and arguments omitted.
 
 512 ANDERSON V. MIDDLE, ETC., R. CO. I l6 
 
 corporate act involving the necessity of calling in the subscribed stock, 
 unless the charter expressly forbid the doing of any corporate act until 
 the requisite capital is taken. Mor. Priv. Corp., 156; Burt Priv. 
 Corp., 535, and authorities cited. There is nothing in the charter 
 or resolution fixing the amount of capital stock, or in the original 
 contract of subscription, rebutting the usual implied conditions, and 
 taking their contract of subscription out of the general rule of law. 
 But, after the original subscription had been made, a majority of the 
 subscribers entered into the following agreement: "For the purpose 
 of enabling the Middle and East Tennessee Central R. Co. to put 
 their road under construction from the Chesapeake and Nashville 
 Railroad to Hartsville, Tenn., the undersigned subscribers to the cap- 
 ital stock of the said M. & E. T. C. R. Co. agree that they will pay 
 their said subscriptions as fast as the work progresses, provided that 
 not more than 25 per cent, shall be called for in any one .month." 
 Upon the faith of this agreement the directors let out a contract for 
 the construction of the very part of the projected line contemplated 
 by this agreement, being eleven and one-half miles, and covering the 
 route between the Chesapeake and Nashville road and the town of 
 Hartsville. The contractors were shown this supplementary agree- 
 ment, and, upon the faith of it, accepted a contract to construct so 
 much of the road as was agreed to by that paper, and had completed 
 about 70 per cent, of the work when this suit was begun. The obvi- 
 ous effect of assenting to this agreement was to waive the implied 
 condition that the whole of the stock should be raised, and was an 
 undoubted agreement that the work should begin at the Chesapeake 
 and Nashville Railroad instead of the town of Galladn. Some of 
 the complainants did not sign this agreement, and are not shown to 
 have assented, by votes or otherwise, to the commencement of work 
 or the creation of debt. There is proof that at a meeting of sub- 
 scribers it was unanimously resolved that the directors should let out 
 a contract for that part of the line between Gallatin and Carthage, 
 but it is not shown that the complainants who failed or refused to sign 
 the agreement above set out in any way participated in this meeting, 
 or that their stock was represented. We therefore decide that such of 
 complainants as did not sign the agreement assenting to the beginning 
 of the work between the Chesapeake and Nashville Railroad and the 
 village of Hartsville are not now liable to have their stock called. 
 The remainder of the complainants have expressly agreed to the be- 
 ginning of construction and to the payment of their stock as work 
 progressed, and as to them this implied condition has been waived. 
 
 3. Certain other positions remain to be considered as to those of 
 complainants who have waived the condition that the full capital stock 
 should be raised. It is said that the defendant company is now. insolv- 
 ent, and that the original scheme for a route from Gallatin to Knox- 
 ville can not be carried out, and that the enterprise has been dwarfed 
 to a short link, beginning eight and one-half miles from Gallatin, and 
 terminating at Hartsville. It is urged that the charter provided for a 
 road beginning at Gallatin, and not at a point on the Chesapeake and
 
 Il6 CONDITIONAL SUBSCRIPTIONS. $13 
 
 Nashville road, eight and one-half miles from Gallatin, and that it 
 should terminate at Knoxville, and not at the town of Hartsville ; that 
 complainants are business men and property owners in Gallatin, and 
 that the scheme into which they entered contemplated a great through 
 road, passing through the coal-fields of the Cumberland Mountains, 
 and connecting their city with other lines of railway and with the 
 flourishing city of Knoxville. They further insist that to procure 
 their subscriptions the officers and agents of the company represented 
 that no calls would be made upon their subscriptions until the com- 
 pany had secured a contract whereby, if it should build to Carthage, 
 it could consolidate with a road thence to Knoxville, to be built by a 
 Mr. Crawford, and that no call should be made until the Chesapeake 
 and Nashville road was constructed into Nashville, and a running ar- 
 rangement made by which the trains of the defendant company should 
 be carried into Nashville over the track of the Chesapeake and Nash- 
 ville ; that none of these things have been done, or are now possible ; 
 and that, therefore, they should not be held liable. The company, 
 for answer to the objection as to the beginning point of the road under 
 construction, interpose an alleged amendment to the charter, fixing 
 the beginning point at the Chesapeake and Nashville Railroad, near 
 Gallatin. This amendment was obtained in 1884, upon application 
 of the directors, as provided by the act of 1875, as amended by the 
 act of 1883, ch. 163. It was duly registered in Sumner county, but 
 appears never to have been registered with the secretary of state. 
 This neglect makes the amendment, even if otherwise valid, ineffect- 
 ual and void. An amendment must be registered as the original, 
 and, until this is done, is subject to the same objection which renders 
 void a defectively registered charter. Brewer v. State, 7 Lea 682. 
 Another amendment was obtained pending this suit, changing the 
 termini to the Chesapeake and Nashville Railroad near Gallatin, and 
 the town of Carthage in Smith county. This amendment seems to 
 have been in all respects properly registered. By it the capital stock 
 was reduced to $350,000. This reduction does not help the case, in- 
 asmuch as it is not shown that even this has been taken, to say noth- 
 ing of other objections not necessary to consider. Without passing 
 upon the validity of this second amendment, we are of opinion that, 
 whether valid or invalid, the complainants are estopped to question 
 their liability as subscribers. They expressly agreed that, to enable 
 the company to put under construction the line between the Chesa- 
 peake and Nashville Railroad and town of Hartsville, they would 
 pay their subscriptions as that work progressed, in calls of 25 per 
 cent, monthly. It is too late now to say that the line has not been 
 begun at Gallatin, or that it can not be carried beyond Hartsville. 
 We know of no reason why this company might not have begun the 
 work of construction at any point on the line between Gallatin and 
 Knoxville. If its finances should prove insufficient to connect the 
 part so constructed with the charter termini, this ought not, in law or 
 equity, to relieve the subscribers who assented to the beginning of so 
 
 33WiL. CASES.
 
 5 14 TAGGART V. WESTERN MARYLAND R. CO. I I/ 
 
 great an enterprise upon so insufficient a capital. The representations 
 made to induce subscriptions were all made antecedent to the written 
 contract of subscription, and upon this ground, as tending to contra- 
 dict the written contract, were excluded. This ruling was doubtless 
 correct. * * * Decree reversed as to all complainants, except 
 Anderson, Miller and Thompson. 
 
 Note. See Denny Hotel Co. v. Schram, 6 Wash. 134, 36 Am. St. R. 137, 
 infra, p. 553; Angell & Ames, 146, 543; Beach, 531-41 ; Boone, 110; 
 Clark, 107-9; Cook, 77-89; Elliott, 352-9; Morawetz, 78-93; Tay- 
 lor, 517, 518-21; I Thompson, 1235-42; VII 76., 8612. 
 
 That all stock must be subscribed before any subscriber, who is not 
 estopped by his own acts, shall be called upon to pay anything except for 
 preliminary or organization expenses, see 1827, Salem Mill Dam Corp. v. 
 Ropes, 6 Pick. (Mass.) 23; 1854, Stoneham Branch R. Co. v. Gould, 2 Gray 
 (Mass.) 277; 1872, Peoria & R. I. R. Co. v. Preston, 35 Iowa 115; 1876, War- 
 wick R. Co. v. Cady, 11 R. I. 131; 1878, Allman v. Havana R. & E. Co., 88 
 111. 521; 1879, Barity v. Buckles, 68 Ind. 49; 1885, Halsey Fire Eng. Co. v. 
 Donovan, 57 Mich. 318; 1886, Rockland Mt. D. & S. S/Co. v. Sewall, 78 
 Maine 167; 1887, Haskell v. Worthington, 94 Mo. 560; 1889, Anvil Mining 
 Co. v. Sherman, 74 Wis. 226; 1891, Association v. Walker, 88 Mich. 62, 49 N. 
 W. 1086; 1894, Stearns v. Sopris, 4 Colo. App. 191; 1895, McKay v. Elwood, 
 12 Wash. 579; 1898, Cusick v. Bartlet, 91 Maine 153; 1898, McFarland v. 
 West Side Imp. Assn., 56 Neb. 277, 76 N. W. 584. But see 1855, York, etc., R. 
 v. Pratt, 40 Maine 447; 1878, Cheraw, etc., R. v. White, 10 S. C. 155; 1891, 
 Hamilton v. Clarion, etc., R., 144 Pa. St. 34. 
 
 This rule, however, does not apply to subscriptions to authorized increases 
 of stock. 1856, Nutter v. Lexington, etc., R., 72 Mass. 85; 1877, Clarke v. 
 Thomas, 34 O. S. 46; 1886, Delano v. Butler, 118 U. S. 634; 1889, Avegno v. 
 Citizens' Bank, 40 La. Ann. 799; 1891, Bank v. Eaton, 141 U. S. 227; 1891, 
 Port Edwards, etc. R. v. Arpin, 80 Wis. 214. 
 
 Sec. 117. Express conditions may be attached to subscriptions 
 made (i) before, or (2) after incorporation. Payment of 
 deposits. 
 
 TAGGART v. THE WESTERN MARYLAND R. COMPANY. 1 
 
 1866. IN THE COURT OF APPEALS OF MARYLAND. 24 Md. Re- 
 ports, 563-597, 89 Am. Dec. 760. 
 
 Action by railroad company to enforce stock subscriptions. 
 
 BOWIE, C. J., delivered the opinion of the court. 
 
 The general assembly, at January session, 1852, incorporated "The 
 Baltimore, Carroll and Frederick Railroad Company," with a clause 
 prescribing certain preliminaries usually observed in opening the 
 books and taking subscriptions for stock, prior to the organization of 
 a company, among others, the prepayment of $i per share on every 
 share subscribed; also, requiring the road therein contemplated to be 
 commenced within three years and finished within ten from the pas- 
 sage of the act, otherwise the same should be nulland void. Books 
 
 1 Arguments omitted; statement of facts, except as appears in opinion of 
 court, omitted. Part of opinion relating to other points, omitted.
 
 117 CONDITIONAL SUBSCRIPTIONS. 51$ 
 
 were opened by the commissioners, the requisite number of shares 
 subscribed, a board of directors and a president were elected and the 
 company fully organized. 
 
 After this organization the appellant, on the 28th of April, 1853, 
 subscribed for ten shares, in one of the subscription books, held by 
 Mr. Johnson, upon the terms and conditions prescribed therein and 
 the charter, with this condition annexed: "Provided, The said con- 
 templated road should be built on the then present track of the then 
 existing branch to 'Green Spring,' of the Baltimore and Susquehanna 
 Railroad," but did not pay the sum of $i per share, required by the 
 charter to be paid to the commissioners, at the time of subscribing. 
 
 The name of the corporation was subsequently changed, by act of 
 assembly, to that of "The Western Maryland Railroad Company." 
 The defendant's subscription, with others, was returned to the stock- 
 holders, and classified among the conditional subscriptions. The con- 
 struction of the road not having been commenced within the time 
 prescribed by .the original charter, the act of 1856, ch. 289, was passed, 
 waiving all claims of forfeiture, by reason of the company's failure to 
 comply with any of the provisions of the act of incorporation, and 
 allowing six years for the commencement, and twelve from the pas- 
 sage of the act for the completion of the road. 
 
 The "Green Spring" branch of the Baltimore and Susquehanna 
 Railroad was adopted by the appellee on the- 3ist of March, 1857, 
 and the road put under contract for construction. No calls were made 
 for payment of subscriptions until the 25th of June, 1857. The ap- 
 pellee never indicated, affirmatively, any intention of abandoning the 
 work of the appellant; never affirmatively withdrew his subscription, 
 or attended any meeting of the stockholders or subscribers to the 
 stock. 
 
 Several calls for installments having been made and refused, this 
 action was brought on the ist of February, 1861. The prayers offered 
 by the plaintiff- (now appellee), and granted by the court, present 
 three negative propositions : 
 
 1. That the change in the corporate name of the appellee by the 
 act of 1853, ch. 37, is not a bar to the present action. 
 
 2. That upon the finding of the facts therein before specified, the 
 non-payment of $i per share by the defendant, at the time of his sup- 
 posed subscription, is not of itself a bar to the present action. 
 
 3. That the failure to commence the work within three years from 
 the act of incorporation (1852, ch. 304), the act of 1856, ch. 289, be- 
 ing duly passed and accepted by the stockholders of the plaintiff, is 
 not a bar to this suit. 
 
 The first proposition is admitted, but the second and third propo- 
 sitions are specially denied by the prayers of the defendant, which 
 were rejected by the court, and constitute the ground of this appeal. 
 
 The first and third prayers of the appellant are the converse of the 
 appellee's second; the appellant's second prayer, of the appellee's 
 third. 
 
 The learned counsel differ as to the range of the first and third
 
 5l6 TAGGART V. WESTERN MARYLAND R. CO. I I/ 
 
 prayers. The appellee contends they present only the question of the 
 effect of the non-payment of the cash installment of $ i at the time of 
 the subscribing; on the other hand, it is insisted they embrace the 
 conditional character of the subscription, and the validity of such. It 
 is observable that these prayers refer specifically to the subscription, in 
 the following terms: "And that the defendant made the subscription 
 offered in evidence by the plaintiff" etc., as one of the facts upon 
 which the proposition of the defendant was based. This specific ref- 
 erence in each of the prayers under consideration was not merely 
 introductory to the other facts connected with it, but called for an ex- 
 amination of the subscription itself, its character and conditions. 
 
 The subscription of the appellant is not set out in terms in the bill 
 of exceptions, but referred to as a conditional subscription. In the 
 narr. and appellee's brief, it is set out ''in totidem verbis" as therein- 
 before cited. 
 
 Assuming that the evidence, offered by the plaintiff (and refused to 
 the defendant in his prayer), corresponds with the subscription set out 
 in the narr,, the legal sufficiency of such subscription was necessarily 
 brought before the court by the first and third prayers of the defend- 
 ant, whether the right of action depended on the prepayment of the 
 deposit or the conditional character of the subscription itself. The 
 supposed contract being in writing, its validity was a question for the 
 court, and however the latter view may have been overlooked in the 
 discussion of the former, it seems necessarily involved at the disposal 
 of these prayers. 
 
 The first point presented by the prayers arises under the third sec- 
 tion of the act of 1852, ch. 304, incorporating the appellee, which di- 
 rects that "upon every subscription, there shall be paid at the time of 
 subscribing, to the company or their agents, appointed to receive such 
 subscription, the sum of $i on every share subscribed." As there 
 are other cases involving the construction of this section, we are re- 
 quested to interpret it, not only as it may operate upon the facts in 
 this case, but upon subscriptions made to commissioners or their 
 agents, prior to the organization of the company. It is contended 
 that this clause applies peculiarly and solely to the latter class of sub- 
 scriptions, as to which, it is only directory and not indispensable. The 
 class of cases maintaining the contrary, it is insisted, originated in the 
 decision of the case of Jenkins v. The Union Turnpike Company, i 
 Caine's Cases in Error 86, by the court of errors in New York, which 
 was contrary to the better opinion (as it said) of the supreme court of 
 New York, and make only a ''suite d'erreurs" The defect or 
 vice of the original decision is not pointed out, but it is impeached as 
 emanating from a court, constituted of laymen, as well as lawyers, 
 and of less authority than the tribunal whose decision it reviewed and 
 reversed. A decision not universally adopted, but questioned, 
 doubted and overruled. We are invoked not to follow such prece- 
 dents, upon a mere comparison of facts, but to apply the judicial 
 mind to a consideration of the principles of law applicable to them.
 
 117 CONDITIONAL SUBSCRIPTIONS. 
 
 With the earnest exhortation in view, we have examined the series of 
 cases referred to, and will concisely state the result. 
 
 The controlling principle, on which those cases are founded is, that 
 all charters or acts under which highways are erected, and franchise 
 and privileges conferred, are deputations of public power or authority 
 to be strictly construed. The subscription for stock must be founded 
 on a valid consideration, and constitute a contract binding on both 
 parties "0 instanti." The promise of the subscriber being based 
 on the promise or expectation of becoming a stockholder, if the right 
 to the stock is not consummated by payment of the deposit, the obliga- 
 tion to pay the subscription is not binding. 
 
 Chancellor Lansing, treating the act under which the subscription 
 was made in that case as a public law, the provisions of which he 
 must notice officially, whether pleaded or not, thus defines the duties 
 of the commissioners: 
 
 "From the record it appears that commissioners were appointed by 
 the statute to perform certain duties particularly described. They 
 were to receive subscriptions and to receive for the benefit of the de- 
 fendants (in error) $10 on each share of the stock of their company. 
 The plaintiff (in error) subscribed, but it does not appear that he 
 paid. At the time these steps were taken the corporation described 
 in the act was not in existence. It was incapable of contracting. The 
 acts to be performed by the commissioners were merely preparatory 
 to its creation. To give effect to their acts, their power must be 
 strictly pursued. * * * They were directed to exact from the 
 persons who were to be admitted members of the corporation, both 
 subscription and payment, as a condition precedent to their admis- 
 sion. If they omitted either to subscribe or to pay, they did not come 
 within the terms of admission." I Caine's Cases in Error 94. 
 
 Tilghman, C. J., in the case of The Hibernia Turnpike Company 
 v. Henderson, 8 Serg. & Rawle 219 l (which was a subscription to 
 commissioners before the organization of the corporation), enlarged 
 upon the principles of public policy, which required a rigid adher- 
 ence to the letter of the law and strict compliance with the requisi- 
 tion of prepayment in all subscriptions made to commissioners. 
 "If (he says) persons are permitted to subscribe without the previous 
 payment of $5 a share, large subscriptions may be made, which could 
 not otherwise have been made, by those who are anxious to give a 
 direction to the road, which may benefit themselves at the expense of 
 the public. * * * The case will be reduced to this simple question: 
 Can a contract be enforced in a court of justice which was made in 
 violation of an act of assembly? It is not the first time this question 
 has been asked in this court, and it has received but one answer: it 
 can not be enforced." He refers to the decision of the court of errors 
 in New York, i Caine's Cases in Error, as settling the law in that state. 
 
 Gibson, J., concurred, replying to the argument (which has been 
 urged in this case), that prepayment was a condition which might be 
 waived, it being intended only for the benefit of the corporation. He 
 
 1 11 Am. Dec. 593.
 
 5l8 TAGGART V. WESTERN MARYLAND R. CO. I I/ 
 
 asks, "What was the consideration for the charter? Undoubtedly the 
 benefit which was expected to result to the public, not the profit that 
 might be made by the stockholders. The state, therefore, was a 
 party, and had an interest in preventing the scheme from being 
 turned into a bubble," etc., Hibernia Turnpike Co. v. Henderson, 
 8 Serg. & R. p. 225. "The design of the deposit was to prevent the 
 subscription list from being filled with the names of nominal stock- 
 holders and the creatures of others." Id. 226. * * * 
 
 "Every contract, where the consideration is promise for promises 
 must be obligatory on both parties, or both will be at liberty to recede 
 and the promise which is the consideration of that on which the action is 
 brought, must be such as the plaintiff had power by law to perform. I 
 do not say there was an express promise here that the defendant should 
 enjoy the rights and privileges of a corporator ; but certainly that was 
 understood as being the consideration on which he subscribed. But 
 the company could introduce no one as a member in any other way 
 than that pointed out in the act of incorporation," id. p. 227; "if they 
 could, it would be requisite that the defendant's title should have 
 been good when he subscribed ; otherwise the contract would be with- 
 out mutuality; and if he acquired no right which he could enforce 
 against the will of the plaintiffs, he incurred no responsibility," id. 228. 
 
 In Crocker v. Crane, 21 Wend. 211, the question being whether the 
 commissioners, appointed to open books to receive subscriptions, 
 were authorized to receive checks of subscribers in payment of the 
 sum required to be paid at the time of subscription, Cowan, J., said: 
 "I am, therefore, strongly inclined to the opinion -that the check in 
 question was void, as contrary to the policy of the statute. Nor can. 
 there be any doubt, I imagine, that the contemplated corporation, if I 
 am right as to the facts, failed of going into existence for want of the 
 proper payments as a condition precedent '." Such is the doctrine 
 laid down by Chancellor Lansing, in Jenkins v. Union Turnpike Com- 
 pany, i Caine's Cases in Error 94, and recognized by this court in 
 Goshen Turnpike Co. v. Hurtin, 9 Johns. Rep. 217, and Highland 
 Turnpike Co. v. McKean, u Johns. Rep. 98; Dutchess Cotton 
 Manf'y v. Davis, i4johns. Rep. 238. 
 
 These cases go further ; each subscriber must pay as a condition to 
 his own liability attaching. Payment was a requisite which the com- 
 missioners could not waive. Starr v. Scott, 8 Conn. Rep. 483. 
 
 The case in 21 Vt. Rep. 30, J cited by the appellee, to the contrary, 
 has several peculiar features which distinguish it from the class of 
 cases requiring prepayment of the deposit, as essential to the con- 
 tract. The defendant, in that case, was one of the original associa- 
 tors, and had signed an instrument prior to the act of incorporation, 
 by which the subscribers agreed to take, and did take, the number of 
 snares affixed to their respective names. The defendant subscribed 
 for fifty shares of the stock. The note in question was given for the 
 first $5 payable on each respective share, which was received in set- 
 tlement of the first installment ; by the subscription paper it appears 
 
 1 Vermont C. R. Co. v. Clayes.
 
 II/ CONDITIONAL SUBSCRIPTIONS. 519 
 
 there were several subscribers for stock prior to the defendant, and by 
 the act of incorporation each subscriber per se became a corporator. 
 
 These facts were deemed sufficient to show the corporation was "*' 
 esse at the time of taking the note, and capable of taking the promise 
 through their agents, the commissioners." Upon all these peculiar 
 circumstances, it was held the action on the note was maintainable. 
 
 The learned judge delivering the opinion of the court, though ques- 
 tioning whether the opinion of the supreme court or court of errors, 
 in the case i Caine's Cases 86, was the better opinion, distinguishes 
 that case from the one under his consideration. 
 
 The case in 16 B. Monroe 5, 1 declaring prepayment of the deposit 
 to the commissioners, is not essential to the validity of the subscrip- 
 tion, presents the anomaly of a decision founded on a case previously 
 and notoriously reversed without apparent knowledge of the reversal. 
 The judge in delivering the opinion says: "The decision of the court 
 in the case of the Union Turnpike Company v. Jenkins, i Caine's 
 Rep. 381, sustains the views expressed in this opinion, and it is only 
 the opinion of the dissenting judge that is cited in Angell & Ames on 
 Corporations, and referred to by the counsel for the appellants." He 
 seems wholly unaware that the opinion of the dissenting judge had 
 been affirmed by the court of errors, and that of the majority of the 
 supreme court on which he relied, overruled. 
 
 The 2Oth 111. 656, 2 deciding in the same way, relies only on 16 B. 
 Monroe 5 and 21 Vt. Rep. 30, which we have before shown was 
 marked by very peculiar features, distinguishing it from the Union 
 Turnpike Company v. Jenkins, and therefore not in point. 
 
 The case in iyth Ohio 191 3 cited to the same point by the appellee 
 is a mere dictum, sustained by neither authority nor reason. 
 
 It would appear from this comparison of the cases cited, that Jen- 
 kins v. the Union Turnpike Company, i Caine's Cases 86, has not 
 been overruled, or abandoned in principle, in succeeding cases within 
 the same category; but it has been questioned, criticised and departed 
 from, where the facts would warrant a departure. 
 
 It is still recognized as a leading case, not only in the state of New 
 York, but in several other states, with such weight of authority and 
 reason as commands our respect in similar cases. 
 
 If not expressly adopted in this state, it has been referred to in 
 terms which recognized the principles on which it was decided as 
 properly applied under the circumstances. 
 
 In the case of Elysville Manufacturing Co. v. Okisko Company 4 it 
 was objected that the appellant had no power under its charter to 
 subscribe to the stock of the appellee, and if it had, the one before the 
 court was not binding, because at the time of the subscription, the 
 cash payment was not made. In support of the latter proposition the 
 case i Caine's Rep. 381 5 was relied on, This court said that case is 
 
 1 Wight v. Shelby R. Co., 63 Am. Dec. 522, infra, p. 536. 
 
 2 Illinois R. Co. v. Zimmer. 
 
 3 Henry v. Verrnillion & A. R. 
 4 o \IfLlol. 
 
 5 Union Turnp. Co. v. Jenkins.
 
 $20 TAGGART V. WESTERN MARYLAND R. CO. I 17 
 
 clearly distinguishable from the one before us. There, no payment 
 was made either at the time of subscription or thereafter by the per- 
 son whom it was attempted to make responsible on his subscription, 
 while here the whole amount of the subscription was paid; in other 
 words, it is a completely executed contract. In the case referred to, 
 the court evidently founded their decision on the want of mutuality. 
 "The subscriber, not having paid in conformity with the authorized 
 terms of the subscription, could not have compelled the transfer of the 
 stock to himself, he not having in any way, in part or in whole, per- 
 formed the contract." 5 Md. Rep. 159. 
 
 The preponderance of authority in favor of a strict compliance 
 with the provisions of the charter, in cases of subscription, prior to 
 the organization of the company, is such as is not to be disregarded. 
 This court has said, ''there is no doubt that in general a strict com- 
 pliance must be shown with the provisions of the charter, but in some 
 cases a compliance will be presumed and in others it may be -waived." 
 16 Md. Rep. 444.^ The distinction between subscriptions prior and 
 subseqjieut to organization is clearly recognized in 9 Md. Rep. 568, * 
 in this language: 
 
 ''Commissioners are appointed to receive subscriptions to stock for 
 the purpose of giving the subscribers a right to organize as a cor- 
 poration under the charter. So soon, however, as the organization 
 takes place, the authority of the commissioners ceases ; and all corpo- 
 rate powers conferred by the charter, vest in the body politic. Such, 
 at least, is the general rule, applying in every case where there is no 
 special provision to the contrary. It was further held, that in that 
 case there were no provisions requiring the corporation after organi- 
 zation, to have subscriptions taken by commissioners and in no other 
 mode. ' ' 
 
 Hence, in this case the corporation being organized by the subscrip- 
 tion of the necessary proportion of stock, and election of officers, suc- 
 ceeded to the power previously vested in the commissioners, to sell and 
 dispose of the remaining shares, without regard to the conditions im- 
 posed on them. The act of the agent taking the subscription, being 
 recognized by the corporation by receiving and registering the sub- 
 scription, among the conditional subscriptions, was equivalent to a 
 previous appointment of the agent for that purpose. 
 
 The objection that the subscription was void because conditional 
 and contrary to public policy is strongly supported by the authority 
 cited by the appellant, i Hill5i8; 3 18 Barbour 318. 4 But these cases 
 turn upon the provisions of the local statutes, and the subscriptions 
 were made to commissioners prior to the formation of the companies, 
 for the most part. The first ground upon which the validity of con- 
 ditional subscriptions has been impeached in the cases before cited, 
 viz., that a contract to be binding must be "concurrent and obliga- 
 tory upon each at the same time" (asdecidedin 18 Barb. 318, supra, 
 
 1 Maltby v. Northwestern Va. R. 
 
 2 Plank R. Co. v. Hoffman. 
 
 8 Butternuts T. Co. v. North, infra, p. 525. 
 * Macedora P. R. Co. v. Lepham.
 
 117 CONDITIONAL SUBSCRIPTIONS. 521 
 
 and 21 Wend. 139 *) has been in more recent cases abandoned, and it 
 is said that such a subscription is a continuing offer until withdrawn. 
 
 But when the offer was accepted the minds of the parties met, and 
 the contract was complete. There was then the meeting of the minds 
 of the parties, which constitutes and is the definition of a contract. 
 The acceptance by the plaintiff constituted a sufficient legal consider- 
 ation for the engagement on the part of the defendants. There was 
 then nothing wanting in order to perfect a valid contract on the part 
 of the defendants. It was precisely the same as if the parties had 
 met at the time of the acceptance, and the offer had then been made 
 and accepted, and the bargain completed at once. Boston & Maine 
 R. v. Bartlett, 3 Cush. 227; Conn. & Pass. R. v. Baily, 24 Vt. Rep. 
 478; Troy Academy v. Nelson, 24 Vt. Rep. 189. 
 
 The second objection, that conditional subscriptions are contrary to 
 public policy, is said to be peculiar to New York, and not followed 
 in other states. Vide Pierce on Railways^ p. 71. In 15 B. Monroe, 
 235,* the court finds the power of the corporation to accept such con- 
 ditional subscriptions under the clause of the charter of the company 
 in that case, authorizing the president and directors to dispose of their 
 unsubscribed stock for the benefit of the company, and declares it does 
 not seem to be prohibited by sound policy ; that such construction is 
 sanctioned by general usage under similar provisions in other charters. 
 Vide also, 16 B. Monroe 364, 3 to the same effect. This conclusion 
 seems to follow necessarily, from the doctrine that a conditional sub- 
 scription is but a continuing offer, which is final and absolute when 
 accepted ; all subscriptions becoming thus ultimately unconditiorial 
 and absolute. 
 
 If the corporation after organization may dispose of their stock 
 without limitation, except so far as expressly restrained by their 
 charter, and a conditional agreement when accepted is eqiiivalent 
 to an absolute contract, it would seem a necessary consequence that all 
 contracts for stock in consideration of a particular location, -when 
 complied with by the company, would be as binding on both parties 
 as if the contract had been absolute and unconditional. 
 
 For however adverse to public policy such conditions prior to the 
 formation of the corporation, the location and construction of the 
 road is the peculiar province and duty of the president and directors, 
 and a contract made by them in execution of their corporate power 
 must be presumed to be made in promotion of the public interest, un- 
 less shown to the contrary. * * * 
 
 Judgment affirmed. 
 
 Note. As to theories in regard to payment of deposits, see Boyd v. Peach 
 Bottom R. Co., 90 Pa. St. 169, infra, p. 522 ; Wight v. Shelby R. Co., 16 B. Mon. 
 (Ky.) 4, infra, p. 536 ; Webb v. B. & E. R., 77 Md. 92, infra, p. 528. There is 
 much conflict as to the necessity of paying the statutory depOHit upon sub- 
 scriptions at the time the subscriptions are made. One line of authorities, 
 and perhaps the best, holds that payment is unnecessary, the theory being that 
 
 1 tJtica & S. R. Co. v. Brickerhoff. 
 
 2 McMillan v. Maysville & L. R. Co., 61 Am. Dec. 181. 
 1 Henderson & N. R. Co. v. Leavell.
 
 522 BOYD V. PEACH BOTTOM R. CO. Il8 
 
 the provision is for the benefit of the corporation on!}', and so may be waived 
 by it: 1843, Red River Co. v. Young, 6 Rob. (La.) 39; 1858, Illinois R. Co. 
 v. Zhnmer, 20 111. 654; 1864, Chamberlain v. Painesville, etc., R. Co., 15 O. 
 S. 225; 1874, Minnesota & St. L. R. v. Bassett, 20 Minn. 535; 1882, Pittsburgh 
 W. & K. R. Co. v. Applegate, 21 W. Va. 172; 1893, Bibb v. Hall, 101 Ala. 
 79; 1893, Union Water Co. v. Kean, 52 N. J. Eq. Ill ; 1895, Albright v. Texas, 
 etc., R. 8 N. M. 110, 422, 42 Pac. 73; 1898, Yonkers Gazette Co. v. Taylor, 30 
 App. Div. (N. Y.)334. On the other hand, many other authorities hold ihatpay- 
 ment is necessary, on the theory that the provision is for the protection of the 
 public from "bubble" schemes by irresponsible parties. 1804, Jenkins v. 
 Union T. P. Co., 1 Caines Cas. (N. Y. 86; 1814, Highland T. Co. v. McKean, 
 11 Johns. IN. Y.) 98; 1822, Hibernia T R. Co. v. Henderson, 8 Serg. & R. 
 219, 11 Am. D. 593; 1856, Fiser v. Miss. & T. R. Co., 32 Miss. 359; 1861, Wood 
 v. Coosa, etc., R. Co., 32 Ga. 273; 1880, State Ins. Co. v. Redmond, 3 Fed. 
 R. 764; 1887, Perry v. Hoadley, 19 Abb. N. C. (N. Y.) 76; 1892, Burlington 
 v. Bur. W. Co., 86 Iowa 266; 1896, Gen'l Elec. Co. v. Wiehtman, 3 App. Div. 
 (N. Y) 118; 1896, First Nat'l Bank v. Cornell, 8 App. Div. (N. Y. > 427. See, 
 also, Beach, 515; Boone, 112; Clark, 116; Cook, 172-5; Elliott, 355; 
 Morawetz, 71-2, 739, 742-3; Taylor, ' 98, 516; I Thompson, 1216-32. 
 
 vV 
 
 
 Sec. 118. Same, (i) Prior to incorporation, theories: 
 (#) Subscription valid, condition void. 
 BOYD v. PEACH BOTTOM RAILWAY CO. 1 
 
 1879. IN THE SUPREME COURT OF PENNSYLVANIA. 90 Pa. St. 
 
 Rep. 169-172. 
 
 May 6, 1879. Before SHARSWOOD, C. J. ; MERCUR, GORDON, 
 PAXSON, WOODWARD, TURNKEY and STERRETT, JJ. 
 
 Error to the court of common pleas of Lancaster county, of May 
 term, 1879, No. 58. 
 
 Assumpsit by the Peach Bottom Railway Co. v. Samuel Boyd, 
 on a subscription to the capital stock of said company. The com- 
 pany was incorporated by the act of March 24. 1868, Pamph. L. 778, 
 with all the powers and subject to all the restrictions prescribed by the 
 act regulating railroads, enacted February 19, 1849. The proviso 
 to the first section of the latter act is as follows: 
 
 "Provided, altvays, That no subscription for such stock shall be 
 valid unless the party or parties making the same shall, at the time of 
 subscribing, pay to the said commissioners $5 on each and every share 
 subscribed, for the use of the company." 
 
 Commissioners were named in the act of incorporation to open 
 books, receive subscriptions and organize the company. At the trial 
 the plaintiff offered in evidence a subscription book, in form as follows : 
 
 "We, the undersigned, agree with one and another and bind our- 
 selves, our heirs, executors and administrators to the Peach Bottom 
 Railroad Company to the number of shares of stock set opposite our 
 respective names in the capital stock of said company, provided- the 
 
 1 Arguments omitted.
 
 IlS CONDITIONAL SUBSCRIPTIONS. 523 
 
 road be constructed upon what is known as the Northern route, con- 
 necting with Philadelphia and Baltimore Central Railroad at Oxford, 
 Chester county, and passing near Hopewell, Pine Grove, White Rock, 
 King's Bridge, Smedley's Mill, Centreville, Chestnut Level and along 
 Fishing creek to its mouth, and provided these subscriptions be spent 
 on the east side of the Susquehanna river. * * * Samuel Boyd, 
 two shares." 
 
 There was no evidence to show that the defendant had signed his 
 name thereto. The signature produced was in ink. 
 
 John A. Alexander, the treasurer of the company, called by the 
 plaintiff, testified: "The name, as it first appeared there, was in 
 leadpencil ; there was a number of names written in leadpencil, and 
 they were becoming defaced by carrying the book in my pocket, and 
 I afterward wrote them in ink over the pencil marks." He further 
 said: "I went to Mr. Boyd's on the 29th of October, 1870, and told 
 him that, to secure our letters-patent, it was necesary for the commis- 
 sioners to certify to the governor that 10 per cent, of the subscriptions 
 were paid in; that we, not collecting any money, and, as the work 
 had not yet begun, were taking demand notes; Mr. Boyd gave 
 me his demand note for 10 per cent, of his two shares of stock, and I 
 gave him a receipt for the same. 
 
 This note was delivered, by Mr. Alexander, to the commissioners, 
 and they afterward certified to the governor a list of subscribers, 
 including the name of Samuel Boyd for two shares. Letters-patent 
 were issued to the company, in which he appeared for two shares. 
 Whether Samuel Boyd wrote the leadpencil name or not was not 
 shown. 
 
 He never paid any money on this alleged subscription, nor did he 
 ever pay said note or any part of it. The subscription produced con- 
 tained a condition that the road should be built on a particular route. 
 It was not built on this route, but on an entirely different one. The 
 original route would have been of great advantage to Boyd, while the 
 one on which the road was built was of no benefit to him. 
 
 The defendants offered no evidence, but asked for a nonsuit, which 
 the court, Patterson, J., refused and directed a verdict for plaintiff. 
 The defendant took this writ, alleging that the court erred: First, in 
 overruling the motion for a nonsuit, and, second, in directing the jury 
 to find for plaintiff. 
 
 MR. Justice STERRETT delivered the opinion of the court, June 16, 
 1879. 
 
 The commissioners appointed to open books and receive subscrip- 
 tions to the capital stock of the defendant in error were public agents, 
 clothed with limited powers and duties of a purely ministerial charac- 
 ter, clearly defined by law. By the act of March 24, 1868, incorpo- 
 rating the company, it was invested with all the powers, and made 
 subject to all the provisions and restrictions prescribed by the general 
 act of 1849, regulating railroad companies. One of these provisions 
 is that no subscription shall be valid unless the party making the same 
 shall, at the time of subscribing, pay the commissioners $5 on each
 
 524 BO YD V. PEACH BOTTOM R. CO. Il8 
 
 and every share, for the use of the company. The language is plain 
 and emphatic, and the manifest object of the requirement was to pro- 
 tect the public against fictitious corporations, with capital stock sub- 
 scribed perhaps by irresponsible persons, and not a dollar thereof paid 
 or intended to be paid in. The commissioners, acting as ministerial 
 agents of the public, before the issuing of letters patent, had no au- 
 thority whatever to dispense with the actual payment of the required 
 sum. Giving a note for the amount was not payment within the 
 meaning of the law. In Leighty v. The Turnpike Co., 14 S. & R. 
 434, under a similar charter, it was held that actual payment in money 
 was required. The doctrine of that case, for reasons given at length 
 in the opinion, is sound, and should be adhered to. A demand note, 
 such as was given by the plaintiff in error in this case, is not money; 
 it is only a promise to pay money at a future time, and perhaps may 
 never be complied with. 
 
 The testimony was quite sufficient to establish the fact of defend- 
 ant's subscription, on which the suit was based. Afterwards, when 
 the book was presented to him by Mr. Alexander, he impliedly ad- 
 mitted the subscription, by giving his note for the 10 per cent, which 
 should have been paid in cash, but this was before the letters-patent 
 were obtained. 
 
 The conditional feature of the subscription furnished no ground 
 of defense. // is scarcely necessary to repeat what has been so often 
 said that a subscription to the stock of a public corporation, made be- 
 fore letters-patent are issued and an organization effected, must be 
 considered absolute and , tinqualijied ', and any condition attached 
 thereto void. Commissioners have no authority to receive conditional 
 subscriptions. If they do, the subscription itself is valid and bind- 
 ing, and the condition null and void. Caley v. The Railroad Co., 
 30 P. F. Smith 367. 
 
 The only available defense presented in the court below was the 
 non-payment of the 10 per cent, required by the act; and it was tech- 
 nical, rather than meritorious. Aside from making the subscription, 
 in the first instance, and afterward giving his note for the 10 per cent, 
 when called on by the collector, the plaintiff in error appears to have 
 been entirely passive. If he had acted as commissioner or director, 
 or participated in stockholders' meeting, or performed any act recog- 
 nizing his membership of the company, or tending to fasten liability 
 on other subscribers, he should be held to the payment of his subscrip- 
 tion, notwithstanding the failure of the commissioners to exact the 
 payment requifed by law to make it valid and binding; but he ap- 
 pears to have stood aloof and did nothing, by which he was estopped 
 from insisting on the technical defense which he has seen fit to inter- 
 pose. Legally, he is entitled to the benefit of it; and the second 
 and third assignments of error must be sustained 
 
 Judgment reversed.
 
 119 CONDITIONAL SUBSCRIPTIONS. 52$ 
 
 Sec. 119. Same. Prior, to incorporation : 
 
 (^) Subscription and condition both void. 
 BUTTERNUTS AND OXFORD TURNPIKE COMPANY v. NORTH. 
 
 1841. IN THE SUPREME COURT OF NEW YORK, i Hill's (N. Y.) 
 
 Reports 518-519. 
 
 Error from the Chenango common pleas. The action was upon a 
 subscription for stock of the plaintiffs, containing an engagement to 
 take stock "upon condition that said road shall be laid by Fayette 
 village and Guildford Centre." The commissioners for receiving 
 subscriptions had obtained several signatures to this, and also to an- 
 other absolute in its terms. The court below held that the defendant's 
 signature to the subscription in question did not bind him, and non- 
 suited the plaintiffs. They excepted, and after judgment in the court 
 below, sued out a writ of error. 
 
 By the court, COWETST, J. Subscriptions for stock under the turnpike 
 act (i R. S. $81, 2ded.) to which the plaintiffs were subject, Sess. 
 L. of 1834, p. 137, * must be absolute. This act confers no power to 
 make conditions, and to allow such a thing would be contrary to pub- 
 lic policy. Divers men would, perhaps, have their divers routes, and 
 endeavor improperly to influence the course of the road. If the gen- 
 eral subscription should contain a condition of this kind, there would 
 be no stockholders till the road should be laid out accordingly, and 
 separate subscriptions containing various conditions might work a 
 fraud upon those who subscribed absolutely. The court below de- 
 cided correctly. 
 
 Judgment affirmed. 
 
 Note. To same effect. 1871, People v. Chambers et al., 42 Cal. 201. (Pay- 
 ment by check insufficient, must be by cash.) 
 
 1 The act provided : Sec. 2. Each of the persons, who shall be named 
 ' as a commissioner for receiving subscriptions, shall furnish himself 
 with a book for that purpose, which shall be kept open for two years, unless 
 one-sixth of the whole number of shares shall be sooner subscribed. Sec. 3. 
 Each subscriber shall pay to the commissioners receiving his subscription, 
 and at the time, on each share that he shall subscribe one-tenth of the sum 
 fixed in the act of incorporation as the amount of one share. * Sec. 4. 
 
 Provided that as soon as one-sixth of the whole number of shares shall have 
 been subscribed, the commissioners shall call a meeting for election of di- 
 rectors. Sec. 5. That commissioners .should preside, and the subscribers 
 present, or their proxies, by plurality of votes shall elect directors. Sec. 6. 
 The commissioners shall then deliver subscription books to directors and pay 
 over money.
 
 526 ARMSTRONG V. KARSHNER. 12O 
 
 Sec. 120. Same. (2) After incorporation. Theories: 
 () Valid contract, to await time of performance. 
 ARMSTRONG v. KARSHNER. 1 
 
 1890. IN THE SUPREME COURT OF OHIO. 47 Ohio St. Rep. 
 
 276-30 
 
 [Suit by Karshner to enforce payment of a subscription which had 
 been assigned to plaintiff for construction of the railroad mentioned 
 in the subscription. The subscription was as follows: 
 
 "We, the undersigned, agree to pay the number of shares annexed 
 to our respective names, of fifty dollars each, to the capital stock of 
 the Cincinnati, Hocking Valley and Huntington Railway Company, 
 and we hereby bind ourselves, our heirs, executors or administrators 
 to pay the same to the authorized agent of said company ; but it is 
 expressly provided as follows: That no part of said subscription 
 shall be due until a railroad track shall be laid ready for the running 
 of cars from some point of the Scioto Valley Railroad to a point at 
 or near Adelphi, in Ross county, and when said railroad track is so 
 laid, we, the undersigned, mutually agree that we will each, on de- 
 mand, pay the amounts set opposite our respective names to such 
 authorized agent of said company in full payment for such shares of 
 capital stock. 
 
 "Names. October, 1881, No. of shares. Amount. 
 
 "It is distinctly agreed and understood that all the within stock sub- 
 scriptions are binding, providing the road is built on the north of 
 Adelphi, otherwise they are void. 
 
 "Ten shares, $50 each, $500. MILTON ARMSTRONG."] 
 
 WILLIAMS, J. * * * The principal question in the case arises from 
 the second defense, the substance of which is, that the defendant's sub- 
 scription is a conditional one, and, at the time it was made, the capi- 
 tal stock of the company had been increased, and actual bona fide 
 subscriptions to the amount of 20 per centum of the capital stock, 
 so increased, had not then been obtained, nor had 10 per centum 
 of such capital stock been expended in the construction of the road. 
 
 The claim is, that the railroad company had no corporate power to 
 receive the defendant's subscription, because it had not then obtained 
 unconditional subscriptions to the amount of 20 per centum of its cap- 
 ital stock, or expended 10 per centum of its authorized capital in the 
 construction of its road. This claim is based upon section 3298 of the 
 Revised Statutes, which provides : "The directors of a company which 
 has expended in the construction of its road 10 per centum of its au- 
 thorized capital and has obtained actual bona fide subscriptions to its 
 capital stock to the amount of at least 20 per centum thereof, may 
 receive subscriptions to its capital stock, payable in such installments, 
 dependent upon the completion of the whole or any part of its road so 
 that cars may .pass over the same, as its directors may deem expedi- 
 
 1 Only so much of the opinion is given as relates to the character of the 
 subscription.
 
 120 CONDITIONAL SUBSCRIPTIONS. $27 
 
 ent, and upon full payment thereof may issue certificates of stock 
 therefor." 
 
 Unless restrained by statute, corporations may receive conditional 
 subscriptions to their stock at any time after their actual incorpora- 
 tion. "A conditional subscription to stock, taken and accepted by a 
 corporation after its incorporation, is legal by the common law of all 
 the states." Cook on Stock and Stockholders, 82. And it is said by 
 White, J., in Ashtabula and New Lisbon R. Co. v. Smith, 15 Ohio 
 St. -336, that, "Except in New York, conditional subscriptions, in the 
 absence of a special prohibition, so far as we have observed, have been 
 sustained, as authorized, and not in conflict with public policy. 
 
 No special prohibition is found in section 3298 against a railroad 
 corporation receiving conditional subscriptions. The most that can 
 be claimed from the section is that, it having specified the cases in 
 which such conditional subscriptions may be received, there is want 
 of authority to receive them otherwise than as therein provided. If 
 this be admitted, does it necessarily follow that a subscription not in 
 all respects in conformity to the statute may not be enforced? "The 
 rule seems well established," says Boynton, J., in Hays v. Galena 
 Gaslight and Coal Co., 29 Ohio St. 340, "that where a contract has 
 been executed and fully performed, on the part either of the corpora- 
 tion or of the other contracting party, neither will be permitted to 
 insist that the contract and such performance by one party were not 
 within the corporate power of the company." 
 
 Generally, after the acceptance by the corporation of a conditional 
 subscription -which it is authorized to take, the subscriber is bound 
 until performance of the condition to await such performance; he 
 can not nvithdraiv the subscription unless the performance is unrea- 
 sonably delayed. Cook on Stock and Stockholders, 84. But a con- 
 ditional subscription, which is not a present valid contract, may be a 
 continuing offer to subscribe upon the specified conditions, and when 
 those conditions are performed, if the offer be not before withdrawn, 
 it may then become an absolute and unconditional subscription. The 
 difference between the two classes of subscriptions is that the former 
 becomes binding when accepted, and the latter only when the condi- 
 tion is performed, and it may, at any time before then, be withdrawn. 
 If not so withdrawn, it becomes an absolute subscription. In Ash- 
 tabula and New Lisbon R. Co. v. Smith, supra, White, J. , speaking 
 of the conditional subscription to the capital stock of the railroad com- 
 pany involved in that case, and the effect of the performance of the 
 conditions by the company, said : "The subscription was designed as, 
 and was in fact, a standing or continuing proposition, upon which the 
 plaintiff was not expected to act until the time arrived for the final 
 location of its road. Having been delivered for this purpose, and 
 acted on by the plaintiff, after the condition has been complied with, 
 it became an absolute subscription." In the case of The Mansfield, 
 Coldwater and Lake Michigan R. Co. v. Stout, 26 Ohio St. 254, it 
 is said by Mcllvaine, J. : "There has been some contention whether 
 the instrument sued on is to be regarded as a subscription of stock,
 
 528 WEBB V. BALTIMORE, ETC., R. CO. 121 
 
 subject to a condition precedent, or as a mere offer to subscribe, when 
 the conditions named might be performed. This question we deem to 
 be immaterial in this case, as there is no pretense that the offer, if a 
 mere offer it be, was at any time withdrawn. The important question 
 is, have the conditions been performed?" 
 
 The conditions expressed in the defendant's subscription, it is al- 
 leged in the petition, were fully performed, and upon this no issue is 
 raised by the answer. If it be conceded, therefore, that the instru- 
 ment executed by the defendant was not, by reason of the provisions 
 of the statute, a valid and binding subscription to the capital stock 
 when subscribed and delivered to the company, it was, at least, a 
 continuing offer to pay the amount stipulated upon the performance 
 of the conditions therein specified ; and, while the defendant at any 
 time before such performance might have withdrawn his offer, he did 
 not, and the conditions having been fully complied with by the railroad 
 company, he can not now, we think, defend against the payment of 
 the subscription on that ground that the company was without corpo- 
 rate authority to receive it. It is not important whether the subscrip- 
 tion is enforced on the ground that on the performance of the condi- 
 tions it became an unconditional subscription, or on the ground of es- 
 toppel. The legal result is the same. 
 
 Affirmed. 
 
 Note. See citations supra, 116, p. 514. 
 
 Sec. 121. Same. After incorporation. 
 
 ($) Mere offer until performance. 
 WEBB v. THE BALTIMORE AND EASTERN SHORE R. CO. 
 
 1893. IN THE COURT OF APPEALS OF MARYLAND. 77 Md. Rep. 
 92-99, 39 Am. St. Rep. 396, 26 Atl. Rep. 113. 
 
 Appeal from the circuit court of Dorchester county. 
 
 The case is stated in the opinion of the court. 
 
 The cause \vas argued before ALVEY, C. J., ROBINSON, BRYAN, 
 FOWLER, PAGE, MCHERRY and BRISCOE, JJ. 
 
 ALVEY, C. J., delivered the opinion of the court. 
 
 This action was brought to recover of the defendant for certain 
 stock subscribed in the plaintiff company. The declaration contains 
 several of the common indebitatiis counts, but the fifth count is special, 
 and it alleges that the defendant subscribed for and agreed to take 
 twenty shares of the capital stock of the plaintiff company, and to 
 pay $1.000 therefor on the completion of the railroad of the company 
 to the town of Vienna, Md., and that, although the said railroad has 
 long since been completed to the said town of Vienna, and that the 
 said subscription is due and demandable, the defendant has not paid 
 the same., or any part thereof. By the pleas, the defendant denied 
 the legal existence of the contract alleged, or that he was in any man- 
 ner bound thereby.
 
 121 CONDITIONAL SUBSCRIPTIONS. 529 
 
 The questions presented on this appeal are simply as to the aclmis- 
 sibility of evidence and are presented by two bills of exception taken 
 by the defendant. 
 
 At the trial it was admitted that the plaintiff was a corporation, 
 duly organized and existing under the laws of the state, and that the 
 plaintiff had constructed its railroad from Easton Bay, in Talbot 
 county, to the town of Vienna, in Dorchester county, before the ist 
 of January, 1891 ; and that, in the construction of its road the plaint- 
 iff had expended large sums of money, and created a large indebted- 
 ness, still outstanding at the time of this suit brought, to wit, the 1 2th 
 day of August, 1891. It was also admitted that before this was 
 brought, the defendant received from the secretary of the plaintiff, a 
 letter calling on him to pay the money alleged to be due on the stock, 
 and, further, that before the bringing of this suit neither the plaintiff, 
 nor any one on its behalf, ever offered or tendered the certificates for 
 the stock subscribed for by the defendant. The plaintiff then offered 
 in evidence a subscription book, purporting to be a subscription book 
 for the stock of the plaintiff, and proved by an agent of the company, 
 to whom the book had been intrusted to procure subscriptions, that it 
 was the subscription book of the plaintiff, and that the entry in that 
 book, to which the name of the defendant was subscribed, was made 
 and signed by the defendant. In that book there is this heading: 
 "We, the undersigned, agree to subscribe to and pay for the number 
 of shares of the capital stock of the Baltimore and Eastern Shore 
 Railroad Company, set opposite our names, provided the said road 
 shall be built on the Vienna route ; said shares of stock to be of the 
 par value of $50, and the same to be paid for on installments of twenty 
 per cent, as any ten miles of road are completed." This heading had 
 appended to it about sixty signatures ; and then follows this entry : 
 
 "I hereby agree to take twenty shares of the Baltimore and Eastern 
 Shore Railroad Company stock when completed to Vienna. 
 
 "$1,000.00. ALBERT WEBB." 
 
 To the offer of this subscription book, with the entry therein signed 
 by the defendant, the latter objected, and in support of his objection 
 has assigned several grounds: First, that there was no evidence of a 
 tender of certificates of stock to the defendant, and that this suit could 
 not be maintained without such tender, and that the subscription was 
 invalid because the statutory installment was not paid. Secondly, 
 that there was no contract of a present subscription for stock, but, at 
 most, nothing more than a mere promise to subscribe when the road 
 was completed to Vienna. Thirdly, that if the entry signed by the 
 defendant be treated as a present subscription to stock, the contract is 
 within the provisions of the Statute of Frauds, 29 Car. n, ch. 3, 17, 
 and that it is fatally defective in omitting to name the vendor of the 
 stock, and that there is no sufficient consideration for the defendant's 
 undertaking shown on the face of the subscription paper. There is 
 also a general objection taken to the admissibility of the subscription 
 
 34 WIL. CASES.
 
 530 WEBB V. BALTIMORE, ETC., R. CO. 121 
 
 book in evidence. The objection to the admissibility of the evidence 
 was overruled. 
 
 In the opinion of this court none of the grounds assigned in support 
 of the objection taken can be sustained. 
 
 1. There is clearly no valid ground for the objection that the cer- 
 tificates for the stock should have been tendered to the defendant as a 
 condition precedent to the right to maintain this action for the money 
 due on the subscription. This would seem to be well settled, i 
 Mor. on Corp., 61, and cases there cited. Scarlett v. Academy of 
 Music, 43 Md. 203. Nor is the objection well taken that the subscrip- 
 tion is not binding upon the defendant because it is not shown that an 
 installment of $5 in cash on each share of stock subscribed had been 
 paid at the time of making the subscription, under section 163 of article 
 23 of the code. The omission of such payment does not invalidate 
 the subscription. That construction of this provision of the statute 
 has been settled by the decision of this court, in the case of Oler v. 
 Baltimore and Randallstown Railroad Co., 41 Md. 583. And with 
 respect to the necessity for showing that the amount of the subscrip- 
 tion had been called for by the directors of the company, before suit 
 brought, it was admitted that the defendant had received a letter, be- 
 fore suit brought, purporting to be from the secretary of the plaintiff, 
 calling upon him to pay the money due on the stock, as being then 
 due, but that payment was refused. Whether that call or demand 
 was made by the authority of the directors of the company, was a 
 question of fact for the jury, upon all the evidence in the case. 
 
 2. The subscription in the form in which it was made was inchoate 
 and conditional. It was such, however, as the company had a right 
 to accept. Taggart v. The West Maryland Railroad Company, 24 
 Md. 595 ; Phil. & West Chester Railroad Co. v. Hickman, 28 Pa. 
 St. 318. It -was simply a conditional offer by the defendant to be- 
 come a stockholder after the condition specified had been performed 
 by the company. The performance of the condition precedent on the 
 part of the company tvas necessary to a valid acceptance of the offer 
 thus made by the subscriber ; and before this acceptance, by the per- 
 formance of the condition precedent, the defendant did not, by vir- 
 tue of such subscription, become a member of the company . His sub- 
 scription was a mere offer, and unless -withdrawn before the condi- 
 tion performed by the company, it became final and absolute immedi- 
 ately upon the performance of the condition; or, as -was said by this 
 court in Taggart v. West Maryland Railroad Co., supra, such con- 
 ditional subscription, upon the performance of the condition, thus 
 became ultimately an unconditional and absohite subscription. And 
 that being the effect and operation of the subscription made by the de- 
 fendant, it is quite clear that no other or further act of subscription was 
 necessary, or contemplated by the parties in order to convert the original 
 conditional subscription into an unconditional and absolute subscription. 
 The defendant appears to have declined the conditional terms em- 
 braced in the heading of the preceding subscriptions, which required 
 the amount of the subscriptions to be paid in installments of twenty
 
 121 CONDITIONAL SUBSCRIPTIONS. 531 
 
 per cent, as any ten miles of the road should be completed ; and he 
 preferred to make his subscription separate, and to make it depend 
 upon the completion of the road to Vienna ; and when the road was 
 so made, which is admitted to have been done before this action was 
 brought, the subscription of the defendant for the twenty shares of 
 stock became absolute, and the price therefor thence became payable 
 on demand of the directors of the company. This is the clear import 
 of the subscription of the defendant. No particular form of subscrip- 
 tion is made essential, and the present subscription is not of a 
 formal character, yet there is enough in the paper, when read in con- 
 nection with what precedes it in the same book, to show what was 
 really intended by the parties to the contract. 
 
 3. The contention that this contract of subscription is within the 
 statute of frauds, 29 Chas. II, ch. 3, 17, is not maintainable, either 
 upon reason or authority. A subscription for shares of stock in an 
 ordinary corporation, is not a contract for the sale of "goods, -wares 
 and merchandise' ' ; "words which comprehend only corporeal movable 
 property. Shares of stock are but choses inaction, and are not within 
 statute ; and this is the established construction of the statute by the 
 English courts, as shown by the collection of cases by Mr. Benjamin 
 in his admirable work on Sales, pp. 90-91 ; and the same construction 
 has been adopted by decisions of high authority in this country, 
 (Browne on Statutes of Frauds, 298 ; Ang. & Ames on Corp., 563 ; 
 Clark v. Burnham, 2 Story C. C. Rep. 15) though there are some de- 
 cisions, especially of an earlier date, entitled to great respect, to the 
 contrary. In the absence of a binding authority, such as an express 
 decision of this court, we are not disposed to adopt and follow the de- 
 cisions of the American courts, holding that the statute does apply in 
 such cases, being as they are in conflict with the English courts upon 
 this subject. We think the English decisions furnish the better and 
 more reasonable construction of the statute. 
 
 In the case of Colvin v. Williams, 3 H. & J. 38, x the only case in 
 this state supposed to give any support to the contention of the de- 
 fendant, the question presented was quite different from that presented 
 in this case. In that case there was a sale of bank stock by a broker, 
 and the broker became the agent of both seller and buyer, and in 
 whose name as vendor a memorandum of sale was made out and de- 
 livered to the defendant, who filled up the blank in the memorandum 
 with the number of shares he desired, and accepted the same as pur- 
 chaser of the number of shares sold. Upon this memorandum the 
 court below held the plaintiff to be entitled to recover ; and upon ap- 
 peal, this court held the court below right in its ruling, and affirmed 
 the judgment. There was no opinion delivered ; but it is stated at the 
 conclusion of the case, whether by the authority of the court or by the 
 reporters of the case without such authority, does not appear, that it 
 was said by the court "that the sale of bank stock is within the statute 
 of frauds; and that the broker was the common agent of both the ap- 
 pellee and appellant." If such was the case, as we must take it to 
 
 5 Am. Dec. 417.
 
 532 RAILROAD V. PARKS. 122 
 
 be, it is very clear that the declaration made at the conclusion of the 
 case, "that the sale of bank stock was within the statute of frauds," 
 was wholly unnecessary to the decision of the case, and was purely a 
 dictum, if in fact it be assumed to have emanated from the court at 
 all. The statute did not avail as a defense to the defendant, if it was 
 in fact relied on as a defense, which does not appear to have been the 
 case. There have been many cases since that decision in which such 
 defense could have been taken, if the statute was applicable in such 
 cases as this, but which passed without question as to the application 
 of the statute. 
 
 Upon both exceptions, therefore, we are of opinion that the court 
 below was correct in its rulings, and that the judgment appealed from 
 should be affirmed. 
 
 Judgment affirmed. 
 
 -Vote. See citations, supra, 116, p. 514. As to statute of frauds, see 1898, 
 Rogers v. Burr. 105 Ga. 432, 70 Am. St. Rep. 50, and note, supra, p. 459. 
 
 Sec. 122. Subscriptions may be upon conditions precedent or sub- 
 sequent. 
 
 RAILROAD (PADUCAH AXD MEMPHIS) v. PARKS. 1 
 
 1888. IN THE SUPREME COURT OF TEXXESSEE. 86 Tenn. Rep. 
 554-565, 8 S. W. Rep. 842. 
 
 Appeal in error from circuit court of Dyer county, T. J. Flip- 
 pin, J. 
 
 LURTOX, J. These four suits at law against subscribers to the stock 
 of the Paducah and Memphis Railroad Company were tried by con- 
 sent together, and, a jury being waived, the issues of law and fact 
 were submitted to the circuit judge, who has filed his special findings 
 of fact and law as part of the record. There was a judgment in favor 
 of each of the defendants, and an appeal by the plaintiffs. 
 
 The contract of subscription upon which the suit was brought was 
 as follows: 
 
 "July 31. 1872. We, the subscribers, agree and bind ourselves, 
 our heirs and legal representatives, to pay to the Paducah and Mem- 
 phis Railroad Company the sums by us subscribed, to be stock in said 
 railroad company, upon the following terms and conditions, to wit : 
 One-fourth to be paid when the. road is completed to the north or 
 south line of Dyer county, the remainder of the amount subscribed to 
 be paid in four equal installments of four months, as the work pro- 
 gresses through the countv : Provided. The company establish a depot 
 on said road within fifteen hundred feet of G. B. Tinsley's corner store, 
 supposed to be the center of Xewbern. It is further provided that 
 certificates of stock issue to said subscribers as to other stockholders 
 in said company, upon the pavment of their subscription." 
 
 The proof shows that there was a gap in the line of a road pro- 
 jected between Paducah, Ky., and Memphis. Tenn., each end of the 
 
 1 Part of opinion, upon other points, omitted.
 
 122 CONDITIONAL SUBSCRIPTIONS. 533 
 
 road being in operation and owned by different companies. The new 
 company was the result of the consolidation of the two old companies, 
 and it undertook the completion of the missing link. Dyer county, 
 of which Xewbern is a flourishing village, would be crossed by the 
 finished road. 
 
 The assignments of errors are so defective as to raise no question 
 of fact, but the second assignment is sufficient to raise a question of 
 law. We have, therefore, treated the facts as found by the circuit 
 judge as the facts of the case, and will test the soundness of the result 
 he reached by the law applicable. The facts necessary to be stated, 
 as found by his Honor, are as follows: 
 
 "That work was commenced on said unfinished part of the road 
 early in 1872, and the Dyer county line was reached on the north in 
 April, 1873, and on the 28th of that month it ran its train of cars into 
 Trimble Station, in said county. On the I5th of May thereafter, the 
 company made a call for one-fourth of the subscription, according to 
 contract." This call, together with the second and third calls, were 
 likewise paid by each of the defendants. "The company did work 
 on the road in Dyer county until the last of July or first of August, 
 1874, at which time it ceased operations and work of all sort. The 
 work principally done in Dyer county was between Dyersburg and 
 Trimble Station ; the road was mostly graded, or a great deal of it, 
 from Trimble Station to Newbern, and between Newbern and Dyers- 
 burg, and in places bridges were constructed, and cross-ties were col- 
 lected in one or more places to be placed on the road. The road was 
 widened at the place where the depot now stands (in Newbern) as if 
 for side track, but the company owned no property or land outside 
 of the right of way upon which a depot could be located." 
 
 He further held that the proof did not show any further prepara- 
 tions for the establishment of a depot at Newbern than the widening 
 of the grade at that point for side-track purposes. He further found 
 that shortly after cessation of work in August, 1874, foreclosure pro- 
 ceedings were instituted by bond creditors, and the property and fran- 
 chises of the corporation sold at public sale, and acquired by the 
 Chesapeake and Ohio Railroad Company, and this company, being 
 an entirely new and independent organization, has since finished the 
 projected road through Dyer county. That to induce location of depot 
 at Newbern, citizens of that place had been compelled to make a new 
 contract with the successor company, who had assumed none of the 
 contracts or liabilities of the old company. He further found that the 
 old corporation was utterly insolvent at the time it abandoned work, 
 and that at the time of trial it had no property, franchises, and prac- 
 tically no existence. 
 
 The subscription list was accepted by the Paducah and Memphis 
 Railroad Company, and on the i2th of September, 1873, after pay- 
 ment of first call by subscribers, was assigned to Childs. Stephens & 
 Co., contractors for work in Dyer county, in part payment for work 
 done and to be done by them. The suit is by these assignees and 
 creditors of the insolvent company. Three of the suits are for the
 
 534 RAILROAD V. PARKS. 122 
 
 fourth call, which matured in May, 1874, and before work had ceased, 
 and the fourth defendant is sued alone upon the fifth and last call, 
 which did not mature, in point of time, until September, 1874, which 
 was after all effort to complete the road had been abandoned. The 
 question is as to whether defendants are liable for any of the unpaid 
 calls. His honor, the circuit judge, was of opinion that the con- 
 struction of the road to the line of the county was a condition precedent 
 to any liability, and that this condition had been met. He was further 
 of opinion that the stipulation requiring the establishment of a depot 
 at Newbern was an independent provision, and not a condition prece- 
 dent to liability upon the contract of subscription. This latter pro- 
 vision, he held, required and meant the erection of a depot building, 
 with reasonable facilities for freight and passengers. Upon these 
 facts, and upon the contract as thus construed, the circuit judge held 
 that, although the stipulation as to a depot was not a condition prece- 
 dent, yet it was a part of the agreement of the corporation which, at 
 some reasonable time, it was bound to carry out, and that as it was 
 now obvious that the utter insolvency of the company, and the sale 
 of its property and franchises, had rendered the performance of this 
 contract impossible, that it, therefore, followed that the defendants 
 were released from liability upon their stock, both as to calls accruing 
 before and after the abandonment of work upon the road. 
 
 In this conclusion we think he erred. If it be conceded that the 
 proviso concerning a depot at Newbern is not a condition precedent, 
 as his honor does, then it must follow that a breach of an independ- 
 ent covenant will not discharge the other party of the contract, but 
 that the party damaged by such breach must rely upon his remedy at 
 law for damages, or his remedy in equity, by bill for a specific per- 
 formance. Such breach will not defeat a right of action upon those 
 parts of the contract not dependent upon it. Before such right of 
 action for a breach of this covenant arose the stock list was assigned 
 to creditors of the company, and hence such breach can not, as against 
 such assignees, be set up to defeat or abate their legal right of recovery. 
 If the construction of a depot had been made a condition precedent to 
 the subscription, or to liability for calls upon stock, then it would de- 
 volve upon plaintiff to show performance of such precedent condition ; 
 but, on the other hand, if the parties have not chosen to make respon- 
 sibility depend upon performance of this stipulation, then, clearly, de- 
 fendants must rely upon their independent remedy against the com- 
 pany. 
 
 We agree with his honor that this proviso as to a depot was not a 
 condition precedent, but a mere independent stipulation. 
 
 The capital of stock companies consist of their stock subscriptions. 
 This is the basis of credit, and an essential to organization. This is 
 a trust-fund for the benefit of creditors in case of insolvency. Condi- 
 tional subscriptions to the stock of corporations are tmusual, and 
 often operate to defeat subscribers who become such absolutely and 
 upon the faith that all the stock is equally bound to contribiite to the 
 hazards of the enterprise. It misleads creditors, and is the fruit-
 
 122 CONDITIONAL SUBSCRIPTIONS. 535 
 
 ful source of litigation and disaster. Tending to the ensnarement 
 of creditors, and contrary to a sound public policy, conditional sub- 
 scriptions to corporate shares ought not to be encouraged. Their va- 
 lidity, however, is too firmly fixed by a long line of decisions, to be 
 now overturned, yet the courts will not strain, where creditors are 
 concerned, to convert independent covenants into conditions precedent. 
 It a subscriber desires to make his liability depend upon the perfor- 
 mance of some stipulation by the corporation, it is very easy for him 
 to do so in express terms. In the case now under consideration, it is 
 obvious that the subscribers did not intend to make the building of a 
 depot at Newbern a condition upon which their liability should de- 
 pend. They expressly provide that one-fourth of their subscriptions 
 shall fall due when the line of the road is completed to the county line. 
 
 Now, this was a condition precedent, but when it was complied 
 with the subscription became absolute, and one-fourth payable at once, 
 and the remainder as the work progressed through the county, in four 
 installments, four months apart. Now, a depot at Newbern would 
 be folly without a railroad in operation, and every installment might 
 fall due by lapse of time and continued work within the county, before 
 a depot would be of any practical value. The fact that the first call 
 became payable when the road reached the county line, settles the 
 meaning attached to this stipulation. The acts stipulated to be done 
 are to be done at different times. Hence they are independent of 
 each other, and the remedy of the subscriber for breach of such a stip- 
 ulation is in damages. Goldsborough v. Orr, 8 Wheat. 217. 
 
 The defendants have pressed upon us the case of Railroad v. Curtis, 
 80 N. Y. 219, s. c. i Eng. and Am. Railroad Cases, as sustaining 
 the conclusion of the circuit judge. 
 
 This case has been carefully examined, and we are of opinion that 
 it in no way supports the contention of defendants. The contract in 
 that case was one between subscribers, whereby they agreed to become 
 subscribers to the stock of the railroad company upon certain condi- 
 tions. They did not, as held by the court in that case, become share- 
 holders in prcesenti, but only pledged themselves to one another to 
 thereafter subscribe, and upon condition that the road should be actu- 
 ally constructed by the Lake Shore Company through the town of 
 Farmer. The court held that the actual building of the road by the 
 Lake Shore Company was a condition precedent, and that this condi- 
 tion had never been complied with. 
 
 The case of N. & N. W. R. Co. v. Jones, 2 Cold. 574, is likewise 
 relied upon. It decides nothing that is in conflict with our view of 
 this case. That case was action by the company against the sub- 
 scriber who had subscribed upon the express stipulation that his sub- 
 scription should be void unless the road was constructed upon a cer- 
 tain line. The directors did locate the road upon the agreed line, but 
 afterwards abandoned this line and constructed the road upon a to- 
 tally different line. This court properly held that, by the very terms 
 of the subscription, it became void by this action of the company. 
 
 The view we have taken as to the construction of this contract, and
 
 536 WIGHT V. SHELBY R. CO. 123 
 
 the effect of the insolvency of the company upon the stipulation as to 
 a depot at Newbern, is supported by a number of well-considered 
 cases in the courts of other states. 
 
 Berryman v. Trustees, Southern Railway, 14 Bush 755 ; Winkler 
 v. Railroad, 29 Mo. 218; McMillen v. Railroad, 15 B. Monroe 218; 
 Swartwout v. Railroad, 24 Mich. 389 ; Miller v. Railroad, 40 Pa. St. 
 237; Chambenain v. Railroad, 15 Ohio St. 225. 
 
 This brings us to a consideration of the question as to whether a 
 suit for the last installment of these stock subscriptions can be now 
 maintained. The subscription provided for the maturity of the calls 
 subsequent to the first in the following language : 
 
 "The remainder of the amount subscribed to be paid in four equal 
 installments of four months, as the work on the road progressed 
 through the county." The work was progressing at the time the 
 second, third and fourth calls were made, and there can be no doubt 
 but that they were rightfully called and properly demanded. But 
 when the last installment was called all work had been abandoned and 
 has never been since resumed. We are of opinion that this last in- 
 stallment has never matured. The requirement that the calls subse- 
 quent to the first should be made in equal installments "as the work 
 progressed through the county," is a condition precedent to the ma- 
 turity of each installment; and the abandonment of the work before 
 it was finished, and before, in a point of time, the last call could 
 have been made if the work had been carried on in good faith, de- 
 feats the action of this installment. No right to call for or sue upon . 
 this installment exists by reason of the failure of the company to show 
 that the road was finished, or work going on, within the county at the 
 time it was demanded. The objection is made by defendants that 
 these suits can not be maintained because no tender of stock certifi- 
 cates has been made. 
 
 This assignment of error is not tenable. This is not a case of the 
 purchase of stock certificates as negotiable securities. The tender in 
 such a case might be necessary to maintain suit for the price. But no 
 tender is necessary to maintain suit upon an ordinary subscription for 
 stock. Morawetz on Corporations, 61 and 148 (2d ed.). * * * 
 
 Judgments as to Parks and Harris reversed. 
 
 Note. See citations, 116, supra, p. 514. 
 
 Sec. 123. Conditional delivery of subscriptions. Escrows, the- 
 ories of: 
 
 (#) Delivery can not be to company's agent. 
 
 WIGHT v. SHELBY RAILROAD COMPANY. 1 
 
 1855. IN THE COURT OF APPEALS OF KENTUCKY. 16 B. Mon. 
 (Ky.) Reports, 4-8, 63 Am. Dec. 522. 
 
 Judge SIMPSON delivered the opinion of the court. 
 
 As the same questions are involved in both these cases, and as the 
 
 1 Part of opinion on other points omitted.
 
 123 SUBSCRIPTIONS IN ESCROW. 537 
 
 -validity of the defense presented in both, has to be examined in each 
 case, we will proceed to consider and decide such questions as arise 
 upon the record in either case. 
 
 The defense relied upon by Wight, that the subscription of stock 
 made by him was left with one of the commissioners in the nature of 
 an escrow, is wholly invalid. The commissioners were the persons 
 appointed by the charter to receive and accept subscriptions of stock, 
 a subscription received by them, even if such a writing could, under 
 any circumstances, be made to assume the nature and attributes of an 
 escrow, could not take that character, inasmuch as, when it was re- 
 ceived by them, it became just as obligatory on the party making it 
 as a promissory note would be upon the maker who left it with the 
 payee, or his agent. The -well-settled doctrine is that to make awrit- 
 ing an escrow merely, it must be placed in the hands of a third -per- 
 son by the party making it, to be delivered to the other party, on the 
 happening of a specified contingency. Here the subscribers were the 
 parties on one side, and the commissioners on the other. A sub- 
 scription when made and received by the commissioners could not, 
 therefore, be a mere escrow, but became in law an absolute under- 
 taking for the payment of the stock subscribed according to the pro- 
 visions of the charter. 
 
 So far as the defendants, or either of them, alleged that their sub- 
 scription was conditional, and was not to be obligatory upon them, 
 unless the road was located on a certain route, it is only necessary to 
 remark that, the contract being in writing, parol proof is inadmis- 
 sible to alter its terms or to show that, instead of being absolute, 
 as it purports to be, it was in reality conditional. The subscribers 
 might have annexed a condition to the terms of their subscriptions, if 
 they had thought proper to do so, and it would then have been with 
 the commissioners to determine whether such conditional subscrip- 
 tions of stock would be received; but, not having done so, they can 
 not, according to the well-established doctrine on the subject, allege 
 or prove that the contract was different from that which is evidenced 
 by the writing, unless they can establish fraud or mistake in its execu- 
 tion. * * * 
 
 The failure to pay the sum of $i on each share of stock subscribed 
 can not certainly be relied upon by the subscribers as exonerating 
 them from their liability for their subscriptions. // was their d-uty to pay 
 it at the time the stock was subscribed, but they should not be allowed 
 to take advantage of their own wrong, and release themselves from 
 their whole obligation by a failure to perform a part of it. Even 
 if the commissioners might have refused to receive the stock, unless 
 the payment had been made, yet, as they did not do it, the contract 
 was, after the stock had been received without the payment, binding 
 upon both sides. 
 
 The decision of the court in the case of the Union Turnpike v. Jenkins, 
 I Caine's Reports 381, sustains the views expressed in this opinion, 
 and it is only the opinion of the dissenting judge that is cited in Angell 
 & Ames on Corporations, and referred to by the counsel for the ap- 
 pellants.
 
 538 CASS V. PITTSBURGH, ETC., R. CO. 124 
 
 The decisions of the Massachusetts courts, on some of the questions 
 involved in these cases, have not been followed by this court. 
 
 In our opinion none of the defenses presented by either of the ap- 
 pellants was a sufficient answer to the plaintiff's action. 
 
 Wherefore, the judgment in both cases is affirmed. 
 
 Note. See note at end of next case. 
 
 Sec. 124. Same. 
 
 (^) Delivery may be to company's agent. 
 
 CASS v. PITTSBURGH, VIRGINIA AND CHARLESTON RAIL- 
 WAY CO. 1 
 
 1875. IN THE SUPREME COURT OF PENNSYLVANIA. 80 Pa. St. Rep. 
 
 31-38. 
 
 MR. JUSTICE SHARSWOOD delivered the opinion of the court May 
 29, 1876. 
 
 The subscription of the plaintiff in error to the stock of the defend- 
 ants was upon condition "that in the judgment of the board of di- 
 rectors of said company a sufficient amount is subscribed to the cap- 
 ital stock of said company on or before the first day of April, 1871, to 
 grade and bridge the road, including the right of way from South 
 Pittsburgh to West Brownsville." The board of directors, on the 
 first day of April, 1871, passed a resolution, "that, in the judgment 
 of this board, the conditions named are fully complied with ; that suf- 
 ficient stock has been subscribed to grade and bridge the road, includ- 
 ing the right of way from South Pittsburgh to West Brownsville. " * * * 
 
 The third assignment of error is to the rejection of an offer to prove, 
 in substance, that the agent of the defendants by whom the subscrip- 
 tion had been procured before it was reported to or accepted by the 
 company, at the request of the plaintiff, agreed to hold back the sub- 
 scription until he should authorize him to hand it to the company, and 
 that afterward a third person, not a member of the board, obtained 
 possession of the paper, under pretense of merely wishing to look at 
 it, put it into his pocket,' and without consent of the agent or defend- 
 ant, delivered it to the company. We think this evidence ought to 
 have been received. It is true, as a general rule, that delivery of a 
 bond or deed as an escrow can not be made to the obligee or grantee. 
 That principle, however, does not apply in this case. When a de- 
 livery of an absolute deed is made to the party, his acceptance is 
 presumed prima facie, because it is for his benefit. Then subse- 
 quent acceptance relates to the first delivery. So it might have been 
 now, had the subscription been absolute, but it is different when the 
 condition imposes a burden upon the other party. He must then ex- 
 pressly or impliedly accept before the contract becomes completely 
 binding on both parties. When such contract is made with an agent 
 
 J 0nly the part of opinion relating to the one point given.
 
 125 SUBSCRIPTIONS INDUCED BY FRAUD. 539 
 
 he may well agree to hold it as an escrow. Until both sides agree, if 
 irrevocable by one it must be also by the other. Martin, the agent, 
 had no authority to accept the conditions, and was not incapacitated 
 from making such an agreement by his relation to the company. 
 Reversed. 
 
 Note. See, also, 1889, Minneapolis Threshing Machine Co. v. Davis, 40 
 Minn. 11 J, mpra, p. 492; 1897, Oilman v. Gross, 97 Wis. 224; 23 Am. & Eng. 
 Ency., p. 790; Beach, 510; Clark, 113; Cook, 60; Elliott, 357; Mora- 
 wetz, 69, 851 ; II Thompson, 1253. 
 
 ARTICLE V. FRAUD AND MISTAKE IN SUBSCRIPTIONS. 
 
 Sec. 125. Fraud. 
 
 MARTIN ET AL. v. SOUTH SALEM LAND Co. ET AL.> 
 
 1896. IN THE SUPREME COURT OF APPEALS OF VIRGINIA. 94 Va. 
 Rep. 28-59, 6 Am - & En g- Cor P- Cas - ( N - S.) 312. 
 
 [Suit by various parties against the land company, among others 
 being one by the Bank of Salem, a judgment creditor suing on behalf 
 of itself and others, the land company and its stockholders to en- 
 force their stockholders' liability for unpaid stock. Many of the 
 stockholders answered that their subscriptions had been obtained 
 fraudulently, and they had promptly repudiated them, and asked to 
 have them rescinded. Decree of a pro rata assessment against the 
 stockholders to pay the debts was rendered, from which an appeal 
 was taken.] 
 
 BUCHANAN, J. * * * Another ground on which the appellants 
 claim that they are not liable for their subscription contracts is, that they 
 were induced to become subscribers by the false and fraudulent rep- 
 resentations of the company or its agents. One of the false and 
 fraudulent representations which it is alleged was made to certain of 
 the appellants was, that there was no promoter's fund except $10,000 
 of the paid-up stock of the company, when, in fact, two of the pro- 
 moters of the scheme, Crabtree and Bowman, were to receive the sum 
 of $20.000 additional, in money, and that they did receive the greater 
 part thereof. To others it was represented that among the subscrib- 
 ers to the stock of the company were two well-known business men, of 
 much experience and large wealth, when, in fact, one of them had 
 made no subscription at all, and the other had subscribed for a much 
 less sum than was represented. And to others still both these repre- 
 sentations were made. 
 
 If it be assumed that these representations were made and relied 
 on; that they were not true, and were sufficient to entitle the appel- 
 lants to have their contracts rescinded, and the money paid by them 
 refunded, as between themselves and the Land Company, did they 
 
 1 Statement of facts abridged, arguments omitted and the part of the opin- 
 ion relating to the one point only given.
 
 54O MARTIN V. SOUTH SALEM LAND CO. 125 
 
 show themselves entitled to such relief as against the creditors of the 
 Land Company, whose debts were decreed to be paid in the court 
 below? 
 
 It appears that a meeting of the stockholders had been called for 
 the i yth of May, 1892, to consider the affairs of the company. A 
 majority of the stock not being represented on that day, a committee 
 was appointed to prepare a statement in regard to its affairs, and the 
 secretary was instructed to send a copy of that statement to each stock- 
 holder, and urge him to be present at an adjourned meeting of the 
 company, to be held on the pth of June, following. Pursuant to that 
 resolution, the following statement was prepared and sent to the 
 stockholders : 
 
 "A CIRCULAR OF INFORMATION FOR STOCKHOLDERS OF THE SOUTH 
 SALEM LAND COMPANY." 
 
 "The following is a copy of the prospectus under which the stock 
 to the South Salem Land Company was subscribed : 
 
 "The South Salem Land Company, of Salem, Virginia, owns 306 
 acres of land, lying on the east side of the Salem Development Com- 
 pany, south of the Salem Improvement Company, and southwest of 
 the Riverside Land Company, and is known as the Colonel Jack 
 farm. 
 
 "This land cost the company $81,200 in cash, and $10,000 in 
 paid-up stock. The capital stock of the company is $300,000, di- 
 vided into shares of $10 each, only $250,000 of which shall be issued 
 unless necessary for the special betterment of the land in the future, 
 and $10,000 of which is the paid-up stock referred to above. It is 
 proposed to sell $240,000 of the stock on the following terms: Ten 
 per cent, payable on March 20, and ten per cent, on April 20, 1890, 
 and ten per cent, payable on March 20, 1891. It is guaranteed that 
 only the above-named assessments will be made. 
 
 "We, the undersigned, subscribe to the amounts opposite our 
 names upon the above-named conditions. 
 
 "Under the above prospectus subscription lists were sent by the sev- 
 eral agents for the whole amount of the $240,000 stock, but only on 
 19,541 shares have the three assessments been nearly all paid. On 
 the remaining 5,088 shares on the list nothing has been paid, and the 
 stock advertised and offered for sale was withdrawn for want of bid- 
 ders. While every effort will be made to collect, it is found that a 
 large per cent, of the lists is insolvent. If we had $3 per share on 
 those shares, this amount, $15,440, would be sufficient for our neces- 
 sities, and enable us to carry on the affairs of the company suc- 
 cessfully. 
 
 "We now absolutely need about $12,000 for present pressing 
 dues. If this amount can not be raised now, a forced trustee's sale 
 of the property will be the inevitable result. 
 
 "The stockholders can not be further assessed by the company, un- 
 less the stockholders themselves vote to make the assessment. 
 
 "A single ten per cent, assessment would relieve the condition of 
 things now and secure the stockholders further advantages.
 
 125 SUBSCRIPTIONS INDUCED BY FRAUD. 541 
 
 "Be sure to come or send your proxy to the meeting. 
 
 "Salem, Va., June i, 1892." 
 
 The indebtedness of the land company at that time was more than 
 $40,000. Its assets, independent of its stock subscriptions, consisted 
 of the tract of land mentioned in the prospectus, which, it seems, had 
 never been assessed for the purposes of taxation at more than $18,000, 
 and which, when sold in December, 1893, only brought $10,000, and 
 upon a resale in February, 1894, $9,000. Upon its stock subscrip- 
 tions, on which no part of the 30 per cent, called for had been paid, 
 there was a little over $15,000 due, but the larger part of it was due 
 from insolvent parties. There was also a small balance due from 
 stockholders belonging to the class who had made payments on their 
 stock subscriptions. The land company was not only unable to meet 
 its debts as they became due, but assets were altogether insufficient to 
 pay its liabilities. Unless the stockholders were willing to make ad- 
 ditional payments upon their stock, which the company admitted it 
 had no right to call for under its guarantee to them, the land of 
 the company, which was its principal asset, and the development and 
 sale of which was the chief object of its creation, would be sold at a 
 trustee's sale for the residue of the purchase price. 
 
 No provisions having been made by the company or its stockholders 
 to meet the indebtedness, the trustee gave notice that he would, on 
 the i8th day of August, 1892, sell the land. On the loth of that 
 month the sale was enjoined by an order entered in the case of the 
 South Salem Land Co. v. Hansbrough, Trustee, etc. The bill in 
 that case did not claim that the debt for which the land was adver- 
 tised to be sold was not just, due or unpaid, but alleged that there 
 were clouds upon its title which ought to be removed before sale, and 
 that the notice of sale was not in conformity with the provisions of the 
 deed of trust. 
 
 At the October term following of the circuit court, two judgments 
 were rendered against the land company, one in favor of the Bank of 
 Salem, and the other in favor of the Pittsburg Bridge Company, for 
 sums aggregating more than $11,000. Upon these judgments execu- 
 tions were issued and returned "no property found." 
 
 In December of the same year the Bank of Salem and the bridge 
 company instituted suit against the land company and its stockholders 
 for the purpose of subjecting its assets, including the unpaid subscrip- 
 tion of its stockholders, to the payment of their debts and the debts 
 of the other creditors of the company who would come in and con- 
 tribute to the expenses of the suit. 
 
 In that case the appellants (except in three cases, which will be 
 hereafter considered) for the first time took steps to have their sub- 
 scription contracts rescinded. 
 
 A party who has been induced to subscribe for stock in a corpo- 
 ration by false or fraudulent representations as to a material fact upon 
 which he had the right to rely, and did rely, is entitled to have the 
 contract rescinded in the same manner as if the question had arisen 
 between two natural persons, provided the question arises between
 
 542 MARTIN V. SOUTH SALEM LAND CO. 125 
 
 the contracting parties and the rights of third persons are not in- 
 volved, i Morawetz on Corporations, 108; 2 Thompson on 
 Corporations, 1361 ; i Cook on Stock and Stockholders, etc., 
 151-161. 
 
 A contract procured by a fraud is not void, but voidable only, at the 
 option of the party defrauded. It is binding upon him until rescinded, 
 and, if before he exercises the option to rescind, innocent third par- 
 ties have, in reliance of the fraudulent contract, acquired rights which 
 would be prejudiced by its rescission, they may generally have it en- 
 forced for their benefit, although the party by whose fraud it was pro- 
 cured could not do so. Oakes v. Turquand, etc. (House of Lords), 
 2 English and Irish Appeal Cases, L. R. 325 ; Tennent v. City of 
 Glascow (House of Lords), 4 Appeal Cases, L. R. 615 ; 2 Thomp- 
 son on Corporations, 1363; 2 Morawetz on Corporations, 839. 
 
 This principle is founded in reason and justice. If one of two in- 
 nocent persons must suffer from the misconduct of a third, the burden 
 must fall upon the one whose conduct enabled the third person to 
 perpetuate the wrong complained of. 
 
 If a person is induced by fraud to sell his property, and it passes 
 into the hands of an innocent purchaser for value before his contract 
 by which he sold has been rescinded, he must bear the loss rather than 
 the innocent purchaser. 
 
 In an ordinary partnership it is impossible for one partner to retire 
 from or to repudiate the partnership to the prejudice of the partner- 
 ship creditors. He may have been induced to enter into the partner- 
 ship by the false or fraudulent representations of the other partners, 
 and this may be a sufficient ground for relief against them, but it is 
 no ground for getting rid of the firm's liabilities to its creditors. 
 
 The shareholders in a corporation are the real parties in interest. 
 They furnish the capital and receive the profits. As was said by Mr. 
 Justice Miller, in Sawyer v. Hoag, 17 Wall. 610, the corporation "is 
 but the representative of its stockholders, and exists mainly for their 
 benefit, and is governed and controlled by them through officers 
 whom they elect, and the interest and power of legal control of each 
 shareholder is in exact proportion to his amount of stock." 
 
 In the case of Oakes v. Turquand, etc., cited above, it was held 
 by the House of Lords that, after the winding up of a joint stock com- 
 pany had commenced, a stockholder could not have his contract re- 
 scinded for fraud in its procurement. The decision was based upon 
 the ground that innocent third parties acquired rights which would be 
 defeated by the rescission. In that case the decision of Lord Camp- 
 bell, in Henderson v. Royal British Bank (7 E. & B. 356), was ap- 
 proved. Lord Campbell said in that case: "This is an application by 
 a creditor, who, upon the faith of the party who was then a share- 
 holder, and who held himself out to the world as a shareholder, and, 
 being one, gave credit to the bank. He has obtained judgment 
 against the bank. There was no assets of the bank as a company, 
 and the application now is that execution may issue against the party 
 individually. It would be monstrous to say that he, having become a
 
 125 SUBSCRIPTIONS INDUCED BY FRAUD. 543 
 
 partner and a shareholder, and having held himself out to the world 
 as such, and having so remained until the concern stopped payment, 
 could, by repudiating the shares on the ground that he had been de- 
 frauded, make himself no longer a shareholder, and thus get rid of 
 his liability to the creditors of the bank, who had given credit to it 
 upon the faith that he was a shareholder. It would be a monstrous 
 injustice, and contrary to all principle." Tennent v. City of Glascow 
 Bank, 4 Appeal Cases (H. L.) 615; Stone v. City and County 
 Bank, 3 C. P. Div. 282; Wright's Case, L. R. 7 Chy. 60; Pugh & 
 Sharman's Case, L. R. 13 Eq. 572; 2 Thompson on Corp., 1441, 
 1442 ; i Cook on Stock and Stockholders, 163. 
 
 In this country, in the absence of statutory provisions upon the sub- 
 ject, the rule seems to be, says Morawetz, in his work on Corpora- 
 tions, "that a shareholder whose contract of subscription was obtained 
 by fraud would be liable to contribute his share of the capital upon 
 the insolvency of the company, so far as 1 this may be required, in 
 order to satisfy those creditors whose claims attached before he elected 
 to disaffirm the contract." Section 840. 
 
 Thompson says: "It may be concluded from a number of Ameri- 
 can cases that no rescission will be allowed after the bankruptcy or in- 
 solvency of the corporation has supervened unless under very excep- 
 tional circumstances, if at all; and further, that the fact that the 
 stockholder was induced to take stock by false representations is no 
 defense in an action by judgment-creditors of the corporation on his 
 statutory liability." 2 Thompson on Corp., 1450. 
 
 Cook says upon this subject: "In this country the effect of corpo- 
 rate insolvency upon the right of a subscriber to rescind his contract 
 for fraud has not been passed upon as often as in England. The de- 
 cisions, however, clearly hold that corporate insolvency is a bar to 
 such rescission." i Cook on Stocks & Stockholders, 163, 164. 
 
 The decisions of the courts, we think, sustain the doctrine laid 
 down in the text-books, that a person who has. to all external appear- 
 ances, become a stockholder, can not, as to creditors who may have 
 trusted the company upon the faith of his membership, have his con- 
 tract of subscription rescinded upon the ground of fraud, where he did 
 not repudiate the contract and take steps to have it rescinded before 
 the company stopped payment and became actually insolvent; cer- 
 tainly not, where it does not appear that he was diligent in discovering 
 the fraud, and prompt in repudiating his contract after it was discov- 
 ered. Upton v. Tribilcock, 91 U. S. 45 ; Webster v. Upton, 91 U. S. 
 65; Sanger v. Upton, 91 U. S. 56; Chubb v. Upton, 95 U. S. 665; 
 Ogilvie v. Knox Ins. Co., 22 How. 380; Tennent v. City of Glascow 
 Bank, 4 Appeal Cases (H. L.), 615; Turner v. Granger, etc., 
 (Ga.), 38 Am. Rep. Soi ; Howard v. Glenn (Ga.), n S. E. 610; 
 Saffold v. Barnes, 39 Miss. 399; Duffield v. Barnum, 59 Mich. 272. 
 
 Before the appellants had repudiated their contracts the land com- 
 pany was insolvent. It was insolvent, whether that word be used in 
 its restricted sense to indicate the inability of an individual to pay his 
 debts as they become due in the ordinary course of business, or in its
 
 544 MARTIN V. SOUTH SALEM L.AND CO. 125 
 
 general or popular meaning, to denote that the entire assets of a 
 debtor are insufficient to pay his debts. Toof v. Martin, 13 Wall. 
 40. Not only was this true, but its real estate had been advertised 
 for sale for the purchase-money yet due upon it, which was more than 
 it was worth. Judgments had been obtained against the company, 
 as before stated, executions issued and returned "no property found," 
 and a creditor's bill filed to subject its assets to the payment of its 
 debts, in which it was alleged that independent of its unpaid stock 
 subscriptions (which the company admitted it had no right to collect, 
 except so much of the thirty per cent, called for as remained unpaid) 
 the company was insolvent. This was more than two years and a 
 half after their subscriptions had been made. The excuse given for 
 this delay is that they did not discover the fraud complained of ear- 
 lier. There is nothing in the evidence to show that any diligence was 
 exercised by them to discover whether the alleged false representa- 
 tions made to them were true or not. 
 
 It is not sufficient in a case like this, where the rights of creditors 
 are involved, that a stockholder should be prompt in repudiating his 
 contract of subscription and in seeking to have it rescinded after the 
 fraud had been discovered, but he must be diligent also in discover- 
 ing the fraud. Where a party has the means of knowledge or dis- 
 covery in his power, he will be deemed to know all that with ordi- 
 nary care and diligence he might have obtained knowledge of. A 
 delay which might be of no consequence in an ordinary case, may be 
 amply sufficient to bar the title to relief where the property is of a 
 speculative character, or is subject to contingencies, or where the 
 rights and liabilities of third parties have been in the meantime varied. 
 Parties, it is said, who are in the position of shareholders in compan- 
 ies, if they come to the court to be relieved from their shares on the 
 ground of fraud, must come with the utmost diligence and prompti- 
 tude. Kerr on Fraud & Mistake, 306, etc.; Morawetz on Corp., 
 108, 839; Chubb v. Upton, 95 U. S. 665; Upton v. .Tribilcock. 
 91 U. S. 45; II Thompson on Corp., 1438, etc. * * * 
 
 Affirmed. 
 
 Note. As to subscriptions obtained by fraud, see, 1852, Connecticut, etc., 
 R. Co. v. Bailey, 24 Vt. 465; 1856, Hester v. Memphis, etc., R. Co., 32 Miss. 
 378; 1859, Anderson v. New Castle, etc., R. Co., 12 Ind. 376, 74 Am. Dec. 
 218; 1867, Central R. Co. v. Kisch, L. R. 2 H. L. 99; 1867, Oakes v. Tur- 
 quand, L. R. 2 H. L. 325 ; 1869, Smith v. Reese River Co., L. R. 4 H. L. 64 ; 1874, 
 Upton v. Englehart, 3 Dill. (C. C. U. S.) 496; 1875, Upton v. Tribilcock, 91 
 U. S. 45; 1877, Getty v. Devlin, 70 N. Y. 504; .1878; Vreeland v. N. J. Stone 
 Co., 29 N. J. Eq. 188; 1878, Jewett v. R. Co., 34 Ohio St. 601; 1883, City 
 Bank v. Bartlett, 71 Ga. 797; 1884. Mont. S. R. Co. v. Matthews, 77 Ala. 357; 
 1893, Howard v. Turner, 155 Pa. St. 349; 1893, Ramsey v. Mfg. Co., 116 Mo. 
 313 ; 1896, Hunter v. French, etc., Co., 96 Iowa 573 ; 1896, Newton Nat'l Bank v. 
 Newzegin, 74 Fed. Rep. 135, 33 L. R. A. 727 ; 1897, Chicago Bldg. & Mfg. Co. v. 
 Summerour, 101 Ga. 820; 1897, Garrison v. Electrical Works, 55 N. J. Eq. 
 708; 1898, Barcus v. Gates, 89 Fed. Rep. 783, 32 C. C. A. 337; 1898, Franey 
 v. Park Co., 99 Wis. 40; 1898, Reyener v. Hnbbard, 56 N. Y. Sup. 173; 1898, 
 Re International Soc., etc., 1 Ch.'llO, 77 L. T. R. 523. Compare, 1849, Dodg- 
 son's Case, 3 De G. & S. 85; 1865, Felgate's Case, 2 De G. J. & S. 456; 1869, 
 Custar v. Titusville Gas & W. Co., 63 Pa. St. 381; 1880, Turner v. Ins. Co.,
 
 126 SUBSCRIPTION MADE BY MISTAKE. 545 
 
 65 Ga. 649; 1895, St. John's, etc., Co. v. Hunger, 106 Mich. 90; 1897, Trades- 
 man's Nat'l Bank v. Looney, 99 Tenn. 278, 38 L. R. A. 837. 
 
 See, also, Boone, 111 ; Beach, 109, 163; Clark, 101 ; Cook, 136-170; 
 Elliott, 369-376; Morawetz, 94-117; Taylor, 103,523-26; II Thomp- 
 son, 1360-1506 ; VII Thompson, 8635-40. 
 
 Sec. 126. Mistake. 
 
 ROCKFORD, ROCK ISLAND AND ST. LOUIS R CO. v. SHUNICK. 1 
 1872. IN THE SUPREME COURT OF ILLINOIS. 65 111. Rep. 223-230. 
 
 MR. JUSTICE MCALLISTER. This was a proceeding instituted by 
 appellant to condemn the lands of the appellee for the uses of a rail- 
 road. The land was situated in the township of Spring Grove, War- 
 ren county, and this appeal is from the judgment of the circuit court 
 of that county in favor of appellee for compensation and damages on 
 account of land taken and damaged. 
 
 To defeat appellee's right to compensation and damages, appel- 
 lant introduced in evidence on the trial a certain instrument in writ- 
 ing, to which appellant was only a beneficial party, if any, purport- 
 ing to have been executed by fifty-seven persons, including the ap- 
 pellee, and embracing two distinct subjects: (i) That of conditional 
 subscription to the stock of appellant's corporation. (2) That of 
 securing to appellant the right of way through said township. 
 
 The part of the instrument relating to subscription has no relevancy 
 whatever to this controversy. But it is claimed by appellant's coun- 
 sel that the other part of the supposed agreement cut off appel- 
 lee's entire claim for either compensation or damages, and this is 
 urged upon the ground of estoppel in pats. 
 
 The terms of this part of the agreement are in substance : That in 
 order that the right of way might be made secure to said company, 
 free of all charge and expense, and that the company might not be 
 delayed in the construction of its line through said township, in con- 
 sideration of one dollar to the undersigned paid, the receipt thereof 
 acknowledged, they, the undersigned, jointly and severally agree to 
 secure to the company, free of charge and expense to the same, the 
 right of way on, over, and across the lands in said township, such 
 right of way to include a strip of land one hundred feet in width, to 
 be described as a strip of land fifty feet in width on each side of the 
 center line of the established survey of said railroad, on, over, and 
 across the lands in said township of Spring Grove. * * * 
 
 The appellant's road was so located as to run through appellee's 
 orchard and a part of his dwelling-house. Appellee, as appears, 
 without controversy, is an unlettered man, being unable to either read 
 or write. While at work in his field he was approached by a man 
 
 1 Only so much of the report is given as relates to the single point. 
 35 WIL. CASES.
 
 546 ROCKFORD, ETC., R. CO. V. SHUNICK. 126 
 
 of the name of Holloway w.ith this paper. Holloway knew that the 
 man was unlettered. He did not read the paper to him, and stated 
 only that part which related to the subscription. He not only did not 
 read or state that part of the instrument relating to the right of 
 way, but assured appellee that he could obtain compensation for his 
 land if taken. Holloway testifies that he signeu 1 appellee's name to 
 the paper by his direction. From this fact appellant's counsel insist 
 that Holloway was appellee's agent, and that being so, appellee could 
 not avail himself of the misrepresentations of his ow r n agent to avoid 
 the instrument. On this ground the court below made an indefinite 
 exclusion of the evidence showing the circumstances under which the 
 paper w r as executed, but refused to give an instruction asked by ap- 
 pellant directing the jury to disregard it, and appellant now complains 
 of such refusal. Holloway does not state when or where he signed 
 appellee's name ; but only that he did it by his direction. It must have 
 been done then and there in the presence of appellee, the latter merely 
 using Holloway's hand, as it were, to write his own name, or at some 
 other time and place, in the absence of appellee, Holloway acting in 
 that behalf upon an alleged authority to make a contract for appellee. 
 If he so acted in executing it, and the instrument itself amount to a 
 contract with appellant, it was one virtually for the sale of an interest 
 in land, and the authority to execute it as agent of appellee should 
 have been in writing. If the name was signed by Holloway in ap- 
 pellee's presence and at his request, then the only reason which could 
 be urged why it was not within the statute of frauds requiring the au- 
 thority of the agent to be in writing, would be that appellee merely 
 employed the hand of Holloway to write his name, and that in such 
 case the doctrine of agency in its legal sense would not apply. But 
 assuming that to be the case, would anybody be heard to contend that 
 although Holloway was not an agent in such sense as would require 
 his authority to be in writing, yet he must be regarded as one to the 
 extent of precluding appellee from setting up his misrepresentation 
 for the purpose of avoiding the instrument in the hands of appellant? 
 We think not. Such a rule would snatch the shield of law from the 
 wronged and bestow it upon the wrong-doer; would take it from the 
 unlettered, who need it most, and give it to those against whom it 
 ought to be used. The appellant could not seek to take the fruits of 
 the contract without adopting the means by which it was obtained. 
 Besides, if the execution of the instrument was obtained in the man- 
 ner disclosed by the evidence, it was void ab initio. It is laid down 
 in Pigot's case, n Rep. -27, that if three distinct bonds are written 
 upon one piece of parchment, and one of them only is read to the 
 obligor, and he, being a man not lettered, seals and delivers this deed, 
 it is good for that which was read, and ab initio void for the others; 
 and it is further said, "that every deed ought to have writing, sealing 
 and delivering, and when anything shall pass from them who had not 
 understanding but by hearing only, it ought to be read also ; and it is 
 true that he who is not lettered is reputed in law as he who can not 
 see, but hear only, and all his understanding is by hearing; and so a
 
 127 SUBSCRIPTION BY INFANTS. 547 
 
 man who is lettered and can not see, is, as to this purpose, taken in 
 law as a man not lettered; and therefore if a man is lettered and is 
 blind, if the deed is read to him in any other manner, he shall avoid 
 the deed, because all his understanding in such case is by hearing." 
 There is nothing in the evidence upon which 'to predicate negligence 
 on the part of the appellee. The mind of the signer did not accom- 
 pany the signature, and the agreement in the particular in question, 
 at least, was void. Leach v. Nichols, 55 111. 273. 
 
 We are of the opinion that the supposed agreement was not suffi- 
 cient in any view to cut off appellee's right to compensation and dam- 
 ages; that substantial justice has been done and that the judgment 
 should be affirmed. 
 
 Judgment affirmed. 
 
 Note. As to mistake of fact, generally, see : 1431, 2 Rolle's Abr. 28, 1. 5, 9 H. 6, 
 596 ; 1506, Keilway's Reports, 70 ; 1584, Throughgood's Case, 2 Co. Rep. 96, 
 1 And. 129, Moore 148; 1808, Putnam v. Sullivan, 4 Mass. 45; 1819, Taylor 
 v. King, 6 Munf. (Va.) 358; 1829, Salem M. D. Co. v. Ropes, 9 Pick. (Mass.) 
 187, 19 Am. D. 363; 1858, Cunningham v. Edgeneld, etc., R. Co., 2 Head (39 
 Tenn.) 23; 1858, Diman v. Providence, etc., R. Co., 5 R. I. 130; 1*63, Swan 
 v. North B. A. Co., 2 Hurls. & C. 175, 32 L. J. R. (N. S.) Exch. 273; 1868, 
 Four Mile Valley R. Co. v. Bailey, 18 Ohio St. 208; 1869, Foster v. McKisson, 
 L. R. 4 C. P. 704, 38 L. J. R. (N. S.) 310; 1870, Leach v. Nichols, 55 111. 273; 
 1871, County of Schuylkill v. Copley, 67 Pa. St. 386; 1871, Rovegno v. Def- 
 ferari, 40 Cal. 459; 1873, Payson v. Withers, 5 Biss. 269; 1877, Gibson v. 
 Pelkie,37 Mich. 380; 1883, Shelton v. Ellis, 70 Ga. 297; 1885, Wood v. Boyn- 
 ton, 64 Wis. 265; 1887, Sherwood v. Walker, 66 Mich. 568; 1888, Hechtv. 
 Batcheller, 147 Mass. 335; 1893, Brintnall v. Briggs, 87 Iowa 538; 1898, Keene 
 v. Demelman, 172 Mass. 17; 1898, Deseret Nat'l Bank v. Burton, 17 Utah 43; 
 1898, Gaffney Mercantile Co. v. Hopkins, 21 Mont. 13 ; 1898, Rogers v. Pattie, 
 96 Va. 498; 1899, Hochstein v. Berghauser, 123 Cal. 681. 
 
 As to mistakes of law, see: 1822, Storrs v. Barker, 6 Johns. Ch. (N. Y.) 
 166, 10 Am. D. 316; 1828, Hunt v. Rousmaniere, 1 Pet. (26 U. S.) 1; 1838, 
 Bank of U. S. v. Daniel, 12 Pet. (37 U. S.) 32; 1845, Trigg v. Read, 5 Humph. 
 (Tenn.) 529, 42 Am. D. 447; 1858, New Albany & S. R. Co. v. Fields, 10 Ind. 
 187; 1860, Goodenow v. Ewer, 16 Cal. 461, 76 Am. D. 540; 1872, Bailey v. 
 Hannibal, etc., R. Co., 17 Wall. (U. S.) 96; 1876, Selma, etc., R. Co. v. Ander- 
 son, 51 Miss. 829; 1895, Loftus v. Fischer, 106 Cal. 616; 1898, Deseret Nat'l 
 Bank v. Burton, 17 Utah 43, 53 Pac. 215. See, also, Beach, 105; Clark, 
 196; Cook, 196; Morawetz, 97; Taylor, 527; II Thompson, 1379, 
 1393, 1719. 
 
 ARTICLE VI. PARTIES TO THE AGREEMENT, 
 n / 
 
 Sec. 127. Infants. 
 
 FOSTER v. CHASE ET AL. 
 
 1896. IN THE UNITED STATES CIRCUIT COURT, DISTRICT OF VER- 
 MONT. 75 Fed. Rep. 797. 
 
 This was a suit in equity by Edwin L. Foster against Henry Chase 
 and others to recover an assessment upon the stock of a national 
 bank.
 
 548 FOSTER V. CHASE. I2/ 
 
 WHEELER, District Judge. The defendant bought stock in the 
 names of his minor children in the First National Bank of Silver City, 
 N. M., of which the plaintiff is receiver, and this suit is brought for 
 an assessment upon it made by the comptroller of the currency. The 
 plaintiff claims that the defendant made himself liable for the assess- 
 ment because of the incapacity of his children to take the stock and 
 make themselves liable for it. He insists that they only are the share- 
 holders, and liable, if any one is. Assent is necessary to becoming a 
 shareholder, subject to this liability, in a national bank. Keyser v. 
 Hitz, 133 U. S. 138, 10 Sup. Ct. 290. Minors do not seem to have 
 anywhere the necessary legal capacity for that. The principles upon 
 which this disability rests are elementary and universal, i Bl. Comm. 
 492 ; 2 Kent Comm. 233. In buying and paying for this stock, and 
 having it placed on the books of the bank, the defendant acted for 
 himself; in having it placed there in the name of his children, as with 
 their assent, he assumed to act for them. As they could not them- 
 selves so assent as to be bound to the liabilities of a shareholder, they 
 could not so authorize him to assent for them as to bind them. To 
 the extent that they could not be bound he acted without legal au- 
 thority, and bound only himself. Story Ag., 280. This liability 
 has been sought for defendant to be likened to that of married women 
 becoming shareholders; but that has been incurred where, and be- 
 cause, the law of the place authorized them to become such. Keyser 
 v. Hitz, supra; Bundy v. Cocke, 128 U. S. 185, 9 Sup. Ct. 242. 
 No law confers that capacity upon infants, but the banking law seems 
 to refer this liability to their estates in the hands of their guardians. 
 Rev. Stat. U. S., 5152. 
 
 Decree for plaintiff. 
 
 Note. Infants as shareholders. In the case of Foster v. Wilson, 75 Fed. 
 Rep. 797, it was held that where the father of a minor had subscribed in the 
 minor's name, the father remained liable upon an assessment made before the 
 minor came of age, though suit for its collection was not begun till after he had 
 become of age and assented to holding the stock. See, 1847, Cork, etc., R. v. 
 Cazenove, 10 Q. B. 935 ; 1849, Newry , etc., R. v. Coombe, 3 Ex. 565 ; 1850, North- 
 western R. Co. v. McMichael, 5 Ex. 114 ; 1852, Dublin, etc., R. Co. v. Black, 8 
 Ex. 181 ; 1868, Robinson v. Weeks, 56 Maine 102 ; 1868, Lurnsden's Case, L. R. 4 
 Ch. 31; 1868, Hart's Case, L. R. 6 Eq. 512; 1869, Castello's Case, L. R. 8 Eq. 
 Cas. 504; 1870, Mitchell's Case, L. R. 9 Eq. Cas. 363; 1870, Symon's Case, 
 L. R. 5 Ch. App. 298; 1870, Weston's Case, L. R. 5 Ch. App. 614; 1870, 
 Ebbett's Case, L. R. 5 Ch. App. 302; 1871, Baker's Case, L. R. 7 Ch. 115; 
 1872, Gooch's Case, L. R. 8 Ch. App. 266; 1876, Re Nassau Phos. Co., L. R. 2 
 Ch. D. 610; 1877, Indianapolis Chair Co. v. Wilcox, 59 Ind. 429; 1886, Crum- 
 mey v. Mills, 40 Hun. (N. Y.) 370; 1886, Hamilton, etc., R. v. Townsend, 13 
 Ont. App. 534, 16 Am. & E. C. C. 645; 1889, Chicago, etc.. Assn. v. Hunt, 127 
 111. 257; 1892, Re Globe Mut. Ben. Assn., 63 Hun. (N. Y.)263; 1892, Re 
 Laxon, etc., Co., 3 Ch. D. 555.' See, also, 10 Am. and Eng. Ency., 634, n. 2; 
 Beach, 128, 138, 303; Clark, 98; Cook, 63, 250; Elliott, 366; Mora- 
 wetz, 855; Taylor, 95,515 n., 586; I Thompson, 1095; II Thompson, 
 1238, 2307, 2493; III Thompson, 3271-4; VII Thompson, 8162, 8708; n. 
 18 Am. St. Rep. 615.
 
 128 SUBSCRIPTION OF MARRIED WOMEN. 549 
 
 Sec. 128. Married women. 
 
 HAHNS & BROS'. APPEAL. 1 
 
 1886. IN THE SUPREME COURT OF PENNSYLVANIA. 15 Am. & 
 Eng. Corp. Cas. 537, 18 Weekly Notes of Cases 294. 
 
 [Appeal by complainants from a decree of the common pleas court 
 dismissing a bill in equity to charge defendant Arndt upon unpaid 
 subscription to the stock of an iron company. The iron company being 
 authorized to increa.se its capital stock, called for subscriptions upon 
 the express condition that .none were to be binding unless $175,000 
 were subscribed. This sum was subscribed, but $1,350 of it were by 
 married women. Dr. Arndt had subscribed for twenty shares, but 
 had paid nothing and attended no meetings.] 
 
 TRUNKEY, J. * * * In this case no fraud is alleged. The subscriptions 
 of the married women were carelessly accepted as valid by those who 
 were active, but Mr. Arndt in no instance was an active party. It does 
 not appear that he knew that the amount of the subscriptions of the mar- 
 ried women was necessary to make up the requisite sum prior to the 
 beginning of this suit. Married women can hold stock and transfer 
 it, but the statute does not empower them to contract to pay for stock. 
 Their subscriptions create no obligations on their part. As to them 
 the contracts are void. * * * 
 
 Affirmed. 
 
 Note. See note to next case, p. 552. 
 
 Sec. 129. Same. 
 
 NATIONAL COMMERCIAL BANK v. McDONNELL. 2 
 
 1890. IN THE SUPREME COURT OF ALABAMA. 92 Ala. Rep. 387- 
 399, 9 So. Rep. 149. 
 
 Appeals from the chancery court of Mobile. 
 
 There are four appeals embraced in this one record all involve 
 similar questions, are included in one cause of action, and are de- 
 cided by one decree of the chancellor. 
 
 The bill was filed by the appellees as creditors, and sought to sub- 
 ject the stockholders of the Alabama Gold Life Insurance Company, 
 an insolvent corporation that had made a general assignment, to a 
 personal liability to the extent of the stock owned by them in said in- 
 solvent corporation. The answers, contentions and accompanying 
 facts, as well as the effect of the decree rendered, are sufficiently 
 shown in the opinion. The chancellor held in his decree that the 
 complainants were entitled to the relief prayed for, and so ordered. 
 
 'Only so much as refers to the single point is given. 
 
 2 Only the part of the opinion relating to the one point is given.
 
 55O NATIONAL COMMERCIAL BANK V. M'DONNELL. 129 
 
 It is from this decree that the present appeal is prosecuted, and the 
 same is here assigned as error. 
 
 CLOPTON, J. * * * In the cases of A. P. Bush and L. C. Dorgan, 
 the facts are substantially alike, and the questions raised are identical. 
 The amendment of the bill, filed September 5, 1887, exhibited a list 
 of the stockholders on October 6, 1886. In this list Mrs. Bush, wife 
 of A. P. Bush, and Mrs. Dorgan, wife of L. C. Dorgan, appear as 
 the holders of twenty shares each ; and they were made parties to the 
 amended bill. Having filed pleas of coverture, the bill was dismissed 
 as to them, and amended so as to aver that the wife of the appellant, 
 Bush, did not own any of the property as her equitable separate es- 
 tate, and did not personally subscribe for or purchase any of the 
 shares, but that her husband subscribed for or purchased them, and 
 caused them to be placed on the books of the company in her name. 
 The amendment of the bill makes substantially the same allegations 
 as to the shares in the name of Mrs. Dorgan. The answers of ap- 
 pellants, which are sworn to, deny that they ever owned the stock 
 held by their wives, or furnished the money to pay for them, and also 
 that the stock was purchased with funds belonging to the wife's stat- 
 utory separate estate. It will be observed that the bill fails to allege 
 that the wives had no statutory separate estate. The evidence shows 
 that a certificate for ten shares of stock was issued December i, 
 1868, and certificates for the other ten shares were issued February 
 18, 1882, to Mrs. Bush ; and a certificate for twenty shares was is- 
 sued April 19, 1875, to Mrs. Dorgan; which stood thereafter on the 
 books of the company in their names, respectively. Bush and Dor- 
 gan each owned thirty-five shares, for which certificates were issued 
 in their names, and the books showed that they were the holders of 
 such shares. On the pleadings and evidence, the chancellor rendered 
 a decree against each of the appellants for the aggregate amount of 
 the stock held in his own name, and that which stood in the name of 
 his wife. What follows will be understood as the expression of my 
 individual views as to the personal liability of the husbands. 
 
 It is conceded that, at common law, when the husband subscribes 
 for stock in the name of his wife, he will be held liable for the sub- 
 scription as the real owner. The rule rests on the incapacity of a 
 married woman to subscribe for stock, and as she can not make a 
 binding contract, whoever subscribes in her name becomes personally 
 liable. At common law a married woman has no material rights as 
 regards shares of stock subscribed for or purchased by her. The 
 statutes in force at the time of the purchase of the stock in question 
 abrogated the marital rights of the husband as to the wife's statutory 
 separate estate. By the statute her property was vested in him, not 
 as husband, but as her trustee, and as such he was clothed with large 
 discretionary powers to invest her funds as he deemed most beneficial 
 for her, and if he purchased personal property with her money, taking 
 the title in her name, while as trustee he was entitled to the possession 
 and income, she was the legal owner. Evans v. English, 61 Ala. 
 416; Daniel v. Hardwick, 88 Ala. 557. The husband may invest
 
 I2Q SUBSCRIPTION OK MARRIED WOMEN. 551 
 
 her money in the stock of incorporated companies, which thus be- 
 comes her separate estate, as well as other personal property. 
 
 The supreme court of the United States, in a recent case, held that 
 a married woman, in the District of Columbia, may become a holder 
 of stock in a national banking association, assuming all the liabilities 
 of a shareholder, though the consideration may have proceeded from 
 the husband, and that coverture does not prevent the recovery of a 
 judgment against her for the amount of an assessment levied upon the 
 shareholders to pay the corporate debts. Keyzer v. Hitz, 133 U. S. 
 138. This conclusion is based on the fact that the statute imposing 
 liability on the stockholders makes no exception in favor of married 
 women. Whether, under our statutes, the rules of the common law 
 are displaced so far as to render a married woman individually liable 
 for the debts of the corporation and authorize a personal judgment 
 against her, are questions not before us and as to which we express no 
 opinion. In Simmons v. Dent, 15 Mo. App. 288, it was held that, 
 under a statute whereby a married woman may become a stockholder, 
 a transfer of stock from the husband to the wife is valid and relieves 
 him from liability on the stock the same as though he had transferred 
 it to another person. 
 
 That a married woman may become, by a purchase of shares, a 
 stockholder in an incorporated company under our statute, can not 
 well be questioned. The liability of the shareholders, additional to 
 the common law liability for unpaid subscriptions, is statutory. Im- 
 posing a liability which did not exist at common law, the statute will 
 not be extended by construction so as to include persons who are not 
 the equitable or real owners of the stock, or in whom the legal title is 
 not vested who are not stockholders, neither equitably nor legally. 
 Cook on Stock and Stockholders, 214. When money of the wife's 
 statutory separate estate is invested by her husband as a trustee in the 
 purchase of stock, he is not the owner, has no beneficial interest therein, 
 and enters into no contractual relations, express or implied, with the 
 corporation. It is true that, under the statutes in force at the time of 
 the purchase of the stock, a married woman 'had no capacity to 
 make contracts subjecting her to personal liability, or charging her stat- 
 utory separate estate. But whether the husband, subscribing for 
 stock in the name of his wife, would be liable for the unpaid sub- 
 scriptions, is not the question presented for decision. It may be that 
 he would be liable, under the rule laid down in Wilder v. Abernethy, 
 54 Ala. 644, that no title to property purchased on her credit passes 
 to her, the contract of purchase not being a charge on her separate 
 estate, and if purchased by the husband on the credit of the wife, it 
 becomes his property. A different question arises where property is 
 purchased with the separate money of the wife, paid for a real in- 
 vestment of her funds by the husband as her statutory trustee. In 
 such case the contract of purchase, the investment, bound the wife. 
 It appearing that, in each case, the stock was purchased by the husband 
 for the wife in his capacity of trustee under his statutory powers, paid 
 for with the moneys of her separate estate, the certificates issued in
 
 552 NATIONAL COMMERCIAL BANK V. M'DONNELL. 130 
 
 her name, standing on the books of the company as the owner hold- 
 ing the legal title, and the husband's name not appearing on the 
 books as the owner, or as holding the stock in trust, he can not be re- 
 garded, in my opinion, as a stockholder, in the meaning of the consti- 
 tutional and statutory provisions imposing the additional individual 
 liability. Btrt as to this conclusion, the other members of the court 
 differ with me, holding that, as a married woman w r as incapable un- 
 der the statute of making a contract binding her personally, or charg- 
 ing her statutory separate estate, the common law rule, which makes 
 the husband, when he subscribes for stock in the name of his wife, 
 personally liable on the subscription, applies, and subjects him to the 
 additional liability imposed by the statute on the stockholders to the 
 extent of their stock. 
 
 As to Bush and Dorgan, affirmed. 
 
 Note. Married women as shareholders. See, 1847, Porter v. Bank of Rutland, 
 19 Vt. 410; 1849, Angas' Case, 1 De G. & Sm. 560; 1849, Slaymaker v. Bank 
 of Gettysburg, 10 Pa. St. 373; 1850, White's Case, 3 De G. & Sm. 157; 1853, 
 Dalton v. Midland, etc., R., 13 C. B. 474; 1860, Luard's Case, 1 De G., 
 F. & J. 533; 1860, In matter of Reciprocity Bank, 22 N. Y. 9; 1864, Hill v. 
 Pine River Bank, 45 N. H. 300 ; 1866, Matthewman's Case, L. R. 3 Eq. Cas. 781 ; 
 1868, Butler v. Cumpston, L. R. 7 Eq. Cas. 16; 1872, Pugh & Sharman's Case, 
 L. R. 13 Eq. 566; 1879, Brown v. Bokee, 53 Md. 155; 1880, Anderson v. Line, 
 14 Fed. Rep. 405; 1886, Sayles v. Bates, 15 R. I. 342; 1887, Witters v. Sowles, 
 32 Fed. Rep. 767; 1890, Keyser v. Hitz, 133 TJ. S. 138; 1894, Robinson v. Tur- 
 rentine, 59 Fed. Rep. 554; 1896, Re Married Women's, etc., 18 Pa. Co. Ct. 492. 
 
 See, also, 14 Am. & Eng. Ency. 680; Beach, 139; Cook, 66, 250, 319, 
 396, 538; Clark, 98; Elliott, 346; I Thompson, 1096-7; II 76., 2493;' 
 III Ib., 3103, 3211, 3275; VII Ib., . 8163, 8708. 
 
 Sec. 130. Aliens. See Regina v. Arnaud, 9 Adolpl. & E. 886, 
 supra, p. 58. 
 
 Notes. Aliens as shareholders. See, 1806, Ex parte Boussmaker, 13 Ves. Jr. 
 71; 1844, Cammeyer v. U. G. L. Churches, 2 Sandf. Ch. (N. Y.) 186; 1847, 
 Commw. v. O'Donnell, Brightly N. P. (Pa.) Ill; 1869, Hobbs v. Manhattan 
 Ins. Co., 56 Maine 417, 96 Am" Dec. 472; 1871, In re Journalist's Fund, etc., 
 SPhila. (Pa.) 272; 1873, In re Charter, etc., 10 Phila. (Pa.) 19; 1879, In re 
 Charter, etc., 1 Leg. Rec. (Pa.) 133; 1880, Humphreys v. Mooney, 5 Colo. 282; 
 1890, Commw. v. Hemmingway, etc., 131 Pa. St. 614, 7 L. R. A. 357; 1895, Re 
 Italian Mnt. Ben. Assn., 15 Pa". Co. Ct, 644; 1897, Re Charter St. Ladislaus, 
 19 Pa. Co. Ct. 25; 1899, Blien v. Rand, 79 N. W. (Minn.) 606. 
 
 State statutes frequently provide that in corpora tors, or a part of them, shall 
 be citizens of the state granting the charter. Such provisions are undoubt- 
 edly valid, for the state can grant or withhold its corporate franchises at its 
 pleasure. It, however, perhaps is questionable whether a state can confine 
 the stockholders or subscribers to the stock to residents or citizens of the 
 state creating the corporation, without violating section 2, article iv, of the 
 United States constitution, providing that "the citizens of each state shall be 
 entitled to all the privileges and immunities of citizens in the several 
 states." 
 
 But see, 1890, Commw. v. Hemmingway, 131 Pa. St. 614 ; 1898, State v. 
 Travelers' Ins. Co., 70 Conn. 590; 1899, Blien v. Rand, 77 Minn. 110, 79 
 N. W. 606.
 
 131 SUBSCRIPTION BY PRIVATE CORPORATIONS. 553 
 
 Sec. 131. Private corporations. 
 
 THE DENNY HOTEL CO., APPELLANT, v. JOHN SCHRAM, RESPONDENT.* 
 
 1893. IN THE SUPREME COURT OF WASHINGTON. 6 Wash. Rep. 
 iS^S 8 ' 3 6 Am - St - Re P- !3' 
 
 DUNBAR, C. J. * * * Second. Can a corporation under the laws 
 of this state become an incorporator by subscribing for shares in 
 another corporation? * * * 
 
 As to the second proposition, a corporation can only be formed in 
 the manner provided by law, and has only such powers as the law 
 specially confers upon it. We do not think that a corporation was 
 within the contemplation of the legislature when they used the ex- 
 pression, "two or more persons," in 1498, Gen. Stat. It is true 
 that 1709, Code Proc., provides that the term "person" may be 
 construed to include the United States, this state, or any state or ter- 
 ritory, or any public or private corporation, as well as an individual. 
 But it does not follow, by any means, that the term "person" is al- 
 ways to be construed as a private corporation, any more than it is 
 always to be construed as the United States. 
 
 Morawetz on Private Corporations, 433, says: "A corporation 
 can not, in the absence of express statutory authority, become an in- 
 corporator by subscribing for shares in a new corporation ; nor can it 
 do this indirectly through persons acting as its agents or tools ;" cit- 
 ing Central R. Co. v. Pennsylvania R. Co., 31 N. J. Eq. 475. The 
 author, continuing, says, "The right of forming a corporation is con- 
 ferred by the incorporation laws only upon persons acting individu- 
 ally, and not upon associations. " 
 
 This, it seems to us, for manifest and manifold reasons, is in accord- 
 ance with public policy, and we therefore decide that under the ex- 
 isting laws of this state one corporation can not subscribe to the capi- 
 tal stock of another corporation. And, in any event, in this case the 
 amount of the capital stock of the building company was so exceed- 
 ingly small, compared with the amount of the liability which it sought 
 to assume (its subscribed stock being $64,000 and its capital stock 
 only $54,000), that there was no apparent ability to pay the amount 
 subscribed ; and while it may be true that a party's contract will not 
 be held void if it is not apparent that he is worth the entire amount of 
 money necessary to carry it out at the time it is made, yet the disparity 
 here is too great, and there is not only not "an apparent ability to 
 pay," but there is an apparent inability to pay. 
 
 We find no error in the proceedings in the court below, and the 
 judgment is therefore affirmed. 
 
 STILES, ANDERS and SCOTT, JJ., concur. 
 
 HOYT, J., disqualified. 
 
 Note. See, infra, under Powers of Corporations, p. 1051, et seq. 
 Only that part of opinion relating to the one point given.
 
 554 COLE V. LA GRANGE. 132 
 
 Sec. 132. Municipal corporations. 
 
 COLE v. LA GRANGE. 1 
 
 1884. IN THE SUPREME COURT OF THE UNITED STATES. 113 U. S. 
 
 Rep. 19. 
 
 This was an action to recover the amount of coupons for interest 
 from January i, 1873, to January i, 1880, attached to twenty-five 
 bonds, all exactly alike, except in their numbers, and one of which 
 was as follows : 
 
 "UNITED STATES OP AMERICA. \ 
 
 STATE OF MISSOURI, CITY OP LA GRANGE. / 
 
 "No. 23. $1,000 
 
 "Know all men by these presents, that the city of La Grange doth, 
 for a good, sufficient and valuable consideration, promise to pay to 
 the La Grange Iron and Steel Company, or bearer, the sum of $1,000 
 in current funds, thirty years after the date thereof, at the Third Na- 
 tional Bank, city of New York, together with interest thereon, at the 
 rate of eight per cent, per annum, payable annually in current funds 
 on the first day of each January and July ensuing the date hereof, on 
 presentation and surrender of the annexed interest coupons at said 
 Third National Bank. 
 
 "This bond is issued under an ordinance of the city council of the 
 said city of La Grange, passed and approved September 22, 1871, 
 under and in pursuance of an act of the legislature of the state of 
 Missouri, entitled 'An act to amend an act entitled an act to incorpo- 
 rate the city of La Grange,' approved March 9, 1871, which became 
 a law and went into force and effect from and after its said approval. 
 
 "This bond to be negotiable and transferable by delivery thereof. 
 
 "In testimony whereof, the city council of the city of La Grange 
 hath hereunto caused to be affixed the corporate seal of said city, and 
 these presents to be signed by the mayor and countersigned by the 
 clerk of the city council of said city this I4th day of December, 1871. 
 rs n "J. A. HAY, Mayor. 
 
 "R. McCHESNEY. Clerk." 
 
 The petition alleged that the city of La Grange, on the i4th of De- 
 cember, 1871, executed the twenty-five bonds, and delivered them to 
 the La Grange Iron and Steel Company, under and by virtue of the 
 authority contained in section i of article vi of the city charter, as 
 amended by an act of the legislature of Missouri, approved March 9, 
 1871 (which section, as thus amended, was set forth in the 
 petition), and under and by virtue of an ordinance of the city, 
 dated September 22, 1871, by which an election was author- 
 ized to be held in the city on October 4, 1871, to test the sense 
 of the people of the city upon the question of issuing bonds; 
 
 Arguments omitted.
 
 132 SUBSCRIPTION BY PUBLIC CORPORATION. 555 
 
 that in compliance with the ordinance and with the city charter, an 
 election was held, at which the proposition was adopted by a two- 
 thirds vote of the qualified voters ; and that on September I, 1872, 
 the plaintiff bought the twenty-five bonds, for value, relying upon the 
 recitals on their face, and without knowledge of any irregularity or 
 defect in their issue; of all which the defendant had notice, by means 
 whereof the defendant became liable and promised to pay to the 
 plaintiff the sum specified in the coupons, according to their tenor 
 and effect. 
 
 The answer denied all the allegations of the petition ; and for 
 further answer averred that the act of the legislature mentioned in 
 the petition, approved March 9, 1871, attempted to give, and in 
 terms did give, to the city authority to make gifts and donations to 
 private manufacturing associations and corporations; that the city 
 council, purporting to act under such authority, by an ordinance 
 adopted September 22, 1871 (which was referred to in the answer), did 
 submit to a vote of the citizens a proposition to give or donate to the 
 La Grange Iron and Steel Company, a private manufacturing company, 
 formed and established for the purpose of carrying on and operating a 
 roliing-mill, the sum of $200,000; that, in accordance with that ordi- 
 nance, the bonds of the city were issued to said manufacturing com- 
 pany, which was a strictly private enterprise, formed and prosecuted 
 for the purpose of private gain, and which had nothing whatever of 
 a public character; and that it was incompetent for the legislature to 
 grant authority to cities or towns to make donations and issue bonds 
 to mere private companies or associations having no public functions 
 to perform, and the act of the legislature and the ordinance of the 
 city were void ; wherefore, the bonds and coupons were issued with- 
 out any legal authofity, and were wholly void. 
 
 To this answer the plaintiff filed a general demurrer, which was 
 overruled by the court, and the plaintiff electing to stand by his de- 
 murrer, judgment was entered for the defendant. 19 Fed. Rep. 
 871. The plaintiff sued out this writ of error. 
 
 Mr. Justice GRAY delivered the opinion of the court. He recited 
 the facts as above stated and continued: 
 
 The general grant of legislative power in the constitution of the 
 state does not enable the legislature, in the exercise either of the right 
 3f eminent domain or in the right of taxation, to take private prop- 
 erty, without the owner's consent, for any but a public object. Nor 
 can the legislature authorize counties, cities or towns to contract for 
 private objects debts which must be paid by taxes. It can not, there* 
 fore, authorize them to issue bonds to assist merchants or manufactur- 
 ers, whether natural persons or corporations, in their private business. 
 These limits of the legislative power are now too firmly established 
 by judicial decisions to require extended argument upon the subject. 
 
 In Loan Association v. Topeka, 20 Wall. 655, bonds of a city, 
 issued, as appeared on their face, pursuant to an act of the legislature 
 of Kansas, to a manufacturing corporation, to aid it in establishing 
 shops in the city for the manufacture of iron bridges, were held by
 
 556 COLE V. LA GRANGE. 132 
 
 this court to be void, even in the hands of a purchaser in good faith 
 and for value. A like decision was made in Parkersburg v. Brown, 
 1 06 U. S. 487. The decisions in the courts of the states are to the 
 same effect. Allen v. Jay, 60 Maine 124; Lowell v. Boston, in 
 Mass. 454; Weismer v. Douglas, 64 N. Y. 91; In re Eureka Co., 
 96 N. Y. 42 ; Bissell v. Kankakee, 64 111. 249 ; English v. People, 
 96 111. 566; Central Branch Union Pacific Railroad v. Smith, 23 
 Kan. 745. 
 
 We have been referred to no opposing, decision. The cases of 
 Hackett v. Ottawa, 99 U. S. 86, and Ottawa v. National Bank, 105 
 U. S. 342, were decided, as the chief justice pointed out in Ottawa 
 v. Carey, 108 U. S. no, 118, upon the ground that the bonds in 
 suit appeared on their face to have been issued for municipal pur- 
 poses, and were therefore valid in the hands of bona fide holders. In 
 Livingston v. Darlington, 101 U. S. 407, the town subscription was 
 toward the establishment of a state reform school, which was un- 
 doubtedly a public purpose, and the question in controversy was 
 whether it was a corporate purpose, within the meaning of the con- 
 stitution of Illinois. In Burlington v. Beasley, 94 U. S. 310, the grist 
 mill held to be a work of internal improvement, to aid in constructing 
 which a town might issue bonds under the statutes of Kansas, was a 
 public mill which ground for toll for all customers. See Osborne v. 
 Adams County, 106 U. S. 181, and 109 U. S. i; Blair v. Cuming 
 County, in U. S. 363. Subscriptions and bonds of towns and cities, 
 under legislative authority, to aid in establishing railroads, have been 
 sustained on the same ground on which the delegation to railroad cor- 
 porations of the sovereign right of eminent domain has been justified, 
 the accommodation of public travel. Rogers v. Burlington, 3 Wall. 
 654; Queensbury v. Culver, 19 Wall. 83; Loan Association v. To- 
 peka, 20 Wall. 661, 662; Taylor v. Ypsilanti, 105 U. S. 60. Stat- 
 utes authorizing towns and cities to pay bounties to soldiers have been 
 upheld because the raising of soldiers is a public duty. Middleton v. 
 Mullica, 112 U. S. 433; Taylor v. Thompson, 42 111. 9; Hilbish v. 
 Catherman, 64 Pa. St. 154; State v. Richland, 20 Ohio St. 362; 
 Agawam v. Hampden, 130 Mass. 528, 534. 
 
 The express provisions of the constitution of Missouri tend to the 
 same conclusion. It begins with the Declaration of Rights, the six- 
 teenth article of which declares that "no private property ought to be 
 taken or applied to public use without just compensation." This 
 clearly presupposes that private property can not be taken for private 
 use. St. Louis County Court v. Griswold, 58 Mo. 175, 193; 2 Kent 
 Com. 339 note, 340. Otherwise, as it makes no provision for com- 
 pensation except when the use is public, it would permit private prop- 
 erty to be taken or appropriated for private use without any compen- 
 sation whatever. It is true that this article regards the right of emi- 
 nent domain, and not the power to tax; for the taking of property by 
 taxation requires no other compensation than the tax-payer receives 
 in being protected by the government, to the support of which he con- 
 tributes. But, so far as respects the use, the taking of private prop-
 
 132 SUBSCRIPTION BY PUBLIC CORPORATION. 557 
 
 erty by taxation is subject to the same limit as the taking by the right 
 of eminent domain. Each is a taking by the state for the public use, 
 and not to promote private ends. 
 
 The only other provisions of the constitution of Missouri having 
 any relation to the subject, are the following sections of the eleventh 
 article : 
 
 "Sec. 13. The credit of the state shall not be given or loaned in 
 aid of any person, association or corporation, nor shall the state here- 
 after become a stockholder in any corporation or association, except 
 for the purpose of securing loans heretofore extended to certain rail- 
 road corporations in the state. 
 
 "Sec. 14. The general assembly shall not authorize any county, 
 city, or town to become a stockholder in, or loan its credit to, any 
 company, association or corporation, unless two-thirds of the quali- 
 fied voters of such county, city or town, at a regular or special elec-' 
 tion, to be held therein, shall assent thereto." 
 
 Both these sections are restrictive and not enabling. The thirteenth 
 section peremptorily denies to the state the power of giving or lending 
 its credit to or becoming a stockholder in any corporation whatever. 
 The aim of the fourteenth section is to forbid the legislature to au- 
 thorize counties, cities or towns, without the assent of the tax-payers, 
 to become stockholders in or to lend their credit to any corporation 
 however public its object; State v. Curators State University, 57 Mo. 
 178; not to permit them to be authorized, under any circumstances, 
 to raise or spend money for private purposes. 
 
 It is averred in the answer, and admitted by the demurrer, that the 
 La Grange Iron and Steel Company, to which the bonds were issued, 
 was "a private manufacturing company, formed and established for 
 the purpose of carrying on and operating a rolling-mill," and "was a 
 strictly private enterprise, formed and prosecuted for the purpose of 
 private gain, and which had nothing whatever of a public character."' 
 The ordinance referred to shows that the mill was to manufacture 
 railroad iron ; but that is no more a public use than the manufacture 
 of iron bridges, as in the Topeka case, or the making of blocks of 
 stone or wood for paving streets. There can be no doubt, therefore, 
 that the act of the legislature of Missouri is unconstitutional, and that 
 the bonds expressed to be issued in pursuance of that act are void 
 upon their face. 
 
 As for this reason the action can not be maintained, it is needless 
 to dwell upon the point that the answer demurred to, besides the spe- 
 cial defense of the unconstitutionality of the act, contains a general 
 denial of the allegations in the petition. That point was mentioned 
 and passed over in the opinion of the circuit court, and was not 
 alluded to in argument here, the parties in effect assuming the general 
 denial in the answer to have been withdrawn or waived, and the case 
 submitted for decision upon the validity of the special defense. 
 
 Judgment affirmed. 
 
 Note. Subscriptions by municipal corporations. There is no implied authority 
 to subscribe. 1863, Gelpcke v. Dubuque, 1 Wall. (U. S.) 175; 1873, State v.
 
 558 COLE V. LA GRANGE. 133 
 
 Saline Co. Ct., 51 Mo. 350; 1880, Weightman v. Clark, 103 U. S. 256; 1883, 
 City of Jonesboro v. Cairo, etc., 110 U. S. 192; 1888, Kelley v. Milan, 127 
 U. S. 139. 
 
 The legislature may authorize the municipal corporation to subscribe. 
 1837, Goddin v. Crump, 8 Leigh (Va.) 120; 1852, Slack v. Maysville & L. R., 
 13 B. Mon. iKy.) 1 ; 1853, Sharpless v. Mayor, etc., 21 Pa. St. 147, 59 Am. 
 D. 759; 1858, Knox Co. v. Aspinwall, 21 How. (U.S.) 539; 1871, Leaven- 
 worth Co. v. Miller, 7 Kan. 479; 1871, Walker v. Cincinnati, etc., 21 Ohio 
 St. 14, 8 Am. Rep. 24; 1871, Ex parte Selma, etc., 45 Ala. 696, 6 Am. Rep. 722; 
 1873, Harcourt v. Good, 39 Tex. 456; 1873, Pine Grove Tp. v. Talcott, 19 
 Wall. (86 U. S.) 666; 1874, Loan Assn. v. Topeka, 20 Wall. (87 U. S. 655; 
 1876, Williams v. Duanesburg, 66 N. Y. 129; 1877, Quincy, etc., R. v. Morris, 
 84111. 410; 1882, Lyons v. Chamberlain, 89 N. Y. 578; 1892, Boon Tp. v. 
 Cummins, 142 U. S. 366; 1893, Barnum v. Okolona, 148 U. S. 393; 1895, Fol- 
 sora v. Ninety Six, 159 U. S. 611. 
 
 But see, contra, 1868, McClure v. Owen, 26 Iowa 243; 1870, People v. 
 Salem, etc., 20 Mich. 452; 1871, People v. State Treas., 23 Mich. 499. 
 
 Sec. 133. State or national government. 
 
 BANK OF THE UNITED STATES v. PLANTER'S BANK OF GEORGIA. 1 
 
 1824. IN THE SUPREME COURT OF THE UNITED STATES. 9 Wheat. 
 (U. S.) Rep. 904-913. 
 
 [Suit by plaintiff upon promissory notes of defendant payable to a 
 person named or bearer and duly transferred to plaintiff. The de- 
 fendant bank pleads to the jurisdiction of the United States Circuit 
 Court of Georgia (where the case was tried and certified to the 
 supreme court on a division of opinion), alleging that the state of 
 Georgia was a stockholder, and raising the question as to whether the 
 state was therefore a party defendant in the case.] 
 
 MARSHALL, C. J. * * * It is, we think, a sound principle that when 
 a government becomes a partner in any trading company, it divests 
 itself, so far as concerns the transactions of that company, of its 
 sovereign character and takes that of a private citizen. Instead of 
 communicating to the company its privileges and its prerogatives, it 
 descends to a level with those with whom it associates itself, and 
 takes the character which belongs to its associates, and to the business 
 which is to be transacted. Thus, many states of this Union, who 
 have an interest in banks, are not suable even in their own courts, 
 yet they never exempt the corporation from being sued. The state of 
 Georgia, by giving to the bank the capacity to sue and be sued, vol- 
 untarily strips itself of its sovereign character so far as respects the 
 transactions of the bank, and waives all the privileges of that char- 
 acter. As a member of a corporation, a government never exer- 
 cises its sovereignty. It acts merely as a corporator and exercises no 
 other power in the management of the affairs of the corporation than 
 are expressly given by the incorporating act. 
 
 1 Only so much of opinion given as relates to the character of a state as a 
 stockholder.
 
 133 SUBSCRIPTION BY THE STATE. 559 
 
 The government of the Union held shares in the old Bank of the 
 United States ; but the privileges of the government were not im- 
 parted by that circumstance to the bank. The United States was not 
 a party to suits brought by or against the bank in the sense of the 
 constitution. So with respect to the present bank. Suits brought by 
 or against it are not understood to be brought by or against the United 
 States. The government, by becoming a corporator, lays down its 
 sovereignty so far as respects the transactions of the corporation and 
 exercises no power or privilege which is not derived from the charter. 
 We think, then, the Planter's Bank of Georgia is not exempted from 
 being sued in the federal courts by the circumstance that that state is 
 a corporator.
 
 TITLE III. THE BODY CORPORATE, ITS BIRTH AND ORGANIZATION. 
 
 CHAPTER 7. 
 ORGANIZATION AND COMPLIANCE WITH CONDITIONS. 1 
 
 ARTICLE I. SCHEMES OF ORGANIZATION. 
 
 Sec. 134. ( i) Under the King' s Charter: This usually provides 
 the original organization in the charter itself. See supra, The 
 Charter of Dartmouth College, p. 426, and infra^p. 711. 
 
 Sec. 135. (2) In special acts: 
 
 (a) The act itself provides the original organization: Illustra- 
 tion, Charter of Michigan Central R. Co. 
 
 "Sec. 1. Be it enacted, etc., That William Sturgess (and twenty-five other 
 persons named) and such other persons as shall associate with them for that 
 purpose, are hereby made and constituted a body corporate and politic by the 
 name and style of the Michigan Central Railroad Company, with perpetual 
 succession, etc. (enumerating various powers conferred). 
 
 "Sec. 22. The corporate stock * * * shall be $5,000,000 * * * divided 
 into shares of $100 each. * * * Provided, The company may commence 
 business whenever $2,000,000 of stock shall have been subscribed. 
 
 "Sec. 23. The nine persons first named in the first section * * * shall be 
 the first directors of said company ; and at their first, meeting they shall elect 
 by ballot one of their number to be president, a majority of whom shall be 
 competent to manage the affairs of the company ; such first meeting of the 
 directors shall be held at a time and place to be fixed by a written agreement 
 signed by all of said directors. * * * 
 
 "Sec. 24. Said directors, or a majority of them, may open books to receive 
 subscriptions to the capital stock, * * * at such times and places as they or 
 a majority of them may appoint, etc. * 
 
 "Sec. 25. To continue the succession of president and directors, nine di- 
 rectors shall be chosen annually, on the second Monday in June, at such 
 time and place as may be appointed by the directors. * * * 
 
 "Sec. 27. A general meeting of the stockholders of said company shall be 
 
 'See Angell & Ames, ch. 2 and 3; Beach, 9-16, 159-162; Boone, 26- 
 34; Clark, 19-27, 41-45; Cook, 5, 183-6, 231-5; Elliott, 21-50; Field, 
 29; 1 Kyd, ch. 3; Morawetz, ch. 2 and 9; Taylor, 72-90; Thompson, ch. 
 1-18. 
 
 (560)
 
 136 SCHEMES OF ORGANIZATION. 561 
 
 holden annually at the time and place appointed for the election of direct- 
 ors. * * * 
 
 "Sec. 31. The directors shall have full power to conduct the affairs of said 
 company, and to exercise any powers which said company might exercise, 
 except where provision is made by this act for the exercise of such powers by 
 the stockholders at their annual or special meetings, or where the powers of 
 the directors may be restrained by the by-laws of said company. * * See 6 
 Laws of Mich. (1846) No. 42, p. 37, et seq. 
 
 Sec. 136. 
 
 (t>) The law provides for the organization to be made by the 
 persons subscribing for the stock. See supra, the charter of the 
 Baltimore and Ohio R. Co., p. 427. 
 
 Sec. 137. (3) Under general incorporation laws: 
 
 (a) By .deed of settlement; this method, when used, provided 
 the organization in the deed itself. See forms in 2 Coke's Inst. 
 720, and Wordsworth, Stock Companies, Part II. 
 
 Sec. 138. Same. 
 
 (#) License plan: Illustration, The Illinois law. 
 
 This provides that "whenever any number of persons, not less than three 
 nor more than seven, shall propose to form a corporation * * they shall 
 make a statement to that effect, under their hands, and duly acknowledged, 
 
 * * setting forth name, * * * object, * * * capital stock," shares, 
 location of office and duration, not exceeding ninety-nine years, which state- 
 ment shall be filed with the secretary of state, "who shall issue to such per- 
 sons a license as commissioners to open books for subscription to the capital 
 stock of said corporation at such times and places as they may determine. 
 
 * *" As soon as the capital stock shall be fully subscribed, "the com- 
 missioners shall convene a meeting for subscribers for the purpose of electing 
 directors or managers and the transaction of such other business as shall 
 come before them." Certain notice of election is to be given, and voting may 
 be by proxy or cumulative. "The commissioners shall make a full report of 
 their proceedings, including therein a copy of the notice, * * * a copy of 
 the subscription list, * * * the names of the directors or managers elected, 
 and their respective terms of office, which report, shall be sworn to by at least 
 a majority of the commissioners, and shall be filed in the office of the secre- 
 tary of state. The secretary of state shall thereupon issue a certificate of the 
 complete organization of the corporation, making a part thereof a copy of all 
 papers filed in his office in and about the organization of the corporation, and 
 duly authenticated under his hand and seal of the state, and the same shall 
 be recorded in a book for that purpose, in the office of the recorder of deeds 
 of the county where the principal office of such company is located. Upon 
 the recording of said copy, the corporation shall be deemed fully organized, 
 and may proceed to business." Revised Statutes of Illinois, 1895, act of April 
 18, 1872, in force July 1, 1872, 2, S and 4. 
 
 36 WIL. CASES.
 
 562 SCHEMES OF ORGANIZATION. 139 
 
 Sec. 139. Same. 
 
 The new Kansas lain (Laws of 1898, ch. 10, approved January 7, 1899) 
 creates a charter board, composed of the attorney-general, the secretary of 
 state and the state bank commissioner, to whom application (on blanks to be 
 furnished! shall be made. "The board shall make a careful investigation of 
 each application with reference to the character of the business in which the 
 proposed corporation is to engage, and if the board shall determine that the 
 business is one for which a corporation may lawfully be formed, and that ap- 
 plicants are acting in good faith, the application shall be granted, and the sec- 
 retary of the board (the secretary of state) shall issue a certificate setting 
 forth the fact that the persons named in the application have been author- 
 ized by the charter board to form a private corporation, as set forth in the 
 application, reciting the proposed name and character thereof." 3a-3j. A 
 charter must be prepared stating name, purpose, place of business, term of 
 existence, number of its directors or trustees and the names and residences of 
 those who are appointed for the first year, amount of capital stock, number of 
 shares, names and addresses of shareholders and number of shares held by 
 each. Ib. Charter must be subscribed and acknowledged by five persons, 
 three to be citizens of the state, and shall then be filed with the secretary 
 of state, and be recorded by him. See, also, Alabama Civil Code, 1139-42. 
 
 Sec. 140. Same. 
 
 (V) Organization completed before application made : Illustra- 
 tion, Massachussets law. 
 
 Any number of persons may associate by an agreement "which shall set 
 forth the fact that the subscribers thereto associate * * * with the intention 
 of forming a corporation," name, purpose, location, capital stock, and num- 
 ber of shares. The first meeting shall be called by a notice signed by one or 
 more of the subscribers, stating time, place and purpose, served seven days 
 before time fixed for meeting. At such meeting "an organization shall be 
 effected by the choice by ballot of a temporary clerk, who shall be sworn, 
 and by the adoption of by-laws and the election (by ballot for one year) of 
 directors, treasurer, clerk and such other officers as the by-laws may provide ; 
 but at such first meeting no person shall be eligible as a director who has not 
 subscribed the agreement of association. The temporary clerk shall make 
 and attest a record of the proceedings until the clerk has been chosen and 
 sworn, including a record of such choice and qualification." "The presi- 
 dent, treasurer and a majority of the directors, shall forthwith make, sign 
 and swear to a certificate setting forth a true copy of the agreement of asso- 
 ciation with the names of the subscribers thereto, the date of the first meet- 
 ing * * * anc i shall submit such certificate and also the records of the 
 corporation to the commissioner of corporations, who shall examine the 
 same, and who may require such other evidence as to the facts of the case as 
 he may judge necessary. The commissioner, if it appears that the require- 
 ments ' * * have been complied with, shall certify that fact and his 
 approval of the certificate by indorsement thereon. Such certificate shall 
 thereupon be filed by said officers in the office of the secretary of the com- 
 monwealth, who * * * shall issue a certificate," in a form prescribed, 
 under his signature and the seal of the commonwealth, and "such certificate 
 shall have the force and effect of a special charter, and shall be conclusive 
 evidence of the existence of such corporation. He shall also cause a record 
 of such certificate to be made, and a certified copy of such record may be 
 given in evidence with like effect as the original certificate." Public Stat. of 
 Mass. 1882, ch. 106, 16-21.
 
 141 PROOF OF ORGANIZATION. 563 
 
 In many of the states it is required or customary for the organization for 
 the first year, or at least the first directorate, to he provided for in the 
 articles of association, when they are filed with the required officer. 
 
 See forms in American Corp. Legal Manual for 1899, Arkansas, California, 
 Colorado, Connecticut, District of Columbia, Idaho, Indiana, Iowa, Kansas, 
 Maine, Maryland, Michigan (Mining Companies), Minnesota, Missouri, 
 Montana, Nevada, New Mexico, New York, North Dakota, Oklahoma, Penn- 
 sylvania, South Dakota, Texas, Utah, Virginia, Washington, Wyoming, 
 Dominion of Canada, Prince Edward's Island. 
 
 See. 141. Same. 
 
 (d) Organization by subscribers to stock after the articles of 
 incorporation are filed. 
 
 See note to State v. Fidelity, etc., Ins. Co., 49 Ohio St. 440, supra, p. 406. In 
 the following states, it seems from the approved forms in use that the organ- 
 ization is to take place after the stock is subscribed, and is to be determined 
 by the subscribers : Arizona, Delaware, Florida, Hawaii ( 2028, Civil Code), 
 Louisiana, Nebraska, New Hampshire, New Jersey, North Carolina, Ohio, 
 Oregon, Rhode Island, South Carolina, West Virginia, Wisconsin. See forms 
 in the American Corporation Legal Manual for 1899; Appendix, infra, Char- 
 ter of U. S. Steel Corp. 
 
 ARTICLE II. PROOF OF ORGANIZATION. 
 
 Sec. 142. General presumption of regularity. 
 
 PACKARD ET AL. v. OLD COLONY RAILROAD COMPANY. 1 
 
 1897. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 168 
 Mass. Rep. 92-99. 
 
 [In 1848 the ancestor of plaintiff executed a deed conveying the land, 
 for the taking of which damages were asked, to Perkins and constitut- 
 ing "a committee of and in behalf of Village Cemeteiy, a corpora- 
 tion," for the use and behoof of said corporation, "except that the 
 ground shall never be used for other purposes than as a cemetery." 
 Respondent introduced the corporation record book showing that in 
 1848 eleven persons desirous of forming a cemetery corporation under 
 the act of 184.1, had a meeting called according to the statute, at which 
 a secretary, president and treasurer were chosen and a committee ap- 
 pointed to draft a constitution and by-laws ; the record did not show 
 how many were present. In 1848 the name was chosen, and sixteen 
 meetings in all were held prior to 1854, when the corporation seemed 
 to become dormant. In 1883 a meeting of the proprietors was called 
 to elect officers and adopt by-laws, and several meetings followed, at 
 
 1 Statement of facts abridged. Only part of opinion relating to the one 
 point given.
 
 564 PACKARD V. OLD COLONY R. CO. 142 
 
 one of which it was suggested that the original corporation was illegal 
 because the records did not show the number present at the organiza- 
 tion meeting, and at a subsequent meeting it was suggested that the 
 legislature be petitioned to re-establish the corporation, but nothing 
 was done. Records showed that twenty-nine burial lots had been 
 deeded between 1849 and 1854. The act of 1841 provided that: 
 "Any ten or more may organize a corporation for the purpose," etc., 
 and, "When such persons are organized, etc., they shall become a 
 corporation." Plaintiff claimed there had been no valid corporate 
 organization.] 
 
 ALLEN, J. It will be seen that there is no provision in the statute 
 requiring the presence of any particular number of persons at the first 
 meeting. Eleven persons signed the application, and thus expressed 
 their wish and intention to be members of the corporation. This was 
 a proceeding analogous to the signing of the articles of agreement, 
 which was deemed essential mostly relied on by the petitioners. Utley 
 v. Union Tool Co., n Gray 139. Having done this, it was not neces- 
 sary that all should attend the first meeting. 
 
 Moreover, even if it were necessary for ten to be present, there would 
 be a presumption that this requirement had been complied with. The 
 presumption of regularity extends to the proceedings in the organization 
 of corporations. In Narragansett Bank v. Atlantic Silk Co. , 3 Met. 282, 
 287, it was said: "The maxim of law is, that all things shall be presumed 
 to have been rightly and correctly done, until the contrary is proved. 
 This maxim is stated and explained, and many instances given of its 
 application to corporations, and to acts and doings of their members, 
 officers and agents, in Bank of United States v. Dandridge, 12 Wheat. 
 64, 70. As the corporation could not proceed lawfully until duly 
 organized, and as they did proceed to act as a corporation, this pre- 
 sumption has its effect." This doctrine is often applied, and it is to 
 be assumed that ten persons were present at the first meeting, if that 
 number was necessary. Wallace v. First Parish in Townsend, 109 
 Mass. 263; Platt v. Grover, 136 Mass. 115; Commonwealth v. Carr, 
 143 Mass. 84 ; Commonwealth v. Woelper, 3 S. & R. 29 ; Graves v. 
 Lynchburg & Salem Turnpike Co., 4 Rand. 378; Lauderdale Peer- 
 age, 10 App. Cas. 692. 
 
 Petition dismissed. 
 
 Note. 1827, United States Bank v. Dandridge, 25 U. S. (12 Wheat.) 64, 70, in- 
 fra, p. 854; 1841, Wescott v. Silk Co., 3 Metcalf (Mass.) 282, 287; 1844,Sasser v. 
 State, 13 Ohio 453 (criminal suit) ; 1858, President and Trustees, etc., v. 
 Thompson, 20 111. 197 (charter and user) ; 1864, Holmes v. Gilliland, 41 Barb. 
 (N. Y.) 568 (general reputation); 1872, Wallace v. First Parish, 109 Mass. 
 263; 1883, Platt v. Grover, 136 Mass. 115; 1886, Commonwealth v. Carr, 143 
 Mass. 84; 1888, Braintree Water Supply Co. v. Inhabitants of Braintree, 
 146 Mass. 482, on 488; 1891, Jeffries Neck Pasture Propr's v. Ipswich, 153 
 Mass. 42. 
 
 See, also, Angell & Ames, 238-241, 284; Beach, 873-4; Boone, 34; 
 Clark, pp. 34, 36, 51, 129; Cook, 606-7; Elliott, 49-50, Morawetz, 25, 
 36, 324, 775; Taylor, 128, 203-6, 251, 263; I Thompson, 495-500; III 
 Thompson, 3927; IV Thompson, 5029; VI Thompson, 7689-7713; VII 
 Thompson, 8214.
 
 143 COMMENCEMENT OF CORPORATE EXISTENCE. 565 
 
 ARTICLE III. WHEN DOES CORPORATE BIRTH OCCUR? THEORIES I 
 
 Sec. 143. (a) Only upon complete organization. 
 WALTON v. OLIVER. 1 
 
 1892. IN THE SUPREME COURT OF KANSAS. 49 Kan. Rep. 107- 
 114, 33 Am. St. Rep. 355, 38 Am. & Eng. C. C. 342. 
 
 Opinion by GREEN, C. This action was commenced in the dis- 
 trict court of Cowley county by the defendants in error, to recover 
 the sum of $295 debt, and $45.40 costs, from the plaintiffs in error, 
 who were alleged to be the directors of the Arkansas City Athletic 
 Association. The petition charged that, after making and filing a 
 charter in the office of the secretary of state, the defendants never 
 perfected the organization of the corporation by opening the books 
 for the purpose of receiving subscriptions; that they did not levy and 
 collect any money from themselves, nor adopt any by-laws or other 
 rules for the government of the corporation ; that no meeting had 
 ever been called for the election of directors or other officers ; that 
 the defendants had failed to comply with any of the requirements of 
 the law for the government of corporations after the articles of incor- 
 poration had been filed; that on the i8th day of January, 1889, the 
 plaintiffs recovered a judgment against such corporation for the sum 
 of $295 and $45.40 costs; that an execution was issued upon such 
 judgment and returned "no property found." It was further al- 
 leged 
 
 "That after the filing of the said act of incorporation, the defend- 
 ants assumed to act as such corporation, and for that purpose leased 
 real estate and purchased of the plaintiffs material and lumber, with 
 which they erected a grand stand or amphitheater upon said leased 
 ground to the amount and value of several hundred dollars, and paid 
 to the plaintiffs thereon all but the amount represented by the afore- 
 said judgment, and in all their dealings with the plaintiffs, dealt in the 
 name of said judgment defendant hereinbefore referred to, and the 
 plaintiffs aver that, knowing of the filing of the aforesaid articles of 
 incorporation, and believing that said defendants were acting in good 
 faith, and that they were complying with the provisions of the laws 
 of Kansas, in such cases made and provided, in all things, and having 
 no cause to think otherwise, on the faith and credit of these men they 
 sold said lumber and building material to them and charged it to said 
 corporation of which they were the proprietors and incorporators, by 
 their direction and instruction ; that but for all of which the plaintiffs 
 would not have furnished them with said materials and credit ; that 
 after said execution had been -issued and returned -unsatisfied, the 
 plaintiffs applied to these defendants for the names of the officers and 
 stockholders of said corporation, and these defendants declined to 
 
 1 Arguments omitted.
 
 566 WALTON V. OLIVER. 143 
 
 furnish either the names or the places of residence, and insolently in- 
 formed the p-laintiffs that there were no officers, no books, no direc- 
 tors, no stockholders, and no subscriptions, and that if the plaintiffs 
 thought they had any remedy looking to the collection of said judg- 
 ment, interest and costs they were mistaken, etc., and now refuse to 
 give the plaintiffs any information of any kind relative thereto what- 
 soever ; the plaintiffs only learned the foregoing facts after the rendi- 
 tion of the aforesaid judgment." 
 
 The defendants filed a demurrer to this petition, which was over- 
 ruled by the court, and judgment was rendered for the amount prayed 
 for in the petition. The defendants elected to stand upon the demur- 
 rer, and bring the case here for review. 
 
 It is first urged by the plaintiffs in error that the petition did not 
 state a cause of action ; that the petition did not show that the goods 
 furnished, for which the original judgment was rendered, were fur- 
 nished at the request of the plaintiffs in error before the Arkansas City 
 Athletic Association became a body corporate ; but that the petition 
 showed upon its face that the goods were sold upon the credit of the 
 corporation, and that part of the purchase price of the goods was paid 
 by the corporation. It is further insisted that the Arkansas City 
 Athletic Association was legally incorporated, and that the organiza- 
 tion became complete upon the filing of the charter with the secretary 
 of state. This contention is not sound. The statute only provides 
 that the existence of the corporation shall date from the time of filing 
 the charter, and the certificate of the secretary of state shall be evi- 
 dence of the time of such filing. (Gen. Stat. of 1889, If 1166.) The 
 statute is silent as to the organization. 1 The rule is 'well estab- 
 lished that a corporation must have a full and complete organization 
 and existence as an entity, and in accordance 'with the law to which 
 it oives its origin, before it can assume its franchise or enter into 
 any kind of contract or transact any business ; and -whatever be the 
 mode prescribed by the act of incorporation, a substantial compliance 
 nvith all the provisions of the law under which it is created is re- 
 quired before the corporation can be said to have szich an existence as 
 will entitle it to do business. (4 Am. & Eng. Ency. of Law, 197, 
 
 1 The statutes under which this apparent corporation was formed pro- 
 vided: "Sec. 1155. Private corporations may be created by the volun- 
 tary association of five or more persons, * * ' in the manner mentioned 
 in the following sections. Sec. 1161 . A charter prepared setting forth name, 
 purpose, place of business, term of existence, the number of directors or 
 trustees and the names and residences of those who are appointed for the first 
 year, capital stock, if any, and the number of shares. Sec. 1164. Charter 
 must be subscribed and acknowledged. Sec. 1165. Such charter shall there- 
 upon be filed in the office of the secretary of state, who shall record the 
 same at length in a book kept for that purpose, and retain the original on file 
 in his office. A copy of the charter, or of the record thereof, duly certified by 
 the secretary of state, under the great seal of the state, shall be evidence of 
 the creation of the corporation. Sec. 1166. Period of existence. Sec. 10. 
 The existence of the corporation shall date from the time of filing the char- 
 ter, and the certificate of the secretary of state shall be evidence of the time 
 of such filing. [G. S. 1868, ch. 23, 10, October 31.]"
 
 143 COMMENCEMENT OF CORPORATE EXISTENCE. 567 
 
 and authorities there cited.) Now it is conceded in this case that 
 nothing was done to perfect the organization after the charter was 
 filed. A corporation can not act -without officers and agents, and it 
 is powerless to do anything until its incorporators or promoters give it 
 the means whereby it can act. The words ''organize" or ''organiza- 
 tion" have a well understood meaning; and as we construe them 
 they mean the election of officers, providing for the subscription and 
 payment oj~ the capital stock, the adoption of by-laws, and such other 
 steps as are necessary to endow the legal entity with the capacity to 
 transact the legitimate business for which it was created. In this 
 sense the corporation was not fully organized. While it had an ex- 
 istence, the organization was never completed so that the corporation 
 could do business. 
 
 In the case of Hurt v. Salisbury, 55 Mo. 310, which was an action 
 brought upon a note purporting to have been executed by the directors 
 of an agricultural association, the suit was brought against the direct- 
 ors, upon the ground that the association was not incorporated at the 
 time the note was given, and that the directors were, therefore, indi- 
 vidually liable. It appeared that the association was not fully incor- 
 porated when the note was executed. The law required the charter 
 to be filed with the recorder of the county where the corporation was 
 located, and also in the office of the secretary of state. The char- 
 ter was only filed with the recorder. The court held that the 
 officers of the corporation had no power to issue the note, and that a 
 note issued and signed by them would bind them personally, and not 
 the corporation. The court said, in speaking of the attempted or- 
 ganization of that corporation: 
 
 "It had organized under section 2, chapter 69, General Statutes of 
 1865, page 367, by signing and acknowledging, and recording in the 
 recorder's office of the proper county the articles of association. This 
 step being taken, it was an organized corporation, not for the trans- 
 action of business, but for the purpose of taking the next and last step 
 to complete its authority to transact business and give date to its legal 
 existence. IJntil the officers took this final and necessary step by de- 
 positing and filing in the office of the secretary of state a copy of the 
 articles of association, as they stood recorded in the county, this cor- 
 poration had no power to issue the note sued upon. As it had no 
 power to issue this note, the defendants are undoubtedly liable." 
 
 "If a corporation be illegally formed, its members or stockholders 
 are liable as partners for its acts and contracts, and directors, officers 
 and agents acting and contracting in its name render themselves per- 
 sonally liable." (Beach Priv. Corp., 16; Marshall v. Harris, 55 
 Iowa 182; Kaiser v. Savings Bank, 56 Iowa 104; Coleman v. Cole- 
 man, 78 Ind. 344.) 
 
 While, in this case, the charter was filed with the secretary of state, 
 the corporation had no officers outside of the directors named for the 
 first year. No portion of the capital stock had been subscribed and 
 no books opened, as required by f 1173 of the General Statutes of 
 1889. In fact, nothing had been done to complete the preliminary
 
 568 GENT v. MANUFACTURERS', ETC., INSURANCE co. 144 
 
 business of organizing the corporation. We do not understand that a 
 corporation can proceed to the transaction of business without any 
 portion of its capital stock being subscribed or paid. It may have 
 been the English rule, but in the United States it is otherwise. (Boone 
 Corp., 113). The corporation has no means or capacity to act until 
 some portion of the capital stock named in the charter has been sub- 
 scribed and paid. Some states have, by a legislative rule, made di- 
 rectors of certain corporations jointly and severally liable for all the 
 debts of the corporation, until the whole amount of the capital stock 
 has been paid in. (Rev. Stat. of Wis. 1878, 1901.) 
 
 It is unnecessary for us to consider the other assignments of error, 
 as the view we take of the liability of the plaintiffs in error is not 
 that of stockholders, and hence the rule laid down in the case of Ab- 
 bey v. Dry Goods Company, 44 Kan. 415, has no application in this 
 case. 
 
 The question as to whether or not two of the defendants below 
 were served with summons is not properly raised by the record. The 
 summons is not in the record, and we can not say whether these two 
 defendants were served or not. 
 
 We advise an affirmance of the judgment. 
 
 By the court: It is so ordered. 
 
 All the justices concurring. 
 
 Note. See note to next case, and also to State v. Fidelity Ins. Co., 49 Ohio 
 St. 440, supra, p. 406. 
 
 Sec. 144. Same. 
 
 GENT v. MANUFACTURERS' AND MERCHANTS' MUTUAL INSUR- 
 ANCE COMPANY. 1 
 
 1883. IN THE SUPREME COURT OF ILLINOIS. 107 111. Rep. 652-660, 
 8 Am. and Eng. Corp. C. 306. 
 
 i 
 
 [The insurance law under which defendant was incorporated pro- 
 vided that those desiring to incorporate should file with the auditor of 
 public accounts a declaration signed by them declaring their inten- 
 tion to form an insurance company, and that no mutual company 
 should commence business until agreements had been entered into 
 with at least 200 applicants, the premiums on which should be not 
 lesjs than $100,000, of which $20,000 should be paid in cash, and 
 notes of solvent parties, founded on bona fide applications for insur- 
 ance, should have been received for the remainder, no note to be con- 
 sidered as capital stock unless a policy for one year was issued upon 
 the same within thirty days after organization. Under this law a 
 number of parties, in July, 1880, met, determining to form such a 
 
 1 Statements of facts abridged. Arguments omitted. Only so much of the 
 opinion as relates to the one point given.
 
 144 COMMENCEMENT OF CORPORATE EXISTENCE. 569 
 
 company, published the notice required, filed the declaration with 
 the auditor, with copy of proposed charter; this was approved and 
 certified to the auditor by the attorney-general on July 7, and certain 
 persons were designated to solicit insurance. Gent agreed to take 
 $1,000 insurance, accepted a draft drawn by the secretary of the 
 company, dated Aug. 10, for $30 payable on demand, and gave his 
 note for $150 February 3, 1881 ; application was made to the auditor 
 to have the notes examined ; this was done and some of the notes were 
 found informal and rejected- by the auditor; immediately they pro- 
 ceeded to obtain others, arkl on the 9th of February filed the list with 
 the auditor, received his certificate, and filed it with the county clerk 
 February n ; on the 5th of February plaintiff's property burned, and 
 he notified the secretary February 7. Plaintiff's note was among 
 those upon which the company secured the final certificate of approval 
 of the auditor; on February n the company canceled the note, draft 
 and application of plaintiff, who sues for the loss.] 
 
 MR. JUSTICE WALKER. * * * That a corporation should have a full 
 and complete organization and existence as an entity before it can enter 
 into any kind of a contract or transact any business would seem to be 
 self-evident. This is unconditionally true, unless the act of incorpo- 
 ration authorizes the corporators to perform acts and enter into con- 
 tracts to bind the company when it shall be organized. As well say 
 a child in ventre sa mere may enter into a contract, or that its parents 
 may bind it by contract. A corporation, until organized, has no 
 being, franchises or faculties. Nor do those engaged in bringing it 
 into being have any power to bind it by contract, unless so authorized 
 by the charter. Until organized as authorized by the charter there is 
 not a corporation, nor does it possess franchises or faculties for it or 
 others to exercise until it acquires a complete existence. By its birth, 
 so to speak, it for the first time acquires its faculties to transact its busi- 
 ness and perform its functions. Then, do these sections authorize the 
 corporations to issue policies to individuals who apply for insurance, 
 and give their premium notes? They are authorized to take such ap- 
 plications and notes as a fund or capital to authorize the granting of the 
 charter, and to enable the company to transact its business when or- 
 ganized. This is manifestly the true construction, as the statute pro- 
 vides that if a policy of insurance running at least twelve months is 
 not issued in thirty days after the organization of the company, the 
 premium note shall not represent a portion of the capital stock of the 
 company. If it was intended that the application for the policy and 
 the giving of the premium note should constitute a contract to insure, 
 such a provision would not have been enacted ; but by its adoption it 
 is manifest that the general assembly intended that the application and 
 note should be held simply to be acted upon after the organization 
 should be completed. If such was the purpose, and of it we have no 
 doubt, then there can be no claim that there was a contract of insur- 
 ance, but simply that if the property was still in existence when the com- 
 pany should be organized, the applicant would be entitled to a policy 
 on the terms proposed. It was simply a proposition or an application
 
 5/o GENT v. MANUFACTURERS', ETC., INSURANCE co. 144 
 
 for a policy after the organization should be had, and the company 
 authorized to take risks and issue policies. Beyond that the company 
 had no power to bind the future company. Nor does the statute 
 authorize the corporators to contract for and issue policies. Had they 
 issued a policy in form, would any one claim that a suit could be 
 maintained on it against the company? Surely not, because no power 
 to do so is conferred by the statute. And if a formal written policy 
 would be invalid, how can it be said that a mere verbal agreement for 
 insurance can be held binding? 
 
 In the case of Rockford, Rock Island and St. Louis R. Co. v. Sage, 
 65 111. 328, it was held that a railroad incorporation was not liable for 
 services rendered before its organization, unless the company promised 
 to pay after it was organized. In Stowe v. Flagg, 72 111. 397, it was 
 held that the agreement of parties intending to and engaged in form- 
 ing a manufacturing corporation to put in property as stock, but which 
 never was subscribed, did not bind the corporation, nor did the prop- 
 erty become that of the corporation, although it was used by the com- 
 pany. In the case of Western Screw and Manufacturing Co. v. 
 Cousley, 72 111. 531, it was held where the corporators, before the 
 organization of the company was completed, employed a superintend- 
 ent, and he entered upon the duties of the place, and rendered serv- 
 ices for the inchoate company, it, when organized, was not liable to 
 pay for such services. 
 
 This statute only authorizes the company to transact business upon 
 filing the certificate of the auditor of public accounts with the proper 
 county clerk. The transaction of business in the name of the corpo- 
 ration before that certificate shall be thus filed is unauthorized. But 
 in this case no policy was issued, or intended to be issued, when the 
 application and note were executed, and the case falls within the 
 principles announced in the cases above referred to, and they are con- 
 clusive of the question. 
 
 We perceive no error in the record, and the judgment of the appel- 
 late court is therefore affirmed. 
 
 Judgment affirmed. 
 
 Note. See, 1891, McVicker v. Cone, 21 Ore. 353; 1894, Nemaha Coal & M. 
 Co. v. Settle, 54 Kan. 424; 1894, Aspen Water Co. v. City of Aspen, 5 Colo. 
 App. 12, 1 A. & E. C. C. (N. S.) 12; 1894, Owen v. Shepard, 19 U. S. App. 
 336 ; 1896, Loverin v. McLaughlin, 161 111. 417. See Elliott, 44; I Thompson, 
 40, 217.
 
 145 COMMENCEMENT OF CORPORATE EXISTENCE. 571 
 
 Sec. 145. Same. 
 
 () Immediately upon filing articles of incorporation, without 
 stock subscription or organization. 
 
 SINGER MANUFACTURING CO. v. PECK. 1 
 
 1896. IN THE SUPREME COURT OF SOUTH DAKOTA. 9 S. Dak. 29, 
 4 Am. & Eng. C. C. (N. S.) 591, 67 N. W. Rep. 947-48. 
 
 [Appeal from the circuit court, Minnehaha county; Joseph W. 
 Jones, Judge. 
 
 Action by the Singer Manufacturing Company against Porter P. 
 Peck. From an order sustaining a demurrer to the complaint, 
 plaintiff appeals. Affirmed.] 
 
 CORSON, P. J. This is an appeal from an order sustaining a de- 
 murrer to the complaint. The allegations in the complaint are in 
 substance as follows: That the plaintiff is a corporation; that the 
 Wohlgemouth Shirt Company is a duly organized corporation of the 
 state of South Dakota ; that said last named corporation was organized 
 and incorporated by five persons named, of whom the defendant was 
 one ; that said corporation was one de facto only, and had no legal 
 rights to transact business or obtain credit; that it did obtain a large 
 amount of credit, and that it purchased of the plaintiff a large num- 
 ber of sewing machines, of the value of six hundred dollars ($600) ; 
 that said corporation had no capital, and none of its capital stock was 
 paid for, and that said defendant Peck was the treasurer of said cor- 
 poration; that an action was duly commenced by this plaintiff, and 
 prose_cuted to judgment, against the said Wohlgemouth Shirt Company, 
 execution issued thereon, and the same returned unsatisfied, "and 
 that said corporation has no property, and is totally and wholly in- 
 solvent. (4) And the said plaintiff further complains and alleges 
 that said corporation never had any funds, * * * and that the 
 holding out of said corporation as a legal corporation, and one that 
 had complied with the law by the said corporators, was a fraud upon 
 the persons from whom they obtained goods upon credit, and espe- 
 cially upon this plaintiff, all of which was well known to the incorpo- 
 rators and organizers of said company, and . especially to the above 
 named defendant. (5) And the plaintiff further alleges that it has 
 no way of collecting said indebtedness unless the incorporators of said 
 company shall be made to pay such indebtedness. Plaintiff, there- 
 fore, demands judgment against the defendant, Porter P. Peck, for 
 the amount ' due on plaintiff's judgment against the Wohlgemouth 
 Shirt Company, together with the costs and disbursements of this ac- 
 tion, and such other and further relief as to the court may seem just 
 and equitable." 
 
 1 Arguments omitted.
 
 5/2 SINGER MANUFACTURING CO. V. PECK. 145 
 
 Only the substance of such part of the complaint as we deem ma- 
 terial under the stipulation hereinafter referred to has been given. To 
 the complaint a demurrer was interposed by the defendant, one of the 
 grounds of which was that the complaint did not state facts sufficient 
 to constitute a cause of action. The parties in the court below en- 
 tered into a stipulation, the material part of which is as follows: "On 
 said appeal the question on which the case shall be decided is the 
 question as to whether the complaint states facts sufficient to consti- 
 tute a cause of action against said defendant, on the ground that he 
 was one of the incorporators of the Wohlgemouth Shirt Company, 
 and that the said complaint shall be construed solely as attempting to 
 constitute a cause of action against him ; not upon contract for liability 
 upon an unpaid stock subscription, but upon his being one of said in- 
 corporators, and upon his alleged liability, on the ground that the 
 holding out of said corporation as a legal corporation was a fraud upon 
 the plaintiff." Section 2905, Comp. Laws, 1 provides: "Upon the 
 filing of articles of incorporation with the secretary of the territory 
 he shall issue to the corporation, over the great seal of the territory, 
 a certificate that the articles containing the required statement of facts 
 have been filed in his office ; and thereupon the persons signing the 
 articles, and their associates and successors, shall be a body politic 
 and corporate by the name and for the purposes stated in said articles." 
 When the certificate specified in this section is issued, the corporation 
 would seem to be perfected, and possess all the poivers of a corpora- 
 tion. There seems to be no provision in the statutes of this state re- 
 guiring any part of the capital stock to be paid in or subscribed as a 
 condition precedent upon -which the corporation is authorized to trans- 
 act business. 
 
 In most of the states their incorporation acts provide for the sub- 
 scription and payment of a certain proportion of the capital stock as a 
 condition to the right of the corporation to transact business. When 
 such is the case, incorporators who proceed to incur debts in the name 
 of the corporation before such funds are provided have been held lia- 
 ble for such debts. In Wechselberg v. Bank, 12 C. C. A. 56, 64 Fed. 
 90, and Burns v. Beck (Ga.), 10 S. E. 121, incorporators were held 
 liable. In the former case the court says, in the majority opinion: 
 
 1 Section 2902 of the Civil Code of Dakota Territory (still in force in South 
 Dakota when above case was decided) provides that the articles of incorpo- 
 ration shall state the name, purpose, place of business, terms, number of 
 directors, names and residences of such of them who are to serve until the 
 election of such officers and their qualifications, and if there be a capital 
 stock, its amount and the number of shares. Section 2904 requires the 
 articles to be subscribed by three or more, and acknowledged. Section 2905 
 is given in the case above. Section 2907 makes a certified copy of the articles 
 prima facie evidence of the existence of the corporation. Section 2913 pro- 
 vides that after the secretary of the territory issues the certificate of incorpo- 
 ration, "the directors named in the articles of incorporation must proceed in 
 the manner specified or provided by their by-laws, or if none, then in such 
 manner as they may by order adopt, to open books of subscription to the 
 capital stock then unsubscribed and to secure subscriptions to the full amount 
 of the fixed capital, and to levy assessments and installments thereon, etc."
 
 145 THE COMMENCEMENT OF CORPORATE EXISTENCE. 5/3 
 
 "By the common law there was no individual liability of the members 
 of a corporation for corporate debts beyond the enforcement of their 
 agreed contributions to the capital stock. * * * Therefore, if 
 complete corporate existence was obtained and perfected by the act of 
 filing the articles of association without compliance with any of the 
 requirements of 1773, the associates are not subject to common law 
 liability. On the other hand, it is well settled that an attempted or 
 pretended incorporation, not perfected as the enabling act requires, 
 does not confer this immunity, and all who are parties to the simulated 
 corporation as associates or shareholders are held liable at common 
 law for debts contracted under the corporate guise. While the courts 
 have differed in naming this liability whether in the nature of co-part- 
 ners or resting 'upon the ordinary principles of contract and agency,' or 
 upon fraud they agree in holding liable in some form all who are 
 engaged in the defective corporate enterprise." The court then pro- 
 ceeds to discuss the various provisions of the Wisconsin statute and 
 arrives at the conclusion that the incorporators, having proceeded to 
 contract the debt before the fund required by the statute to perfect the 
 corporation had been provided, were liable, as the act provided that 
 the corporation should not exercise corporate functions, that is, "the 
 transaction of business with any others than its members, until it should 
 have provided a capital stock in conformity with 1773-" 
 
 In the case of Burns v. Beck, supra, two of the corporators held 
 the corporation out to the world as being duly organized, while ac- 
 cording to the allegations of the complaint all the stock had not been 
 subscribed and 10 per cent, paid in, as required by the statute of 
 Georgia, as conditions precedent to the right to the transaction of 
 business by the corporation. Neither these nor any other conditions 
 precedent to the corporation transacting business in this state have 
 been imposed. The credit, therefore, in the two cases cited and they 
 seem to be all the cases bearing upon this question that the researches 
 of counsel have been able to bring to our attention was obtained by 
 the wrongful acts of the corporators in holding out the corporation as 
 authorized to transact business as a corporation, when, in fact, the 
 corporation was not so authorized. The corporators in these cases 
 committed a fraud upon the creditors. But in the case at bar it docs 
 not appear that the corporators did any act that they -were not fully 
 authorized to do under the statute, or that they, by act or -word, made 
 any representations they were not legally authorized to make. This 
 being so, we can discover no principle of law by which the defend- 
 ant would be liable under the allegations of the complaint. In holding 
 out the corporation as legally incorporated, the defendant committed 
 no fraud, as the plaintiff alleges, and correctly, that the corporation 
 was duly organized. It is true, it is further alleged that it was only 
 a de facto corporation, but that is a mere conclusion of law. The 
 fact that our statute does not require of corporations the subscription 
 to and payment of a certain per cent, of its capital stock before the cor- 
 poration can transact business imposes upon persons dealing with cor- 
 porations organized under the laws of this state greater caution and
 
 f 
 
 5/4 WECHSELBERG V. FLOUR CITY NATIONAL BANK. 146 
 
 vigilance, but this court can not impose upon corporations a greater 
 liability than is imposed upon them by law, and the law not having 
 specially prescribed that corporators shall be liable in such a case as 
 that described by the complaint, and no actual fraud or misrepresen- 
 tation being alleged, this court can not discover any ground upon 
 which the defendant can be held liable. He can not be held liable at 
 common law. He can not be held liable on the gixumd of misrepre- 
 sentations, as he has made none, nor upon the ground of fraud, as 
 none is alleged. We are of the opinion, therefore, that the court 
 properly sustained the demurrer to the complaint, and the order of the 
 circuit court appealed from is affirmed. 
 
 Note. See, also, 1889, National Bank of Jefferson v. Texas Investment Co., 
 74 Tex. 421, 27 A. & E. C. C. 358; 1890, Vanneman v. Young, 52 N. J. Law 
 403, 32 A. & E. C. C. 8; 1894, State of Missouri, ex rel., etc., v. American 
 Med. Col., 59 Mo. App. 264. 
 
 Sec. 146. Same. 
 
 (*:) At the time of filing the articles of association with the 
 proper officer, but perfect or adult corporate capacity does not ex- 
 ist until the capital stock is provided as required. 
 
 WECHSELBERG v. FLOUR CITY NATIONAL BANK. 1 
 
 1894. IN THE U. S. CIRCUIT COURT OF APPEALS, 7th Circuit, East- 
 ern District of Wisconsin. 24 U. S. Appeals Rep. 308-330. 
 
 Before WOODS, circuit judge, and BUNN and SEAMAN, district 
 judges. 
 
 This was an action at law by the Flour City National Bank against 
 Julius Wechselberg, the plaintiff in error, Ernest S. Moe and Clar- 
 ence H. Williams, as defendants below, for the recovery of the 
 amount due upon a promissory note for $3,000, dated September 18, 
 1889, made by the Northwestern Collection Company to the North- 
 western Collection, Loan and Trust Association, and indorsed to said 
 bank. The alleged liability of the defendants below is based upon 
 their acts in the incorporation of the Northwestern Collection Com- 
 pany as a corporation under the laws of Wisconsin, and the transac- 
 tion at large of business thereunder, without having capital paid in 
 as required by the statute, whereby it is asserted that they became 
 personally obligated to pay the indebtedness so contracted. * * * 
 
 SEAMAN, District Judge, after stating the case as above, delivered 
 the opinion of the court. 
 
 The plaintiff in error was held by the circuit court to be jointly lia- 
 able with the other defendants below for the indebtedness contracted 
 by their assumed corporation, the Northwestern Collection Company, 
 in the absence of any capital stock. This liability was based upon 
 
 1 Statement of facts abridged. Dissenting opinion of WOODS, J., omitted.
 
 146 THE COMMENCEMENT OF CORPORATE EXISTENCE. 575 
 
 the facts found, in his relation and conduct as a corporator, and the 
 court did not undertake to determine at the trial whether it arose un- 
 der the statute or at common law. 
 
 Corporations are entirely the creatures of statute, and when duly 
 formed, one of their chief characteristics, distinguishing them from part- 
 nerships and other joint ventures, is the exemption of the individual asso- 
 ciates from liability for the corporate obligations, except as the enabling 
 act may impose liability. This immunity, which is an important ad- 
 vantage of membership, can only be secured by compliance with the 
 statutory requirements for incorporation. In the case of corporations 
 organized for a purpose, and under a law requiring capital stock, the 
 capital becomes a fund to which creditors must look for satisfaction 
 of debts ; it is a substitute for individual liability, and constitutes a 
 trust fund for the benefit of the creditors. Upton, Assignee, v. Tribil- 
 cock, 91 U. S. 45 ; Alder v. The Milwaukee Patent Brick Manufact- 
 uring Company, 13 Wis. 57 ; i Beach on Private Corporations (1891), 
 116. Capital stock is, therefore, the vital requirement of every busi- 
 ness corporation, and its actual existence is usually placed by enabling 
 statutes as a condition precedent to corporate existence. 
 
 It is found and conceded in this case that there was no capital stock 
 in fact, and no capital paid in or subscribed ; that the articles of in- 
 corporation which were entered into by the plaintiff in error with the 
 other defendants below prescribed $5,000; that these articles were 
 duly executed by the three parties, and duly filed and recorded ; that 
 without capital and without the actual taking of any further steps 
 toward organization, business was opened by Moe and Williams as 
 actors in the name of the assumed corporation ; that this was known 
 to the plaintiff in error, but that he did not take part in their opera- 
 tions, or receive any profit or emolument; that printed matter was 
 used and distributed, wherein the plaintiff in error was named as its 
 vice-president; and while "the evidence does not establish that he had 
 actual knowledge" of this use of his name, it is found that "under 
 the circumstances, if he did not know it, he could have ascertained 
 the fact by merely slight attention to the matter, and was guilty of 
 negligence in not knowing it." Furthermore, it is recited in the ar- 
 ticles which were entered into that "the corporators should compose 
 the first board of directors," and, although such a provision would 
 not control an organization effected by stockholders, who are em- 
 powered by the statute to elect directors, it may be considered as a 
 fact tending to show intention or knowledge. The debt in question 
 was incurred in the business so carried on, and in the line apparently 
 contemplated by the articles of incorporation. 
 
 The statute which authorizes incorporation for the purposes stated 
 in these articles in chapter 86, in title 19 of the Revised Statutes of 
 Wisconsin, contained, with amendments, in i Sanborn & Berryman's 
 Annotated Statutes, 1052. Section 1771 provides that "three or more 
 adult persons, residents of this state, may form a corporation in the 
 manner provided in this chapter," for objects there named. Section 
 1772 provides that "in order to form such a corporation, the persons
 
 5/6 WECHSELBERG V. FLOUR CITY NATIONAL BANK/ 146 
 
 desiring so to do shall make, sign and acknowledge written articles," 
 with declarations of (i) purpose, (2) name and location, (3) capital 
 stock, if any, and number and amount of shares thereof, (4) desig- 
 nation of general officers and number of directors, (5) duties of 
 officers, (6) conditions of membership, (7) "such other provisions or 
 articles, if any, not inconsistent with law, as they may deem proper." 
 The section further provides that the original articles, or a true, verified 
 copy thereof, must be filed for record with the register of deeds of the 
 county, "and no corporation shall, until such articles be so left for rec- 
 ord, have legal existence." It also declares that "in stock corporations, 
 persons holding stock, according to the regulations of the corporation, 
 and they only, shall be members." A verified copy of the articles 
 must also be filed with the secretaiy of state, or penalty is incurred. 
 There was in this case formal compliance with the foregoing require- 
 ments, but entire failure to. complete incorporation under the succeed- 
 ing section. 
 
 By section 1773 it is prescribed that until directors are elected the 
 signers of the articles, shall "have direction of the affairs of the cor- 
 poration, and make such rules as may be necessary for perfecting its 
 organization, accepting members or regulating the subscription to the 
 capital stock," and that in stock corporations the first meeting may be 
 held when half of the capital stock is subscribed, and may be called 
 by any two of the signers of the articles upon certain notice, or be held 
 without notice when all subscribers for stock are present. It then further 
 provides: "No such corporation shall transact business with any 
 others than its members, until at least one-half of its capital shall have 
 been duly subscribed, and at least 20 per centum thereof actually paid 
 in ; and if any obligation shall be contracted in violation hereof, the 
 corporation offending shall have no right of action thereon ; but the 
 stockholders then existing of such corporation shall be personally liable 
 upon the same." 
 
 Section 1775 declares that "every such corporation, when so organ- 
 ized, shall be a body corporate," and have "the powers of a corpora- 
 tion conferred by these statutes," etc. 
 
 The question of common-law liability presents itself at the threshold 
 of this inquiry, whether considered as a primary ground or for the 
 purpose of interpreting the statute. As a primary ground the plaintiff 
 in error contends that it must be excluded here for two reasons, (i) 
 because the complaint is manifestly based upon the statute and intends 
 a charge of statutory liability, and (2) because there is a finding by 
 the trial court of the existence of incorporation. It is sufficient answer to 
 the first objection that it is raised here in the first instance, that the 
 evidence was all received without exception for variance, and that the 
 facts are clearly established by the findings. Under the rule stated 
 in Wasatch Mining Company v. Crescent Mining Co., 148 U. S. 293, 
 approving the rule pronounced under the New York Code of Pro- 
 cedure, in Tyng v. The Commercial Warehouse Company of New 
 York, 58 N. Y. 308, 313, the objection can not now stand "to shut 
 out from consideration the case, as proved." In Wisconsin, section
 
 146 THE COMMENCEMENT OF CORPORATE EXISTENCE. 577 
 
 2669 of the Revised Statutes provides that no "variance between the 
 allegation in a pleading and the proof shall be deemed material, 
 unless it shall actually mislead," and the decisions under it, in accord 
 with the doctrine above stated, hold that "the variance may be wholly 
 disregarded," and that "the pleadings may at any time be amended 
 to conform with the issue really tried," or will be regarded on appeal 
 as so amended. Stetler v. The Chicago and Northwestern Railway 
 Company, 49 Wis. 609, 613. With reference to the force of the finding, 
 all of the facts are clearly stated, and it remains for the court of re- 
 view to determine their legal effect. An expression of opinion by the 
 trial court has suggestive value, but is not conclusive, where the facts 
 are undisputed. The case is, therefore, open for any liability which 
 may result from the facts established, and the only question on the 
 writ of error is, Do the facts found support the judgment? 
 
 By the common law there was no individual liability of the mem- 
 bers of a corporation for corporate debts, beyond the enforcement of 
 their agreed contributions to the capital stock. Terry v. Little, 101 
 U. S. 216; United States v. Knox, 102 U. S. 422; i Beach on Pri- 
 vate Corporations (1891), 143. Therefore, if complete corporate 
 existence was obtained and perfected by the act of filing the articles 
 of association, without compliance with any of the requirements of 
 1773, the associates are not subject to common law liability. On 
 the other hand, it is well settled that an attempted or pretended in- 
 corporation, not perfected as the enabling act requires, does not con- 
 fer this immunity, and all who are' parties to the simulated corpo- 
 ration as associates or shareholders are held liable at common law 
 for debts contracted under the corporate guise. While the courts 
 have differed in naming this liability, whether in the nature of co- 
 partners, or resting "upon the ordinary principles of contract and 
 agency," or upon fraud, they agree in holding liable, in some form, 
 all who are engaged in the defective corporate enterprise. Fuller v. 
 Rowe, 57 N. Y. 23; Pettis v. Atkins, 60 111. 454; Hill v. Beach, 
 12 N. J. Eq. 31; Coleman v. Coleman, 78 Ind. 344; Abbott v. 
 Omaha Smelting and Refining Company, 4 Neb. 416; Kaiser v. 
 Lawrence Savings Bank, 56 Iowa 104; Lawler v. Murphy, 58 Conn. 
 294, 313; Johnson v. Corser, 34 Minn. 355; Hospes v. Northwestern 
 Manuf'g & Car Co., 48 Minn. 172. 
 
 This statute does not, in terms, declare that compliance with 1773 
 shall be a condition precedent to corporate existence. If there were 
 a decision by the supreme court of Wisconsin construing the statute 
 with reference to the time or event, in the proceeding upon which the 
 incorporation is perfected, that construction would be controlling; 
 but the only case called to our attention in that view is Harrod v. 
 Hamer, 32 Wis. 162. That arose under a previous act (act of April 
 2, 1853, Rev. Stat. of 1858, ch. 73, 17), which differs essentially 
 from the instant statute in its method of incorporation and in the status 
 of the incoiporators (who are thereby constituted stockholders), and 
 therefore is not applicable here. 
 
 37 WIL. CASKS.
 
 578 WECHSELBERG V. FLOUR CITY NATIONAL BANK. 146 
 
 The statute must be considered in its entirety to ascertain its mean- 
 ing, and that exposition ought to be adopted, as stated by Mr. Justice 
 Story, in Minor v. The Mechanics' Bank of Alexandria, i Pet. 46, 
 63, "which carries into effect the true intent and object of the legis- 
 lature in the enactment." The purpose is clear, that corporate being 
 shall be dated from and conferred through the act of filing the exe- 
 cuted articles of incorporation for record, as one of the conditions 
 precedent, but while the statute refers to it as a corporation at that 
 stage, a limitation is added that it shall not exercise corporate func- 
 tions, viz., "the transaction of business with any others than its mem- 
 bers," until it shall have provided capital stock in conformity with 
 section 1773. Such is the view recognized in Anvil Mining Com- 
 pany v. Sherman, 74 Wis. 226, 232, where it is said that this statute 
 "provides for the preliminary organization of the corporation, and 
 then limits its power to enter upon its general business" by 1773. 
 The corporation has obtained the right to exist, but can only be said 
 to have existence in a qualified sense, for it is not possessed of the 
 attributes or privileges of perfected incorporation ; and 1775, which 
 declares these powers and privileges, vests them only when organized 
 as required by the preceding sections. A quotation from the brief of 
 one of the learned counsel for the plaintiff in error, arguing against 
 liability as a stockholder, well defines this embryonic status, and is 
 adopted here. It reads, including italics, as follows: "The truth 
 is that no corporation was formed except in a very limited and 
 qualified sense. It is true the' statute uses the 'word 'corporation.'' 
 It is, however, a bare, legal entity, which through organization may 
 become a corporation, having members and capable of transacting 
 business. * * * It may be likened to the hull of a ship, with- 
 out rudder or masts or gearings." The public are authorized to 
 treat it as a corporation from the recording of the articles, and may 
 look to the recorded articles for its purposes and objects. Compli- 
 ance with 1773 is imposed upon the corporators in the first instance, 
 and when they have provided for stockholders the duty devolves upon 
 the latter, whose action is matter only of corporate record and not of 
 general public record. Until that provision of capital is furnished 
 as a fund to take the place of personal liability, the intention is ap- 
 parent to withhold the special privilege of complete incorporation 
 which exempts the members from such liability. The inhibition is, in 
 effect, against any transactions except such as tend to organization, 
 i. e., perfecting incorporation, and the purpose is to protect those 
 who may be imposed upon by premature assumption of corporate 
 functions, and not to save the corporation or its projectors from just 
 liability. Anvil Mining Company v. Sherman, supra. This is not 
 like the technical requirement placed by a Michigan statute upon the 
 officers to file their articles of association in a certain place, simply 
 forbidding business until compliance, without declaring any effect for 
 non-compliance, of which it was held, in Whitney v. Wyman, 101 
 U. S. 392, that the provision was not made a condition precedent to 
 incorporation, and it is not like the technical requirement found in
 
 146 THE COMMENCEMENT OF CORPORATE EXISTENCE. 579 
 
 the former Wisconsin statute that the officers should file a certificate 
 of incorporation before transacting business, held in Harrod v. Hamer, 
 supra, not a condition precedent; but the demand here is of the very 
 essence of incorporation, that there shall be capital stock and stock- 
 holders. A corporation can not come into existence without members, 
 and stockholders are the only members of a stock corporation. 
 
 In the light of the evident purposes of this enactment and of these 
 distinctions, and considering that the requirements imposed by section 
 1773 are of the essence of corporate organization, and are followed by 
 the declaration in section 1775 of complete incorporation, "when so 
 organized," we are of opinion that it was the legislative intent that 
 full effect as a corporation should not obtain until compliance, and 
 that the common-law liability is preserved up to that event. While sec- 
 tion 1773 provides that any obligations contracted before compliance 
 shall not give a right of action to the corporation, "but the stockhold- 
 ers then existing" shall be personally liable, this imposition is not in 
 derogation of the common law, but is rather declaratory of or sup- 
 plements it. Even as a statutory liability, it may be remarked in pass- 
 ing that this is not penal in its nature, and does not call for the strict 
 construction which is claimed in another branch of the argument for 
 the plaintiff in error, but it is one of contract which the members take 
 upon themselves in forming a corporation, and is primary and abso- 
 lute. Flash v. Conn, 109 U. S. 371 ; Coleman v. White, 14 Wis. 
 700; Day v. Vinson, 78 Wis. 198. For the consideration here, the 
 statute must be taken in its entirety as an enactment granting privi- 
 leges ; when privileges are asserted under it the interpretation of the 
 statutory prerequisites should be reasonable, and the legislative intent 
 should be given effect and not thwarted. 
 
 So construed, the parties who entered into the assumed corporate 
 undertaking will be held to liability for obligations which have been 
 incurred under that assumption. Is the plaintiff in error within that 
 rule? He executed the agreement of articles by which he engaged 
 with the other defendants "to form a corporation," which should have 
 a capital stock of $5,000 ; he was party to every step which was taken 
 under the statute; without his participation (or that of some third 
 party) even the semblance of corporate existence could not have been 
 obtained for the venture. This act, followed by the filing of the 
 instrument, was a solemn acceptance, by the parties jointly, of the 
 privileges of incorporation. In the argument for the plaintiff in 
 error it is insisted that these corporators are merely nominal par- 
 ties, and should not be regarded as contractors in any sense; that it 
 has become common practice to take, for the time being, any per- 
 son who may be convenient for the pur-pose, leaving the real project- 
 ors to come in with the subscription for stock? Such view or 
 practice is entirely foreign to the manifest intent of the statute, as 
 the organization is placed entirely within control of the signers, 
 and without their action to that end strangers can not obtain ad- 
 mission as stockholders. They occupy a contract relation. It is 
 true that the relation is absolved or a new one formed when organ-
 
 580 WECHSELBERG V. FLOUR CITY NATIONAL BANK. 146 
 
 ization is effected ; that the office of corporator disappears ivhen 
 that of stockholder is taken on. It is also true that there may be an 
 abandonment of the venture without any liability resting upon the 
 corporators, but upon the condition imposed by the common law that 
 no obligation shall have been incurred in the name of that relation, 
 viz. : by "assuming to act in a corporate capacity." Fuller v. Rowe, 
 57 N. Y. 23, 26. Had these articles read that the signers agreed to 
 form a partnership with $5,000 capital, instead of a corporation, there 
 would have been no doubt of joint liability for contracts entered into 
 by either in the co-partnership name and within its scope. The agree- 
 ment here is to form a corporation, with capital stock of $5,000; it is 
 made a public record, as the statute requires. So far as the public is 
 concerned, this record is the only evidence of incorporation which 
 comes to notice. The corporate capacity there promised was forth- 
 with assumed, as the plaintiff in error well knew, and he can not be 
 heard to evade liability upon the plea that they failed to put in the 
 capital and perfect organization. McHose & Co. v. Wheeler, 45 Pa. 
 St. 32, 40. On behalf of the plaintiff in error it is contended that he 
 is not liable, because he did not participate in the business which was 
 undertaken, and it is not found that he had actual knowledge of the 
 use of his name as an officer. But it is found that "under the circum- 
 stances, if he did not know it, he could have ascertained the fact by 
 merely slight attention to the matter, and was guilty of negligence in 
 not knowing it." This imputes knowledge. If he remained igno- 
 rant of the use of his name in the face of such circumstances, where he 
 had given its use for the inception of the enterprise, and where slight 
 attention would have brought him knowledge, he is chargeable with 
 notice. The culpable negligence bars the excuse of ignorance. 
 
 Upon this record all of the signers of the articles of incorporation 
 have made themselves parties to the assumption of corporate powers, 
 and they are jointly bound for the indebtedness which was therein 
 contracted. Their liability is of the same nature which would be im- 
 posed "if the original plan had been to form a partnership." Cook 
 on Stock and Stockholders (3d ed.), 235. The agreement which 
 gave color to the assumed corporate action is the foundation. The 
 reason for holding the liability is well stated in Fredendall v. Taylor, 
 26 Wis. 286, 290, as springing "from the fact that, there was no re- 
 sponsible body or corporation behind them ;" having no principal they 
 bound themselves individually. Lewis v. Tilton, 64 Iowa 220, is to 
 the same effect. 
 
 It is not essential that parties dealing with the assumed corporation 
 should have acted with knowledge or upon the faith of Wechselberg's 
 relation to it. The rule stated in Thompson v. First National Bank 
 of Toledo, in U. S. 529, is not applicable. There it was sought to 
 recover upon a co-partnership debt from one who was not a partner 
 in fact, but had been held out as such, without credit being given on 
 the faith or with knowledge of such holding out. Recovery was de- 
 nied because there was no contract relation and no ground for estoppel. 
 In the case at bar there is primary contract liability, and it is not
 
 147 THE COMMENCEMENT OF CORPORATE EXISTENCE. 581 
 
 dependent upon the knowledge or understanding of those dealing 
 with the purported corporation. Pullman v. Upton, 96 U. S. 328, 
 citing Adderly v. .Storm, 6 Hill 624; Pierce v. Bryant, 5 Allen 
 (Mass.) 91. 
 
 In view of this determination of liability at common law we are of 
 opinion that judgment was properly entered against the plaintiff in 
 eiTor, and it is unnecessary to consider the question of statutory lia- 
 bility, which is well presented in the briefs and oral arguments. 
 
 The judgment will be affirmed. 
 
 Note. Compare, 1864, Ashtabula and New Lisbon R. Co. v. Smith, 15 Ohio 
 St. 328; 1897, Badger Paper Co. v. Rose, 95 Wis. 145; 1898, Schofield G. & P. 
 Co. v. Schofield, 71 Conn. 1. 
 
 Sec. 147. Same. 
 
 (d~) As soon as its first meeting has been held and officers 
 chosen, if not immediately upon signing the articles of association; 
 but until the division into shares, the associated members hold the 
 whole capital stock in common. 
 
 HAWES ET AL. v. ANGLO-SAXON PETROLEUM COMPANY ET AL. 
 
 1869. IN THE SUPREME COURT OF MASSACHUSETTS. 101 Mass. 
 
 Rep. 385-398. 
 
 [Bill in equity, filed February 2, 1867, to charge individual de- 
 fendants as members or stockholders in a manufacturing corporation, 
 under the statute of 1862, ch. 218, which declares, in section 2, that 
 *'the members or stockholders" in such a corporation shall be jointly 
 and severally liable for such of its debts as may be contracted before 
 the capital is fully paid in and certificate thereof duly recorded. 
 
 On March 16, 1865, the defendants signed certain articles bearing 
 that date, certifying that the subscribers "hereby associate themselves 
 together as a corporation under the provisions of the Gen. Stat.,ch. 61, 
 and the several acts in addition thereto, for the purpose of carrying on 
 the business of mining oil, coal and other minerals; and agree," 
 third, that "the amount of capital stock of said corporation is hereby 
 fixed and limited at $500,000;" fourth, that "the said corporation 
 shall be established and have its principal place of business in Bos- 
 ton, and may prosecute its business without and beyond the limits of 
 the commonwealth, as the corporation elect." On April i, 1865, the 
 subscribers of these articles held their first meeting and chose officers. 
 
 In the superior court in Suffolk, at October term, 1866, the plaint- 
 iffs recovered judgment against the Anglo-Saxon Petroleum Com- 
 pany, by the default of the corporation, after filing an affidavit of 
 merits and an answer, for $4,231.71 damages and $24.07 costs, in an 
 action begun March 17, 1866, on an account dated March 29, 1865, 
 for the price of three steam-engines and boilers. On this judgment 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 582 HAWES V. ANGLO-SAXON PETROLEUM CO. 1 47 
 
 execution was issued November 16, 1866, and returned wholly un- 
 satisfied January 15, 1867. 
 
 "The stock of said Anglo-Saxon Petroleum Company was never 
 divided into shares, and never divided or apportioned among said 
 subscribers. No capital was ever paid in, and no certificate of any 
 payment of capital was ever recorded. No part of the amount due 
 on said judgment has ever been paid, and no change has occurred 
 among said subscribers to said articles."] 
 
 GRAY, J. All that is necessary to constitute a corporation aggre- 
 gate is the grant of a franchise by the government, assented to by the 
 grantees. In the case of the creation of a private corporation by 
 special charter, indeed, an acceptance is ordinarily required in order 
 to give it effect. Angell & Ames on Corporations, 81, 82. But 
 an act of the legislature, incorporating certain persons ivho have ap- 
 plied for a charter, and their associates, may constitute the persons 
 named a corporation at once without further action on their part, 
 either in the admission of associates, the choice of officers, or the di- 
 vision of the capital stock. Frost v. Frostburg Coal Co., 24 How. 
 278; Day v. Stetson, 8 Greenl. 365; Penobscot Boom Co. v. Lam- 
 son, 16 Maine 224; New York Fire Department v. Kip, 10 Wend. 
 266; Narragansett Bank v. Atlantic Silk Co., 3 Met. 282; Walworth 
 v. Brackett, 98 Mass. 98; Gen. Stat. ch. 68, 3. 
 
 By the Gen. Stat., ch. 61, i, "three or more persons who shall 
 have associated themselves together by articles of agreement in writ- 
 ing, for the purpose of carrying on any mechanical, mining, quarrying 
 or manufacturing business, except that of distilling or manufacturing 
 intoxicating liquors, and shall have complied with the provisions of this 
 chapter, shall be and remain a corporation under any name indicated in 
 their articles of association, and which is not previously in use by any 
 other corporation or company." The meaning and extent of the clause 
 which requires that the associates "shall have complied with the provis- 
 ions of this chapter" maybe better understood by referring to the statute 
 of 1851, ch. 133, the first general law which authorized such corpo- 
 rations to be formed by voluntary association, and the intervening acts 
 in addition thereto, of all which the sixty-first chapter of the General 
 Statutes is substantially a re-enactment. By section I of Statute 1851, 
 ch. 133, persons who should "associate themselves together according 
 to the provisions of this act" under any name by them assumed, for 
 either of the purposes specified, and who should "comply with all 
 the provisions of this act" were declared to be a body politic and 
 corporate. All the provisions of that act, which such a corporation 
 was required by its terms to comply with at any time, were, that the 
 articles of association should state the name of the corporation, fix 
 and limit the amount of its capital stock, and state the purpose for 
 which and the town or city in which the corporation should be estab- 
 lished and located ; that, before the corporation should commence 
 business, its officers should make, publish and file a certificate of 
 those and other facts ; and that the name of the corporation should 
 indicate its corporate character, and not be the name of any other cor-
 
 147 THE COMMENCEMENT OF CORPORATE EXISTENCE. 583 
 
 poration or company. Stat. 1851, ch. 133, 1-6. And it was held 
 that even an irregularity in the articles of association, such as the 
 adoption of a name already belonging to another company, would not 
 enable the corporation to defeat an action against it by a creditor. 
 Dooley v. Cheshire Glass Co., 15 Gray 494. The direction contained 
 in the Gen. Stat., ch. 61, 3, as to the mode of calling the first meet- 
 ing of such a corporation, was not in the original statute, but was first 
 inserted in the statute of 1855, ch. 478, section 2, and is as consistent 
 with holding the corporation to be already organized as with treating 
 the first meeting as necessary to its organization. The first section of 
 the General Statutes, ch. 61, is certainly not to be construed literally 
 as requiring a compliance with all the provisions of the chapter as a 
 condition precedent to the existence of a corporation; for many of 
 them necessarily assume a corporation to have been already created, 
 such, for instance, as making the officers of the corporation liable for 
 its debts until they have signed and filed certain certificates. Sec- 
 tions 812, Merrick v. Reynolds Engine & Governor Co. 1 The 
 manifest intent of the first section, viewed in connection "with the 
 rest of the chapter, is, that a corporation shall exist at least as soon 
 as the Jirst meeting has been held and officers have been elected, if not 
 immediately upon the signing of the fundamental articles of associa- 
 tion, by which the intention of the associates to avail themselves of 
 the privileges conferred by the legislature is manifested, the name of 
 the corporation determined, the amount of capital stock fixed, and the 
 place in which and the purpose for which the corporation is estab- 
 lished are specified. Utley v. Union Tool Co. , 1 1 Gray 1 39 ; Perkins v. 
 Union Button-Hole & Embroidery Machine Co., 12 Allen 273; New- 
 comb v. Reed, 12 Allen 363. 
 
 When -a corporation has been once created according to law, the 
 incorporated associates who hold the corporate franchise are members 
 of the corporation, and a subscriber for shares, although he has re- 
 ceived no certificate of stock, or the stock has not even been divided 
 into shares, is a member of the corporation, and a stockholder within 
 the meaning of a statute making the stockholders of the corporation 
 personally liable for its debts. Chester Glass Co. v. Dewey, 16 Mass. 
 94; Narragansett Bank v. Atlantic Silk Co., 3 Met. 288, 289; Spear 
 v. Crawford, 14 Wend. 20. 
 
 The statute of 1862, ch. 218, entitled "An act to define and regulate 
 the enforcement of the liabilities of officers and stockholders of manu- 
 facturing corporations," contains the following provisions, upon the 
 construction and effect of which this case depends. 
 
 By section 2, "the members or stockholders in such corporation 
 shall be jointly and severally liable for its debts or contracts in the fol- 
 lowing cases, and not otherwise: First, for such as may be contracted 
 before the capital is fully paid in, and a certificate thereof duly re- 
 corded." 
 
 By section 3, no stockholder in such corporation shall be held liable 
 for its debts or contracts, unless a judgment is recovered against the 
 
 1 101 Mass. 381.
 
 584 HAWES V. ANGLO-SAXON PETROLEUM CO. 147 
 
 corporation, demand for payment made upon the corporation and not 
 complied with for thirty days, and the execution returned unsatisfied. 
 
 By section 4, "after the execution shall be so returned, the judg- 
 ment creditor, or any other creditor, may file a bill in equity in behalf 
 of himself and all other creditors of the corporation, against it, and 
 all persons who were stockholders therein at the time of the com- 
 mencement of the suit in which such judgment was recovered," for 
 the recovery of the sums due from said corporation to himself and 
 such other creditors, for which the stockholders may be personally lia- 
 able, by reason of any act or omission on the part of the corporation 
 or its officers. 
 
 By section 5, "such sums as may be decreed to be paid by the stock- 
 holders in such suit in equity shall be assessed upon them in proportion 
 to the amounts of stock by them respectively held at the time when the 
 suit in which said judgment was recovered was begun ; but no stock- 
 holder shall be liable to pay a larger sum than the amount of stock 
 held by him at that time at its par value." 
 
 Among the purposes for which the defendants incorporated them- 
 selves were "refining oil, coal and other minerals," and "preparing 
 them for use." They were, therefore, strictly a manufacturing cor- 
 poration, and equally within the statutes of 1862, ch. 218, as a similar 
 corporation established by special charter would be. Peele v. Phill- 
 ips, 8 Allen 86; Bond v. Morse, 9 Allen 471. 
 
 The bill was held to be sufficient when this cause was before us 
 upon the demurrer. All questions of variance between the pleadings 
 and evidence have been waived by submitting the case to our decision 
 upon an agreed statement of facts. Russell v. Loring, 3 Allen 121 ; 
 Folger v. Columbian Insurance Co., 99 Mass. 267. 
 
 It is admitted that no part of the capital stock of the corporation has 
 ever been paid in, and no certificate thereof recorded ; and that the 
 plaintiffs have recovered a judgment in an action against the corpora- 
 tion, and had the execution issued thereon duly served upon the cor- 
 poration, and returned unsatisfied. 
 
 That action was brought on the iyth day of March, 1866, a year 
 after the signing of the defendants' articles of association, and almost 
 a year after the associates had held their first meeting and elected 
 officers. Upon any construction of the statutes, the corporation had 
 thus, long before the bringing of that action, been called into exist- 
 ence and made a legal person, capable of holding property and of 
 suing and being sued, and had a board of officers competent to bind 
 the corporation by a new agreement or by ratification of an old one, 
 made before the corporation was capable of contracting. The cor- 
 poration, thus fully organized and represented, filed" an affidavit of 
 merits, and afterwards submitted to a default and judgment thereon. 
 That judgment, if not conclusive in this suit, is at least prima facie 
 evidence that the debt sued on was a debt for which the corporation 
 was liable.' The mere fact that the account annexed to the declara- 
 tion bears date three days before such election of officers is not suffi-
 
 148 CONDITIONS OF DE JURE EXISTENCE. 585 
 
 cient to rebut the evidence of liability afforded by the judgment 
 itself. 
 
 The amount of capital stock of the corporation was fixed and lim- 
 ited in accordance with the General Statutes, ch. 61, section 6. The 
 stock not having been divided into shares or certificates issued, the 
 associated members of the corporation were the holders of the "whole 
 capital stock in common, and would seem, upon the facts agreed, to 
 be liable in equal proportions for such sums as may be decreed to be 
 paid by them in this suit. But as the question of the amount to be 
 assessed upon each has not been argued by them, but only the ques- 
 tion whether they are liable at all, any additional facts and considera- 
 tions, bearing upon the question of the amounts and proportions in 
 which they are to be charged, may be submitted to the master, and, 
 on the coming in of his report, to the court. 
 
 Decree for the plaintiffs, case referred to a master. 
 
 Note. See Katavna Land Company v. Holley, 129 Mass. 540; Schofield G. 
 & P. Co. v. Schofield, 71 Conn. 1. 
 
 Sec. 148. Same. 
 
 (e) Under special acts, either immediately upon acceptance of 
 charter, or only after organization by the subscribers to the stock, 
 depending upon the wording of the acts. 
 
 For example, it is sometimes said that where an act provides that A, B, C, 
 etc. (who have applied for a charter), and their successors and assigns "be 
 and the same are hereby incorporated," there is created ipso facto et eo in- 
 stanti a corporation, and there is no condition precedent to the coming into 
 existence of the corporation. See, 1853, Judah v. The Am. Live Stock Ins. 
 Co., 4 Ind. 333; 1857, Stoops v. The Greenburgh & B. P. Co., 10 Ind. 47; 1859, 
 Hammett v. L. R. & N. R. Co., 20 Ark. 204; 1880, The L. R. & N. R. Co. v. L. 
 R., M. & T. R., 36 Ark. 663. Also, Penobscot Boom Corp. v. Lamson, supra, 
 p. 283; Hawes v. Petroleum Co., supra, p. 581, and illustrations in 135, 136, 
 137, supra. 
 
 ARTICLE IV. COMPLIANCE WITH CONDITIONS. DE JURE EXISTENCE. 
 
 Sec. 149. (i) As to de jure existence, conditions are 
 
 (a) Precedent, with which there must be a substantial, but not 
 necessarily a literal, compliance, in order to make a corporation dk 
 jure. 
 
 MOKELUMNE HILL MINING CO. v. WOODBURY. 1 
 14 Cal. 424, 73 Am. Dec. 658, supra, p. 296. 
 1 See, also, cases below, on pp. 590-613.
 
 586 HARROD V. HAMER. 150 
 
 Sec. 150. Same. 
 
 () Subsequent, with which compliance is not necessary in or- 
 der to create a valid corporation, though necessary legally to ex- 
 ercise corporate functions and powers. 
 
 HARROD v. HAMER ET AL. 1 
 
 1873. IN THE SUPREME COURT OF WISCONSIN. 32 Wis. Rep. 
 
 162-168. 
 
 Appeal from the circuit court for Outagamie county. 
 
 Section 17, ch. 73 of the Rev. Stat., entitled "of joint stock com- 
 panies," provides that before any corporation, organized thereunder, 
 shall commence business, the president and directors shall cause the 
 articles of association to be published in the papers, make a certificate 
 of the purposes for which the corporation is formed, the amount of 
 capital stock, the amount actually paid in, the names of the share- 
 holders, the number of shares by each respectively owned, and de- 
 posit the same with the secretary of state, and a duplicate with the 
 clerk of the town, city or village where the business is to be carried 
 on. Section 25 of the same chapter provides as follows: The stock- 
 holders of any corporation organized under the provisions of this 
 chapter shall be jointly and severally liable for all debts that may be 
 due or owing to all their laborers, servants and apprentices, for serv- 
 ice performed by them for such corporation, within six months pre- 
 ceding the demand made for any such debt," etc. 
 
 Harrod brought his action against the defendants, who were stock- 
 holders in the Appleton Manufacturing Company, incorporated under 
 ch. 73, R. S., to hold them liable individually for any indebtedness 
 against the company. Plaintiff was the owner of a planing mill, and 
 the indebtedness grew out of certain planing done at plaintiff's mill 
 for the building of the factory of the corporation. Judgment had been 
 obtained against the company for the amount due, and execution was 
 returned unsatisfied. Plaintiff thereupon sued the defendants for the 
 amount of such judgment and interest. It was admitted that sec- 
 tion 17 was not complied with by the filing of the required statement 
 until March 25, 1870, and it appeared in evidence that the company 
 erected a building, ran a saw-mill, and transacted other business, 
 some months previous to this date. Finding and judgment for plaint- 
 iff ; from which judgment the defendants Hamer and Schneider ap- 
 pealed. 
 
 DIXON, C. J. The theory upon which this action is prosecuted is, 
 that the subscribers to the articles of agreement and association did 
 not, by the steps and proceedings taken, become or constitute a body 
 politic and corporate, under the name assumed by them in their arti- 
 cles, but that they failed altogether of organizing and establishing a 
 
 'Arguments omitted.
 
 150 CONDITIONS OF DE JURE EXISTENCE. 587 
 
 corporation under the provisions of the statute, as they attempted and 
 intended to do. The supposition is that no corporation was created, 
 and hence that the subscribers, who were shareholders or owners of 
 the supposed capital stock, became a sort of unincorporated joint 
 stock company, or quasi firm or partnership, and so liable in their in- 
 dividual capacity, either jointly or severally, directly to the creditors 
 of the company or association. We are of opinion that this view of 
 the transaction is entirely erroneous, and that a corporation was or- 
 ganized and set in motion with which creditors and others must deal 
 as a corporation, and against which and against the stockholders in 
 which claims and demands must be enforced, as in case of other like 
 corporate bodies. 
 
 The corporation was organized under the provisions of chapter 73 
 of the Revised Statutes, i Tay. Stats. 982 to 987, sections i to 29, 
 inclusive. It is not objected or shown that any requirement of the 
 statute was omitted or not complied with, except only that the certi- 
 ficate prescribed by section 17 (section 19, Tay. Stats.) was not made 
 and deposited with the secretary of state, and a duplicate with the 
 town, village or city clerk, as therein directed. The only question, 
 therefore, is, whether this failure of the president and directors to 
 make and deposit the certificate and duplicate operated to defeat the 
 organization or to annul the proceedings by which the corporation 
 had been brought into existence. The very words of the section are 
 a sufficient answer. "Before any corporation, formed and established 
 by virtue of the provisions of this law, shall commence business, the 
 president and directors thereof shall cause their articles of association 
 to be published," etc., and "shall make a certificate," etc. It would 
 not be easy by any words to recognize the existence of the corpora- 
 tion without the publication and without the certificate, or before 
 they are made, more clearly than has been done here. The corpo- 
 rate existence is clearly acknowledged, and intended so to be, and the 
 prohibition is only against its commencing business until the require- 
 ments of the section are complied with. It is spoken of as a corpora- 
 tion formed and established by virtue of the provisions of law, and 
 having officers such as the law prescribes, namely, a president and a 
 board of directors, capable of acting for the corporation, and upon 
 whom, in their official capacity, certain duties are therein specifically 
 imposed, and their performance commanded. 
 
 But, if anything further be needed upon this point, it will be found 
 in the provisions of section 23 of the same chapter. That section 
 reads: "If the president, directors or secretary of any such corpora- 
 tion shall intentionally neglect or refuse to comply with the provisions 
 of, and to perform the duties required of them respectively by, the 
 seventeenth, eighteenth and nineteenth sections of this chapter, such of 
 them so neglecting or refusing shall jointly and severally be liable, in an 
 action founded on this chapter, for all debts of such corporation con- 
 tracted during the period of any such neglect and refusal." The inten- 
 tion that the corporation should not be affected, or its powers or exist- 
 ence destroyed, by reason of any failure to comply with the requirements
 
 588 NEWCOMB V. REED. 151 
 
 of section 17, is here again very plainly manifested. It is again spoken 
 of and treated as a corporation lawfully organized and still continuing, 
 notwithstanding such failure. It is regarded as a corporation fully 
 capable of contracting debts, and having officers, of whom the per- 
 formance of certain duties has been and still may be lawfully required. 
 And to the like effect are the provisions of section 24, and, perhaps, 
 others. The views here expressed are sustained by the case of Holmes 
 v. Gilliland, 41 Barb. 568. 
 
 It follows from these views that the plaintiff has misconceived his 
 remedy, and that this action can not be maintained against the appel- 
 lants as stockholders, and who hold no other relation to the corpora- 
 tion. The remedy of the plaintiff to enforce payment of his judgment, 
 in addition to that given by the statute against the president and 
 directors of the corporation, will probably be found by consulting the 
 case of Adler v. Milwaukee Patent Brick Manufacturing Co., 13 
 Wis. 57. 
 
 The complaint alleges that the debt, for the non-payment of which 
 the plaintiff recovered judgment against the corporation, accrued and 
 became due to the plaintiff for work and labor performed by him for 
 the corporation, but it is nevertheless not claimed that the cause of 
 action falls within the provisions of section 25 of the statute, or that 
 the plaintiff is pursuing the remedy given by that section. It does not 
 distinctly appear that the debt was one of the kind therein provided 
 for, or that the plaintiff was a "laborer." It is not shown that any 
 demand was made, as prescribed by that section. 
 
 The judgment against the defendants Hamer and Schneider, who 
 bring this appeal, must be reversed, with costs, and the cause remanded, 
 with direction that it be dismissed as to them. 
 
 By the court. It is so ordered. 
 
 Note. See Beach, 13; Clark, pp. 59, 87; Elliott, 38-44; Morawetz, 
 744-746 ; 1 Thompson, 215-249. 
 
 Sec. 151. Same. (2) Conditions may be also: 
 (c) Directory merely. 
 
 NEWCOMB v. REED. 
 
 1866. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 12 
 Allen's (Mass.) Rep. 362-364. 
 
 Contract, in which the plaintiff sought to charge the officers of the 
 Boston Mechanical Bakery Company with a debt contracted in the 
 name of the corporation, in consequence of their neglect to file cer- 
 tificates and statements of the condition of the corporation. At the 
 trial in the superior court, before Ames, J. , without a jury, the judge 
 found for the defendants upon facts which are stated in the opinion ; 
 and the plaintiff alleged exceptions.
 
 151 CONDITIONS OF DE JURE EXISTENCE. 589 
 
 HOAR, J. The defense to this action rests wholly upon the as- 
 sumption that the corporation, whose officers the plaintiff seeks to 
 charge with a statute liability for its debts, never had a legal existence. 
 The only defect suggested in the organization of the corporation is, 
 that the call for the first meeting was signed by only one of the per- 
 sons named in the act of incorporation, and not by a majority of them, 
 as required by Statutes 1855, ch. 140. 
 
 The case of Utely \'. Union Tool Company, n Gray 139, is the 
 authority on which the defendants chiefly rely. That case decided 
 that in order to charge as stockholders of a manufacturing corporation 
 persons who had been summoned in an action against it under Statutes 
 1851, ch. 315, the plaintiff must prove the legal existence of the cor- 
 poration. 
 
 The alleged corporation had no charter or act of incorporation 
 from the legislature, but was an association which had undertaken to 
 assume corporate powers under a general act for the formation of 
 joint stock companies. Statutes of 1851, ch. 133. That statute au- 
 thorized three or more persons who had entered into "articles of 
 agreement in writing" for the transaction of certain kinds of business 
 to organize in a manner prescribed, and thereby to become a corpo- 
 ration ; and the court were of opinion that written articles of agree- 
 ment were essential to constitute a corporation, and that these articles 
 must fix the amount of the capital stock, and set forth distinctly the 
 purpose for which and the place in which the corporation was estab- 
 lished. The court say, "There is an obvious reason for making such 
 organization by written articles of agreement a condition precedent to 
 the exercise of corporate rights. It is the basis on which all the sub- 
 sequent proceedings are to rest, and is designed to take the place of a 
 charter or act of incorporation, by which corporate rights and privi- 
 leges are usually granted." And they add that "it is not a case of a 
 defective organization under a charter or act of incorporation, nor of 
 erroneous proceedings after the necessary steps were taken to the as- 
 sumption of corporate powers, but there is an absolute want of proof 
 that any corporation was ever called into being which had the power 
 of contracting debts or of rendering persons liable therefor as stock- 
 holders." 
 
 We think these reasons have no application to the case now before 
 us. In this, there was an act of incorporation from the legislature. 
 There is no question that the corporate powers which it conferred 
 were assumed by the persons by whom it was intended that they 
 should be enjoyed, so far as they chose to avail themselves of them. 
 The organization was not strictly regular, but can hardly be consid- 
 ered even as defective. 
 
 And if the object of the statute is regarded, by -which it is required 
 that the first meeting shall be called by a majority of the persons 
 named in the act of incorporation, it -will be evident that it is direc- 
 tory merely, and only designed to secure the rights conferred by the 
 charter to those to whom it was granted^ among themselves, by pro- 
 viding an orderly method of organization. Thus, if all the persons
 
 59O HOLMAN V. THE STATE. 152 
 
 interested should come together -without any notice or call whatever, 
 and proceed to accept the charter, and do the other necessary acts to 
 constitute the corporation, ive can not doubt that their action would 
 be valid, and that neither the public, nor any persons not belonging 
 to the association, would have any interest to question their proceed- 
 ings. 
 
 The purpose of the statute was probably to avoid such difficulties 
 as were disclosed in the case of Lechmere Ba'nkv. Boynton, n Cush. 
 369, where two parties had attempted to organize separately under 
 the same charter, each claiming to be the corporation. 
 
 There is nothing in the facts found and reported to show that all 
 persons interested were not actually notified of the meeting for organ- 
 ization. On the contrary, it would seem that they were. No one 
 has questioned the regularity of the proceedings, or claimed, as in 
 Lechmere Bank v. Boynton, a right to organize in a different manner. 
 The evidence was ample to show that the persons named in the act 
 of incorporation, with their associates, or at least all of them who 
 desired to do so, have accepted the act, organized under it, issued 
 stock, elected officers who have acted and served in that capacity, 
 carried on business, contracted debts, and exercised all the functions 
 of corporate existence. It is therefore too late to deny that the cor- 
 poration ever had any legal existence, or for these officers to avoid 
 the liabilities which the statutes of the commonwealth impose. 
 
 The defendant, Brackett, who was treasurer in February, 1861, ap- 
 pears to have been liable with the directors, under the provisions of 
 Gen. Stat., ch. 60, sections 18, 20, 31. 
 
 Exceptions sustained. 
 
 Sec. 152. Same. 
 
 (</) Or mandatory, which may be, 
 
 ( i ) Implied good faith in securing corporate privileges from 
 the state. 
 
 HOLMAN v. THE STATE. 
 
 1885. IN THE SUPREME COURT OF INDIANA. 105 Ind. Rep. 569-574. 
 
 From the Huntington circuit court. 
 
 MITCHELL, J. The state, by an information in the nature of a quo 
 warranto, charged that William J. Holman and ten others were as- 
 suming to act as a corporation under the name of the Fort Wayne, 
 Warren and Brazil Railway Company; that, as such corporation, they 
 were making contracts, incurring debts, soliciting aid from townships, 
 towns and cities, making surveys, appropriating lands, etc., without 
 any warrant or authority of law. They were challenged to show by 
 what authority they assumed so to act. 
 
 By a special answer the defendants admitted that they were acting
 
 152 CONDITIONS OF DE JURE EXISTENCE. 591 
 
 as a railway corporation, and alleged that they were duly organized 
 and incorporated under the law. With their answer they exhibited a 
 copy of their articles of association, which they averred had been duly 
 filed in the office of the secretary of state. Upon the articles thus ex- 
 hibited, it appeared that fifteen persons had each subscribed for $3,400 
 of the capital stock, the whole amount of which was fixed at $60,000. 
 
 The reply was filed admitting the signing and filing of the articles 
 of association and the subscription to the stock. It was, however, 
 averred that many of the subscribers to the stock were, at the time of 
 making such subscriptions, wholly and notoriously insolvent, and 
 made no pretense of being able to pay their subscriptions, and that 
 others of such subscribers were not worth half the amount subscribed 
 by them ; that the solicitor of the subscriptions and promoter of the 
 corporation was a subscriber to the stock, was wholly and notoriously 
 insolvent himself, and knew of the insolvency of many of the other 
 subscribers ; that one of the subscribers, in addition to being insolvent 
 at the time of making his subscription, was also a minor, which was 
 known to the promoters of the scheme. It was further charged that 
 the capital stock had not been subscribed in good f,aith, but that the 
 subscriptions were received for the purpose of securing a colorable 
 organization to be made on paper. Evidence was offered tending to 
 prove the averments contained in the reply. A judgment of forfeiture 
 was rendered. 
 
 The statute providing for the organization of railroad corporations 
 enacts, in substance, that whenever stock to the amount of at least 
 $50,000, or $1,000 for each and every mile of the proposed road shall 
 have been subscribed, any number of the subscribers, not less than 
 fifteen, may, under certain regulations prescribed, form a railroad 
 corporation. 
 
 The question presented for consideration is, must the $50,000 of 
 stock, which is required to be subscribed as a condition precedent to 
 the organization, be subscribed in good faith by persons who had a 
 reasonable expectation that they will be able to pay, or will sub- 
 scriptions, some of which are merely simulated, fulfill the purposes of 
 the statute ? 
 
 Where the information is against the corporation eo nomine, an in- 
 quiry such as that proposed can not be made. In such a case, the 
 bringing of the suit against the corporation in its corporate name is 
 an admission of its corporate existence, and it is not necessary for the 
 corporation to show that it had performed the conditions precedent to 
 its corporate existence. High Extra., L. Rem., section 66 1. So, 
 also, where the question of the regularity of the organization is made 
 in collateral proceeding, it is not admissible to show the insolvency 
 of the subscribers to the stock. It was accordingly held, in Miller v. 
 Wild Cat Gravel Road Co., 52 Ind. 51, that, in a suit upon an uncon- 
 ditional subscription of stock, evidence of the insolvency of some of 
 the subscribers was immaterial. 
 
 There are cases which hold that an assessment against a subscriber 
 to stock can not be collected until, at least, the minimum amount
 
 592 HOLMAN V. THE STATE. 152 
 
 required by the statute has been subscribed by persons apparently 
 able to pay for the shares subscribed. In such cases, the subscrip- 
 tions of insolvent persons, infants and married women, are not 
 counted. Lewey's Island R. Co. v. Bolton, 48 Maine 451 ; Phillips 
 v. Covington. etc., Bridge Co., 2 Met. (Ky.) 219; Morawetz, Corp., 
 279; Pierce, Railroads, p. 55 and notes. 
 
 The fact that some of the subscribers to the stock of a corporation 
 became insolvent after such subscriptions were made, will not of it- 
 self support an information in the nature of a quo warranto. State, 
 ex rel., v. Bailey, 16 Ind. 46. 
 
 The case before us is an information by the state challenging the 
 right of certain individuals to act as a corporation, and asserting that 
 by reason of the colorable character of the subscriptions they never 
 became an incorporation. It is therefore a direct inquiry on behalf 
 of the state, calling upon the individuals named to show by what 
 authority they assume to act as a corporation. 
 
 In such a case, while it may be sufficient, prima facie, to show the 
 filing of articles of association and a subscription of the minium amount 
 of stock required by law, we do not think such showing is conclusive 
 upon the state. It is true the statute does not in terms prescribe that 
 the subscriptions must have been made in good faith, or that the sub- 
 scribers must have been at the time of making their subscriptions 
 solvent, and apparently able to pay. 
 
 But it must be implied that, at least between the state and the 
 persons to whom the privilege of erecting themselves into a corpora- 
 tion is granted, good faith and fair dealing should be observed. 
 
 Merely simulated subscriptions, made by persons who are neither 
 actually nor apparently able to pay the amount subscribed, can not 
 answer the purpose of the statute. Such subscriptions are shams, and 
 are to be denounced as a fraud upon the law. They are an attempt 
 to acquire corporate functions, not by a compliance with the law. but 
 by a disingenuous evasion of it. Jersey City Gas Co. v. Dwight, 29 
 N. J. Eq. 242. 
 
 Such subscriptions must stand upon the same basis, and be deter- 
 mined upon the same considerations that govern any other business 
 transaction. 
 
 It can not be doubted that a person may in good faith become a 
 subscriber to the stock of a corporation, as he may become the pur- 
 chaser of goods, for a sum larger than he is then able to pay, and 
 more than he is at the time actually worth in property. But such a 
 subscriber must have subscribed in good .faith, with a reasonable ex- 
 pectation and apparent prospect of being able to pay assessments on 
 his stock as they might thereafter be called for. 
 
 Where, however, a subscriber is both insolvent and has no prospect 
 or expectation of being able to pay, and such subscription is taken 
 with knowledge, it can not be counted in making up the minimum 
 required by statute. 
 
 When the articles of association were tendered with a subscription 
 of $50,000 to the capital stock by fifteen persons, it was a represent-
 
 152 CONDITIONS OF DE JURE EXISTENCE. 593 
 
 ation that that amount was pledged and available as necessity might 
 require. Upon the faith of that representation the state authorized 
 the persons making it to assume the functions and franchises of a cor- 
 poration. 
 
 Qn the same principle that one individual may reclaim his prop- 
 erty which has been sold to another, who is insolvent, and who had 
 at the time no intention to pay, or prospect of being able to pay for 
 it, the state may reclaim the privilege granted by it under like circum- 
 stances. 
 
 Standing by until important interests were acquired by the corpora- 
 tion might estop the state, or lapse of time might cure the defect in 
 the organization. State, ex rel., v. Gordon, 87 Ind. 171. Nothing 
 of that kind is either pleaded or proved in this case. 
 
 It is abundantly established by the evidence that most of the sub- 
 scribers to the stock had not only neither the ability, actual or appar- 
 ent, at the time they subscribed, to pay any calls ; but it appears 
 further that they had no purpose or expectation that they would be 
 called upon to pay, or that they could pay anything if called upon. 
 
 As a condition to its assent to the grant of corporate powers to a 
 railway company, the state requires that an available capital of at 
 least $50,000 shall be provided as a security for persons with whom 
 the corporation proposes to transact business, and as a guaranty that 
 it will prosecute the proposed work. If obtaining merely feigned sub- 
 scriptions puts it beyond the power of the state to withdraw its assent, 
 then it is within the power of designing persons to obtain the franchise 
 of a corporation by a merely pretended compliance with the law, and 
 by that means exclude others who might execute a beneficial public 
 improvement, while the existing corporation is wholly unable to do 
 anything except to harass those who may be induced to deal with it. 
 
 We think the evidence sufficiently shows that the defendants held 
 themselves out as a corporation. 
 
 The judgment is affirmed, with costs. 
 
 ZOLLARS, J., did not participate in the decision of this case. 
 
 Filed March 12, 1886. 
 
 Note. See, 1863, Paterson v. Arnold, 45 Pa. St. 410; 1878, Jersey City Gas 
 Co. v. Dwight, 29 N. J. Eq. 242; 1888, Williams v. Evans, 87 Ala. 725; 1892, 
 State v. Webb, 97 Ala. Ill, 38 Am. St. Rep. 151. But see, 1898, Bristol Bank & 
 T. Co. v. Jonesboro B. & T. Co., 101 Tenn. 545, 9 Am. & Eng. Corp. Cas. 
 (N. S.) 790. See, also, Clark, pp. 86-94; Elliott, 38-44; Thompson, 226, 
 227. 
 
 38 WIL. CASES.
 
 594 MONTGOMERY V. FORBES.' 1 53 
 
 Sec. 153. Same. (2) Express. 
 
 (a) A certain number of incorporators. 
 
 MONTGOMERY AND ANOTHER v. FORBES. 
 
 1889. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 148 
 Mass. Rep. 249-253, 19 N. E. Rep. 342. 
 
 Contract to recover the price of goods sold and delivered. 
 
 At the trial in the superior court, before Dewey, J., the only ques- 
 tion was whether the goods were sold to a corporation called the 
 Forbes Woolen Mills, or to the defendant doing business under that 
 name. -The plaintiffs introduced evidence tending to show that sub- 
 sequently to May, 1885, they received an order for the goods by a 
 letter, written upon paper with the printed heading, "Incorporated 
 1885. Forbes Woolen Mills. George E. Forbes, Treasurer," 
 signed "Forbes Woolen Mills, by George E. Forbes, Treasurer;" 
 that they thereupon shipped the goods to the Forbes Woolen Mills 
 and received in payment thereof three promissory notes, together 
 equal to the price of the goods, signed "Forbes Woolen Mills, by 
 George E. Forbes, Treasurer;" that when they sold the goods and 
 took the notes, they understood from their correspondence with the 
 defendant, as well as from information gained from a commercial 
 agency, that the Forbes Woolen Mills were a corporation, and made 
 all charges on their books against them as a corporation, and took the 
 notes from the defendant as the notes of a corporation ; and that 
 after they sold the goods and received the notes they became satisfied 
 that there was no such a corporation as the Forbes Woolen Mills ; 
 and contended that they were entitled to recover the price of the goods 
 from the defendant personally. 
 
 The defendant contended that the Forbes Woolen Mills was a 
 corporation, and testified that he purchased the goods as treasurer of 
 the Forbes Woolen Mills, but admitted that they had not been paid 
 for except by the notes, which themselves had not been paid ; that in 
 May, 1885, for the purpose of limiting his personal responsibility, 
 and because the tax laws of New Hampshire were more favorable to 
 corporations than the Massachusetts laws, he went to Nashua, N. H., 
 to form a corporation for the manufacture of woolen goods ; that he 
 employed an attorney at law of Nashua to incorporate the company 
 in a legal and proper manner, under the laws of the state, and subse- 
 quently paid him for his services and disbursements in the premises ; 
 that he went to Nashua again, and, with the attorney and three other 
 persons, selected and secured by the attorney, signed and executed an 
 agreement of association, which was dated May 6, 1885, and was 
 duly recorded in the office of the secretary of state of New Hampshire 
 on May 12, 1885, and in the office of the clerk of the city of Nashua 
 on May 13, 1885, and recited that the subscribers associated them-
 
 153 CONDITIONS OF DE JURE EXISTENCE. 595 
 
 selves for the purpose of forming a corporation, to be called the 
 Forbes Woolen Mills, the amount of the capital stock to be twenty 
 thousand dollars, divided into four hundred shares of fifty dollars 
 each ; and that the object of the corporation was to manufacture and 
 sell woolen and other goods, and the places of business were Nashua, 
 in New Hampshire, and East Brookfield, in Massachusetts. 
 
 The defendant further testified that, subsequently to the execution 
 of the agreement of association, one or more meetings were held by 
 the signers, at which he was elected president and treasurer of the 
 corporation, and such other officers and directors were elected 
 as were necessary under the laws of New Hampshire ; that the attor- 
 ney had been recommended to him as a reputable and reliable man 
 and attorney, and he left everything in his hands, and supposed he 
 did everything necessary and proper to establish the corporation in a 
 legal manner ; that records of the meetings were kept by the attorney, 
 and that there was a stock-book, and certificates of stock were issued ; 
 that all the stock was issued to the defendant, and that no other per- 
 son was interested in it ; that fifty per cent, of the capital stock of the 
 corporation was actually paid in by him in cash and supplies; that 
 after the organization of the corporation he hired, as treasurer of the 
 corporation, a mill in East Brookfield belonging to his mother, Rox- 
 anna Forbes, and himself, and began the manufacture of woolen goods ; 
 that he purchased the necessary supplies, including those named in 
 the plaintiff's account, and placed them under the direction of a 
 superintendent, employed to supervise the manufacture of the goods ; 
 that there was no manufacturing done in Nashua, nor any other business 
 except the holding of corporate meetings, and possibly the sale now 
 and then of a bill of goods in the ordinary course of business ; and 
 that the principal place of business of the corporation was in East 
 Brookfield ; that he, as president and treasurer of the corporation, 
 continued to manufacture woolen goods for about four months, and 
 sent the goods to commission houses in New York to be sold ; and 
 that at the end of said four months he was unable to continue the 
 business and gave it up, and no further business was done by him or 
 by the corporation. 
 
 The following sections of chapter 152 of the General Laws of New 
 Hampshire of 1878 were introduced in evidence: 
 
 "Section i. Any five or more persons of lawful age may, by written 
 articles of agreement, associate themselves together for agricultural, 
 educational or charitable purposes, or for carrying on any lawful busi- 
 ness, except banking and the construction and maintenance of a rail- 
 road ; and when such articles have been executed and recorded in the 
 office of the clerk of the town in which the principal business is to be 
 carried on, and in that of the secretary of state, they shall be a corpora- 
 tion, and such corporation, its officers and stockholders, shall have all 
 the rights and powers and be subject to all the duties and liabilities 
 of similar corporations, their officers and stockholders, except so far 
 as the same are limited or enlarged by this chapter. 
 
 "Sec. 2. The object for which the corporation is established, the
 
 596 MONTGOMERY V. FORBES. 153 
 
 place in which its business is to be carried on, and the amount of cap- 
 ital stock to be paid in, shall be distinctly set forth in its articles of 
 agreement." 
 
 Upon this evidence the defendant asked the judge to rule that the 
 plaintiffs were not entitled to recover, that the account in question had 
 been paid by the notes of the Forbes Woolen Mills as a corporation, 
 and that there was no evidence to authorize the jury to find for the 
 plaintiffs. 
 
 The judge declined so to rule, and submitted the following ques- 
 tions to the jury: "i. Did the Forbes Woolen Mills and the mem- 
 bers of the said alleged corporation, including said Forbes, at the time 
 of its attempted organization, intend to carry on its business as a 
 manufacturing corporation (other than holding meetings of its mem- 
 bers and officers) in whole or in part, in the city of Nashua, N. H.? 
 2. Was there any attempt in good faith on the part of the defendant, 
 Forbes, to organize the corporation of the Forbes Woolen Mills? 
 3d. Did said Forbes at and prior to the time the goods in controversy 
 were ordered, namely, at all times after May 12, 1885, during his 
 dealings with the plaintiff, believe that the organization of said Forbes 
 Woolen Mills was a valid corporation?" 
 
 The jury answered the first two questions in the negative and the 
 third in the affirmative. 
 
 The judge, being of the opinion that, upon the findings of the jury 
 and the uncontradicted evidence in the case, the plaintiffs were en- 
 titled to recover, directed the jury to return a verdict for the plaintiffs, 
 and reported the case for the determination of this court. 
 
 C. ALLEN, J. The apparent corporation was not a corporation. 
 The statute of New Hampshire requires Jive associates, and the 
 articles of agreement must be recorded in the town in which the prin- 
 cipal business is to be carried on, and the place in which the business 
 is to be carried on must be distinctly stated in the articles ; otherwise 
 there is no corporation. The defendant" s pretended associates were 
 associates only in name; he alone was interested in the enterprise. 
 The articles of agreement were recorded in Nashua, and stated that 
 the business was to be carried on there ; but it was not in fact carried 
 on there, and was not intended to be. The defendant took all the 
 shares of the capital stock, and paid into himself as treasurer only 
 50 per cent, of the amount thereof. This is not a case where there 
 has been a defective organization of a corporation which has a legal 
 existence under a valid charter. Here there was no corporation. It 
 was just the same as if the defendant had done nothing at all in the 
 way of establishing a corporation, but had conducted his business 
 tinder the name of the Forbes Woolen Mills, calling it a corporation. 
 The business was his personal business, which he transacted under 
 that name. Fuller v. Hooper, 3 Gray 334, 341. Bryant v. Eastman, 
 7 Cush. in. 
 
 The jury found that he did not, in good faith, attempt to organize the 
 corporation, but that he believed it to be a valid corporation. His 
 belief, in view of the facts of the case, is immaterial. Under this
 
 I$4 CONDITIONS OF DE JURE EXISTENCE. 597 
 
 state of things, the defendant bought goods of the plaintiffs for his 
 own sole benefit, adopting the name of the apparent corporation, 
 which had no real existence, and which represented nobody but him- 
 self. He can not escape responsibility for his purchases by the device 
 of putting such a mere name between himself and the plaintiffs. The 
 purchase was in substance by and for himself alone. The plaintiffs 
 might have repudiated the transaction, and maintained replevin, if 
 they had learned the facts in time. They may also treat the transac- 
 tion as a sale to the defendant personally. Fay v. Noble, 7 Cush. 
 188, 194; Kelner v. Baxter, L. R. 2 C. P. 174, 183, 185; 2 Kent 
 Com. (i3th ed.) 630. 
 
 Since the notes repi'esented nothing, the plaintiffs were at liberty to 
 treat them as void and recover on the original contract for goods sold. 
 Melledge v. Boston Iron Co., 5 Cush. 158, 171. 
 
 Verdict to stand. 
 
 Sec. 154. Same. , 
 
 () Written articles of agreement. 
 
 UTLEY v. UNION TOOL COMPANY. 
 
 1858. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, n 
 Gray's (Mass.) Rep. 139-142. 
 
 Actions of contract against the Union Tool Company, described in 
 the writs as "a corporation established according to law, in Goshen," 
 in the county of Hampshire. The principal defendants were de- 
 faulted, and several persons were summoned in as stockholders, pur- 
 suant to the statute of 1851, ch. 315, and filed answers, upon which 
 trials were had in the court of common pleas in Hampshire. 
 
 The plaintiffs proposed to prove by the records of the Union Tool 
 Company that the respondents were stockholders therein. The re- 
 spondents objected to the admission of this evidence before the exist- 
 ence of the corporation had been shown, and unless it was shown that 
 it was a manufacturing corporation whose stockholders might become 
 liable as such for its debts. Morris, J. , ruled that it was not necessary for 
 the plaintiffs to prove the existence of the corporation, that being ad- 
 mitted by the default, but that it was necessary to show that it was such a 
 corporation that its stockholders might become individually liable, and 
 admitted evidence that the company had made by-laws and done other 
 acts as a corporation, and the respondents had attended meetings as 
 stockholders, without proof that the company had ever been incorpo- 
 rated by the legislature, or by articles of association in writing, setting 
 forth the amount of the capital .stock, and the purpose of their estab- 
 lishment, as required by the statute of 1851, ch. 133, 13. Verdicts 
 were taken for the plaintiffs, and the respondents alleged exceptions. 
 The other facts sufficiently appear in the opinion.
 
 598 UTLEY V. UNION TOOL CO. 154 
 
 These cases were argued at Northampton in September, 1858, and 
 decided at Boston in April, 1860. 
 
 BIGELOW, J. There can be no doubt that the burden of proof was 
 on the plaintiffs, to show the legal existence of a corporation, of 
 which the persons summoned in the action were members, and for 
 the debts of which they were personally liable. This is the precise 
 issue which, by statute 1851, ch. 315, 2, it was intended should be 
 open to a stockholder on his being admitted to defend the action as 
 therein provided. It is to be made to appear that he is liable in the 
 action; otherwise, he is entitled to judgment in his favor "upon the 
 issues joined." It has already been determined that under this pro- 
 vision an alleged stockholder can not be allowed to make a general 
 defense to an action against a corporation, by calling in question the 
 validity of the debt which is sought to be recovered, or disputing the 
 amount averred to be due, but that he has a right to a hearing and 
 adjudication on the question whether he is a member of a corporation 
 and liable as such for its debts. Holyoke Bank v. Goodman Paper 
 Mfg. Co., 9 Cush. 582. It is obvious that the trial of the issue which 
 is thus opened to an alleged stockholder necessarily involves the 
 question of the legal existence of the corporation, for the debt of 
 which he is sought to be charged, because his liability depends on the 
 nature of the corporate body and of the powers and duties with which 
 it was clothed by law. Until these are shown, it can not be known 
 whether the stockholder is legally chargeable or not. Doubtless there 
 may be cases where the existence of a corporation, and the character 
 and description of its functions and privileges, may be shown by pre- 
 scription or long user. In such case a charter or legislative grant of 
 corporate powers may be presumed. But no such inference or pre- 
 sumption can exist in the present cases, nor do the plaintiffs attempt 
 to maintain their claims to charge the persons summoned on any such 
 ground. On the contrary, the whole case rests on the allegation that 
 the respondents are liable as stockholders in a corporation created and 
 established under the recent statute, entitled "an act relating to joint 
 stock companies." Statue 1851, ch. 133. 
 
 But it seems to us that the evidence offered at the trial fails to show 
 that the alleged corporation ever had any legal existence. By refer- 
 ence to the first section of the statute, it will be found that, in order 
 to establish a corporation under it, it is necessary that not less than 
 three persons should enter into "articles of agreement in writing," 
 for the purpose of carrying on business of the nature specified in the 
 statute. By these articles it is provided, in sections 2 and 3, the 
 amount of capital stock shall be fixed and limited, and the purpose 
 for which and the place in which the corporation is to be established 
 shall be distinctly and definitely set forth. By section 4, it is further 
 provided that, before commencing business, a certificate shall be 
 made of the name, purpose, capital stock and other particulars con- 
 cerning the constitution and objects of the corporation, to be published 
 and recorded as therein required. And by section 5 it is provided 
 that, "when such persons are organized as aforesaid" that is, by
 
 154 CONDITIONS OF DE JURE EXISTENCE. 599 
 
 articles of agreement as above set forth "they shall become a cor- 
 poration, with all the powers and privileges and subject to all duties, 
 restrictions and liabilities set forth in the thirty-eighth and forty-fourth 
 chapters of the Revised Statutes." There can be no doubt of the 
 construction which ought to be given to these provisions. The im- 
 plication is clear and unavoidable that, until the organization is 
 completed according to the requirements of the statute, the associa- 
 tion does not become a corporation, and does not possess corporate 
 rights or privileges, nor is it subject to the duties and liabilities of 
 a manufacturing corporation, among 'which is the liability of the 
 stockholders for the corporate debts, if certain provisions of law are 
 not complied 'with. There is an obvious reason for making such 
 organization by -written articles of agreement a condition precedent 
 to the exercise of corporate rights. It is the basis on which all sub- 
 sequent proceedings are to rest, and is designed to take the place of 
 a charter or act of incorporation, by -which corporate privileges are 
 usually granted. If there -were no such requirement, there -would be 
 an absence of any provisions by which the right to exercise corporate 
 power could be definitely fixed and established, and there -would be 
 no means of ascertaining the rights of stockholders or of persons 
 dealing with such associations. 
 
 Upon an examination of the evidence adduced at the trial, there is 
 nothing to show that any articles of agreement were ever entered into 
 for the formation of a corporation under the statute. That some or- 
 ganization took place with a view to establish a corporation is abun- 
 dantly shown. But the essential fact is wanting to show that the 
 persons engaged in the enterprise ever complied with the condition 
 precedent to their right to assume the name and functions of a corpora- 
 tion. It is not a case of a defective organization under a charter or 
 act of incorporation, nor of erroneous proceedings after the necessary 
 steps were taken to the assumption of corporate powers, but there 
 is an absolute want of proof that any corporation was ever called into 
 being which had the power of contracting debts or of rendering per- 
 sons liable therefor as stockholders. 
 
 We are not called on now to say whether the plaintiffs have any 
 remedy for the collection of their debt against those who participated 
 in the transactions connected with the attempted organization of the 
 supposed corporation. It is sufficient for the decision of this case 
 that the respondents can not be held liable in the action for the debts 
 of a corporation which has never had any legal existence. 
 
 Exceptions sustained.
 
 600 BUSENBACK V. ATTICA, ETC., GRAVEL ROAD CO. 155 
 
 Sec. 155. Same. 
 
 (t) Names and residence of subscribers to stock. 
 
 BUSENBACK ET AL. v. THE ATTICA AND BETHEL GRAVEL ROAD 
 
 COMPANY. 
 
 1873. IN THE SUPREME COURT OF INDIANA. 43 Ind. Rep. 
 
 265-27 1 . 
 
 From the Fountain common pleas. 
 
 BUSKIRK, J. This was an action by the appellants to enjoin the 
 collection of certain assessments made for the construction of the At- 
 tica and Bethel Turnpike Company, upon the ground that the said 
 company had never been legally organized. 
 
 The single question presented by the record in this case is whether 
 it is essential to the legal existence of a corporation organized under 
 the act of May 12, 1852, "authorizing the construction of a plank, 
 macadamized and gravel roads," that its articles of association shall 
 set forth the residence of each and every subscriber thereto. 
 
 The first section of said act, as amended by the act of 1859, reads 
 as follows: 
 
 ''Be it enacted by the general assembly of the state of Indiana, 
 That any number of persons may form themselves into a corporation 
 for the purpose of constructing or owning a plank, macadamized, 
 gravel, clay and dirt roads, by complying with the following require- 
 ments: They shall unite in articles of association, setting forth the 
 name which they assume, the line of the route, and the place to and 
 from which it is proposed to construct the road, the amount of capital 
 stock, and the number of shares into which it is divided, the names 
 and places of residence of the subscribers, and the amount of stock 
 taken by each shall be subscribed to said articles of association. 
 Whenever the stock subscribed amounts to the sum of $500 per mile 
 of the proposed road, copies of the articles of association shall be filed 
 in the office of the recorder of each county through which the road is 
 to pass, and shall from that time be a corporation, known by the name 
 assumed in (its) articles of association." i G. & H. 474- 
 
 In the present case, every requirement of the above section was 
 fully complied with, except setting forth "the places of residence of 
 the subscribers." There were twenty-seven subscribers to the articles 
 of association, and the places of the residence of only two of them 
 are set forth. 
 
 It is insisted by counsel for appellants that setting forth the places 
 of residence of the subscribers is imperatively required by the statute, 
 and is absolutely essential to the legal existence of the corporation, 
 and that if one of the requirements of the statute may be dispensed 
 with, all may be ; that it has not been left to construction, but that the 
 legislature has prescribed the terms and conditions, upon a compliance 
 with which a corporation may be organized, as is shown by the use of
 
 155 CONDITIONS OF DE JURE EXISTENCE. 6<DI 
 
 the following words: "By complying with the following require- 
 ments." 
 
 On the other hand, it is argued that the failure to affix to the names 
 of the subscribers their places of residence, is a mere formal defect of 
 a very technical character. It does not go to the existence or consti- 
 tution of the corporation. It goes only to the description of the per- 
 sons who compose it. When their names are given, the subscribers 
 are sufficiently identified, and the statute is substantially complied 
 with. 
 
 It is further contended by counsel for appellee, that while a strict 
 construction will be adopted as to questions relating to the power of 
 dealing in a corporate capacity, a liberal construction will be adopted 
 as to questions relating to the mere manner of getting into operation 
 or acquiring a corporate existence. 
 
 Counsel for appellee refer to and rely upon the case of Eakright v. 
 The Logansport, etc., R. Co., 13 Ind. 404, as establishing the prop- 
 osition that the requirement to state the place of the residence of the 
 subscribers is only directory. 
 
 The question in that case was, whether the setting forth, in the ar- 
 ticles of association, of the names of the directors was essential to the 
 legal existence of the corporation. The court say: "Here the di- 
 rectors are not named in the articles of association ; but it appears that 
 they were elected at a meeting of the subscribers after the stock was 
 subscribed and the articles were constructed ; and further, at the same 
 meeting at which they were elected, the same articles of association 
 were expressly adopted by the subscribers. Indeed, all the require- 
 ments of the statute have, in this instance, been literally pursued, 
 save that of naming the directors in the articles of association, and 
 that, it seems to us, has, in effect, been done by the adoption of the 
 articles when the directors were elected." 
 
 The court held that there had been a substantial compliance with 
 the requirements of the statute, as the names of the directors had been, 
 in substance and effect, set forth. But the court, after having de- 
 cided the real question involved, proceeded to express an opinion upon 
 a point that did not arise in the record, as the statute had been in 
 effect complied with. The court say: "At all events, the require- 
 ments that they be named in the articles maybe held merely direc- 
 tory, and not, in view of the facts stated in the complaint, essential to 
 the validity of the corporation." The facts referred to as having 
 been stated in the complaint, were those showing that the names of 
 the directors had, in effect, been given. In our opinion, that portion 
 of the above decision which held the requirements merely directory is 
 not entitled to much weight or consideration, because the point was 
 really not before the court, and the statement is made with a qualifi- 
 cation that greatly weakens its force. 
 
 The cases of Piper v. Rhodes, 30 Ind. 309, and Rhodes v. Piper, 
 40 Ind. 369, are much in point. In such cases we held that the re- 
 quirements of the above section of the statute were not merely direc- 
 tory, but were imperative, and should be substantially complied with.
 
 602 BUSENBACK V. ATTICA, ETC., GRAVEL ROAD CO. 155 
 
 The omission was the failure to set forth in the articles of the associa- 
 tion the name of such association. The one requirement is, under 
 the statute, as imperative and essential as the other. 
 
 The case of The State, ex rel. O'Brien, v. The Bethlehem, etc., G. 
 R. Co., 32 Ind. 357, involved a construction of the above quoted 
 section of the statute. It is plainly inferrible, from the language used 
 by the court, that it was intended to hold that there must be a sub- 
 stantial compliance with all the requirements of the statute. The 
 court say: "The information is unskillfully drawn, is uncertain in 
 many of its averments, and contains much useless matter; but we 
 think that the matters alleged in the first specification are sufficient, if 
 true, which the demurrer admits, to show that the association has 
 failed to comply with several of the requirements of the statute which 
 are essential to a legal organization as a corporation." 
 
 The omissions complained of were as follows: "The first charge 
 alleges that the pretended articles of association did not set forth the 
 name assumed by the company ; that the articles of association do 
 not contain an intelligent description of the line of the route and the 
 place from and to which it is proposed to constnict the road ; nor 
 does it contain the amount of the capital stock of the company or 
 the number of shares into which it is divided, or the names and places 
 of residence of the subscribers and the amount of stock subscribed 
 by each." 
 
 The precise question involved in the case under consideration was 
 involved in the above case, and the court held that it was essential to 
 the legal organization of the corporation that the names and places of 
 the residence of the subscribers must be set forth in the articles of the 
 association. Such is the plain requirement of the statute. The re- 
 quirements enumerated in the first section of the act are plainly and 
 distinctly set forth, and it is expressly declared in such section that 
 a corporation may be organized by complying -with the requirements 
 therein specified. We are now asked to hold that the corporation 
 was legally organized by complying with a part of such requirements. 
 The legislature has made no discrimination between the requirements 
 by making some of them directory and others imperative, and we 
 possess no power to do so. The legislature had declared, in plain 
 and unambiguous language, that ''the names and places of residence 
 of the stockholders" shall be set forth in the articles of association, 
 and the effect of the failure to make such allegation is not left to 
 construction, but it is made a condition precedent to the legal organ- 
 ization of the corporation. 
 
 In Garrigus v. The Board of Commissioners of Parke County, 39 
 Ind. 66, we laid down certain rules of construction as applicable to 
 corporations, to which we adhere. 
 
 The learned counsel for appellee have pressed upon our considera- 
 tion the inconvenience and loss which would result from our holding 
 the organization of the corporation incomplete, by reason of the fail- 
 ure to set forth in the articles of association the places of residence of 
 the stockholders. There is no hardship or injustice in requiring those
 
 156 CONDITIONS OF DE JURE EXISTENCE. 603 
 
 who seek to be clothed with the power of imposing taxes upon the 
 property and burdens upon the shoulders of others to comply with 
 the plain, unambiguous and undoubted requirements of the statute 
 which confers the power. The legislature has prescribed the conditions 
 upon which these corporate and extraordinary powers may be exercised, 
 and it is but reasonable and just that those -who accept the benefits con- 
 ferred should comply with the conditions imposed. If loss and incon- 
 venience result, it may have a tendency to induce persons getting up 
 such organizations to secure the services of persons possessed of sufficient 
 knowledge and skill to perfect an association in conformity with the law, 
 and thus relieve corporations from expensive litigation and the courts 
 from being crowded with unnecessary suits. The gravel road and ditch- 
 ing associations have been a fruitful source of vexatious and expensive 
 litigation, the most of which could have been prevented by the exer- 
 cise of care and skill. The disastrous consequences of the want of 
 care, skill and prudence should teach wisdom to those engaged in 
 organizing and managing such associations. 
 
 In the case in judgment the capital stock was $12,000. The two 
 stockholders whose places of residence are given subscribed for $1,500 
 of stock, a sum wholly insufficient to authorize the organization of the 
 corporation. In legal effect, the case, therefore, stands as though 
 none of the places of residence of the stockholders were set forth. 
 
 In our opinion, the court below erred in sustaining the demurrer to 
 the complaint. 
 
 The judgment is reversed, with costs, and the cause is remanded, 
 with directions to the court below to overrule the demurrer to the 
 complaint, and for further proceedings in accordance with this opinion. 
 
 Note. Necessary to state names and residences of directors. 1875, Reed v. 
 Richmond Street R. Co., 50 Ind. 342. 
 
 Sec. 156. Same. 
 
 (df) Place of business. 
 
 HARRIS AND STICKLE v. McGREGOR. 1 
 
 1865. IN THE SUPREME COURT OF CALIFORNIA. 29 Cal. Rep. 
 
 124-128. 
 
 Appeal from the district court, Eleventh district, Calaveras county. 
 
 This was action to recover the sum of $600 damages for the diver- 
 sion by the defendant of waters of the middle fork of the Mokelumne 
 river, in Calaveras county, away from the ditch or canal known as 
 Sandy Gulch or Harris' Ditch, and for an injunction to prevent further 
 diversion during the pendency of the action, and for a perpetual in- 
 junction upon final hearing. 
 
 1 Arguments omitted. Only part of opinion relating to the one point given.
 
 604 HARRIS v. M'GREGOR. 156 
 
 By the court, SANDERSON, C. J. We pass the question as to the right 
 of the defendant to prove the title to the Sandy Gulch or Harris' Ditch 
 to be outstanding in the Bunker Hill Canal and Mining Company, al- 
 leged by the defendant to be a corporation, for the reason that in our 
 judgment the evidence fails to establish the existence of any such corpo- 
 ration. The certificate offered in evidence, for the purpose of prov- 
 ing the existence of such a corporation, fails to comply with the provis- 
 ions of the act under which the alleged corporation was attempted to 
 be formed, in an essential particular rendering it null and void. That 
 act prescribes with particularity the terms and conditions upon which 
 persons seeking its benefits, and their successors, may become a body 
 politic and corporate, and there must be at least a substantial com- 
 pliance with each and all of those conditions before the corporation 
 can be considered in esse. (Mokelumne Hill Mining Company v. 
 Woodbury, 14 Cal. 424.) 
 
 Essentials of a certificate of incorporation. 
 
 By express terms of the statute the certificate of incorporation must 
 state the following particulars : 
 
 i. The corporate name. 2. The objects for which the corpora- 
 tion is formed. 3. The amount of its capital stock. 4. The term 
 of existence not to exceed fifty years. 5. The number of shares into 
 which the stock is divided. 6. The number of trustees and the names 
 of those who are to manage the affairs of the corporation for the first 
 three months. 7. The names of the city or town and county in 
 which the principal place of business is to be located. With the last 
 of the foregoing provisions of the statute, the certificate in question 
 fails to show a substantial compliance. All that is stated in the cer- 
 tificate in that respect is as follows: "The operations of the com- 
 pany are to be carried on in the county of Calaveras, state of Cali- 
 fornia." This language in no sense, either expressly or by implica- 
 tion, can be held to designate the principal place of business of the 
 corporation. It simply designates the county and state where the 
 "operations of the company are to be carried on." But the "opera- 
 tions" of a corporation may be carried on in one county and their 
 principal place of business, within the meaning of the statute, be in 
 another and distant county ; or the former may be in one state and 
 the latter in another. But could we understand the language in ques- 
 tion as fixing the principal place of business of the corporation in 
 Calaveras county, the failure to comply with the statute would only 
 be less in degree, for there is no specification of the "city" or 
 "town," which is no less essential than the designation of the county, 
 for it is so expressly provided. The "principal place of business" 
 contemplated and intended by the statute is the principal office of 
 the corporation at which the books of the corporation are kept, and 
 its officers usually and ordinarily meet for the purpose of managing 
 the affairs and transacting the business of the corporation, and the 
 statute requires that the city or town, as the case may be, at which 
 such office is to be located shall be stated in the certificate, for reasons 
 which are obvious. But whether for reasons or not is immaterial,
 
 157 CONDITIONS OF DE JURE EXISTENCE. 605 
 
 for the same will which alone can confer corporate privileges can 
 prescribe the conditions of the grant, and it is sufficient to say that 
 such and such are the conditions. 
 
 In view of the judgment of nonsuit the order dissolving the injunc- 
 tion was proper; the latter followed the former as a matter of course. 
 Upon the return of the case to the court below the plaintiff will be 
 entitled to a renewal of the injunction upon a proper application. * * * 
 
 Judgment reversed and cause remanded for further proceedings. 
 
 See Pacific Bank v. DeRo, 37 Cal. 538, on 542. Also, 1893, Finnegan v. Noer- 
 enberg, 52 Minn. 239, 38 Am. St. 552, infra, p. 614. 
 
 Sec. 157. Same. 
 
 (^) Purpose of incorporation. 
 
 THE ATTORNEY GENERAL, Ex REL. MINOR, v. LORMAN ET AL. J 
 1886. IN THE SUPREME COURT OF MICHIGAN. 59 Mich. Rep. 
 
 CHAMPLIN, J. This is a proceeding by information in the nature 
 of a quo warranto to determine the rights of respondents to exercise 
 the franchises of a corporation organized under "an act to authorize 
 the formation of corporations for mining, smelting or manufacturing 
 iron, copper, mineral, coal, silver, or other ores or minerals, and for 
 other manufacturing purposes," approved February 5, 1853. * * * 
 
 It appears by the articles of association set up in the plea of respond- 
 ents that the respondents, with others, are associated and incorporated 
 under the act aforesaid, as declared in such articles, for the purpose 
 of putting up, packing and manufacturing for market, Detroit river and 
 lake ice, and distributing and selling the same. The law requires the 
 articles of association to state distinctly and definitely the purpose for 
 which the same is formed. If it does not state a purpose for which 
 the statute authorized a corporation to be formed, it would not be 
 legally incorporated, and its articles would afford no warrant for the 
 exercise of corporate action. If it does state such a purpose, and if 
 the other requirements of the law are complied with, it is a legal cor- 
 poration, and authorized to act as such. In either case the articles 
 themselves are the sole criterion to ascertain the purpose for which it 
 was formed, and the intent must be gathered alone from the written 
 instrument, and can not be aided or varied or contradicted by testi- 
 mony or averments aliunde the instrument itself. The question, 
 therefore, is, is the purpose set forth in the articles such as the statute 
 authorizes the formation of corporations to carry on? We think it 
 is. Its expressed purpose is to manufacture for market Detroit river 
 and lake ice. It was not necessary for the articles to state the means 
 or methods of manufacture, nor are we to presume that the undertak- 
 ing would be impossible of accomplishment. * * * 
 
 Arguments omitted. Only part of opinion given.
 
 606 ATTORNEY GENERAL V. LORMAN. 1 57 
 
 The replication (of the attorney-general) sets forth the manner in 
 which the Belle Isle Ice Company conducts its business, as follows: 
 
 "Said company owns and leases various river and lake fronts upon 
 the Detroit river and Lake St. Clair during the winter months. When 
 the ice is formed by a natural process, without the aid of any artificial 
 means whatsoever, and of a thickness sufficient for use, it is cut pre- 
 cisely as it is formed by the natural process of freezing on said lake or 
 river, and stored in ice-houses owned by the company. The manner 
 of cutting said ice is, and has been, as follows: Any snow which 
 may have fallen upon the ice is scraped and shoveled off by means 
 of scrapers drawn by horses, and by hand shovels used by men. The 
 ice is then marked off into squares of twenty-two inches in width, a 
 hand-marker being first used to layout the lines, after which a marker 
 drawn by horses is used, which cuts lines from two to four inches in 
 depth into the ice. Ice-plows, also drawn by horses, follow in these 
 lines, cutting the ice to a depth of from six to fourteen inches, and the 
 remaining thickness of ice is sawed through by means of long saws 
 operated by hand, or is broken off by breaking bars, and separated 
 from the solid mass of ice. The ice thus cut is floated to the foot of 
 inclined slides or elevators leading to the ice-houses where it is to be 
 stored, and is hoisted up by tackle operated by steam or horse-power, 
 and conducted to the ice-houses, where it is packed in layers, and 
 covered with some non-conducting material, such as marsh hay or 
 sawdust. As the ice is required for use, it is transported to large ice- 
 barges built for the purpose, and capable of holding 100 tons of ice, 
 each taken to proper distributing points in the city of Detroit, where 
 the ice is cut into smaller pieces suitable for consumption, and placed 
 in covered wagons and delivered to customers. In the course of 
 the business, as conducted by said Belle Isle Ice Company, a large 
 number and variety of tools are necessary for clearing, marking, saw- 
 ing, chopping and handling the ice, as heretofore fully stated, before 
 it is in proper shape to be delivered to customers, and also ice-houses, 
 ice-barges, wagons and other implements, and a large force of men." 
 
 Worcester defines "manufacturing" as follows: 
 
 "(i) The process of making anything by art, or of reducing ma- 
 terials into form fit for use by hand or by machinery; as an 'estab- 
 lishment for the manufacture of cloth.' 
 
 " ( 2) Anything made or manufactured by hand, or manual dexterity, 
 or by machinery." 
 
 The same word, as a verb, he defines: 
 
 "(i) To form by manufacture, or workmanship, by the hand or by 
 machinery; to make by art and labor." 
 
 The process described in the replication certainly does show that 
 the ice is reduced into form fit for use, both by hand and by the use 
 of machinery, and the answer of the respondents shows that this is 
 done by the outlay of the capital, at least of $50,000, and the quantity 
 thus manufactured annually is about 30,000 tons. It is very likely 
 that the garnering and preparation of ice fit for consumers of the 
 article falls very near the line. True, its natural condition is not
 
 I $8 CONDITIONS OF DE JURE EXISTENCE. 607 
 
 changed. The article itself is a natural product, as described in the 
 replication. It is ice when it is taken from the river, and it is ice 
 when delivered to the consumers. The form alone is changed. It is 
 reduced in size and delivered in quantities to suit the convenience of 
 the patrons of the company. But it is 'not necessary, to constitute 
 the commodity a manufactured article, that a chemical change should 
 be wrought in the thing manufactured. Iron manufactured from iron 
 ore remains iron. Cotton gathered from the boll, and, by means of 
 complicated machinery manufactured, becomes the cotton of com- 
 merce. Lumber is manufactured from logs or timber simply by 
 changing its form. And it had been held that grinding bones to pro- 
 duce bone dust of commerce was manufacturing, within the meaning 
 of the revenue laws of the United States. Schriefer v. Wood, 5 
 Blatchf. 215. So it was held by the supreme court of the United 
 States that timber split into staves, or into long pieces designed for 
 shovel handles, was "manufactured," and not covered by the reci- 
 procity treaty of 1854. United States v. Hathaway, 4 Wall. 404, 
 408. * * * 
 
 Demurrer to replication sustained. 
 
 Note. What are or are not manufacturing corporations: Water companies are 
 not. 1868, Dudley v. Jamaica P. Aqueduct, 100 Mass. 183. Mining compa- 
 nies are not. 1870, Byers v. Franklin Coal Co., 106 Mass. 131; 1892, Horn 
 Silver Mining Co. v. New York, 143 U. S. 305. Gas companies are not. 1880, 
 Williams v. Rees, 2 Fed. Rep. 882; 1886, Covington Gas L. Co. v. Covington, 
 84 Ky. 94 ; but see, contra, 1882, Nassau Gas Light Co. v. Brooklyn, 89 N. Y. 409. 
 Electric light and power companies are not. 1891, Commonwealth v. Northern 
 Elec. L. Co., 145 Pa. St. 105; 1891, Commonwealth v. Edison Elec. L. Co., 
 145 Pa. St. 131 ; 1898, Evanston Elec. 111. Co. v. Kochersperger, 175 111. 26, 9 
 Am. & E. C. C. (N. S.) 224; but contra, 1892, People, ex rel., etc., v. Wemple, 
 129 N. Y. 543, 664; 1892, Beggs v. Edison Elec. I. Co., 96 Ala. 295. 
 
 And see, generally, as to what is manufacturing, 1885, Engle v. Sohn, 41 Ohio 
 St. 691, 52 Am. Rep. 103 and note. 
 
 The purposes for which a corporation is formed are to be determined by an in- 
 spection of its articles of association. 1896, Detroit Driving Club v. Fitzgerald, 
 109 Mich. 670, 4 Am. & E. C. C. (N. S.) 546, 67 N. W. 899; 1898, Evanston E. 
 I. Co. v. Kochersperger, 175 111. 26, and extrinsic evidence as to the unlawful 
 intentions of the promoters will not be received to defeat an action by such 
 corporation against a subscriber upon the stock subscription contract. 1894, 
 United States Vinegar Co. v. Schlegel, 143 N. Y. 537 ; 1895, United States Vin- 
 egar Co. v. Foehrenbach, 148 N. Y. 58, 3 Am. & E. C. C. (N. S.) 164. 
 
 Sec. 158. Same. 
 
 ( /) Subscribing and acknowledging articles or charter. 
 
 KAISER v. LAWRENCE SAVINGS BANK ET AL. 
 1 88 1. IN THE SUPREME COURT OF IOWA. 56 Iowa Rep. 104111. 
 
 The plaintiff, in April, 1877, became a creditor of the Lawrence 
 Savings Bank by reason of a deposit of money made by him in the 
 bank, which bank was located and doing business in the city of Law- 
 rence, Kan. As such creditor he seeks to recover of the defendant, 
 
 1 Only so much of the case as relates to the one point is given.
 
 608 KAISER V. LAWRENCE SAVINGS BANK. 158 
 
 Hoag, upon the ground that the Lawrence Savings Bank was a part- 
 nership or unincorporated company, and that Hoag was a member of 
 it. Hoag does not deny his ownership, but denies that the Lawrence 
 Savings Bank was an unincorporated company or partnership, and 
 avers that the same was duly incorporated under the laws of Kansas, 
 by reason whereof he was exempt from personal liability for the debts 
 of the bank. There was a trial without a jury, and judgment for the 
 plaintiff. The defendant Hoag appeals. 
 
 ADAMS, C. J. The evidence tends to show that certain individuals 
 attempted in good faith to become incorporated under the law r s of 
 Kansas for the purpose of doing business as a savings bank, and sub- 
 scribed for shares in the supposed corporation. For several years 
 they did business as a savings bank, under the supposition that they 
 were duly incorporated. Prior to the time that plaintiff became a 
 creditor of the bank, the defendant Hoag purchased an interest in the 
 
 bank, and remained the owner of such interest from that time forward. 
 
 * * * 
 
 The general incorporation law of Kansas constitutes chapter 23 of 
 the statutes of Kansas. Section 8 provides that "the charter of an 
 intended corporation must be subscribed by five or more persons, 
 three of whom, at least, must be citizens of this state, and must be 
 acknowledged by them before an officer duly authorized to take ac- 
 knowledgment of deeds." Section 9 provides that "such charter shall 
 thereupon be filed in the office of the secretary of state." 
 
 A certificate of the secretary of state of the state of Kansas was in- 
 troduced in evidence, showing what papers, and what only, had been 
 filed in his office pertaining to the incorporation of the Lawrence Sav- 
 ings Bank. The certificate shows that there were filed in his office 
 what are denominated articles of association. The statute requires 
 that a charter shall be filed. We are inclined to think, however, that 
 the fact that the paper filed is denominated articles of association, in- 
 stead of a charter, is not sufficient to invalidate it. We proceed, then, 
 to inquire whether the paper complies with the statute in other re- 
 spects, and we conclude that it does not. The statute requires that it 
 shall be subscribed and acknowledged by five or more persons. The 
 paper purporting to be articles of association is so informally drawn 
 and executed that we can not say it is subscribed by any one. The 
 paper consists of eight articles. The first six articles purport to be 
 subscribed by twenty-three persons, but the seventh and eighth articles 
 are not subscribed, and the seventh article is, under the statute, ma- 
 terial. But if the articles had all been subscribed they would be fatally 
 defective for want of acknowledgment by the subscribers, or a suf- 
 ficient number thereof to comply with the statute. * * * 
 
 The defendant insists, however, that in order to establish the cor- 
 porate existence of the Lawrence Savings Bank as against plaintiff 
 it is sufficient to show authority to create the corporation, a bonce 
 fide attempt on the part of the corporators to become incorporated, 
 and the doing of business as a corporation. In support of this prop- 
 osition the defendant cites the Buffalo and Allegany R. Co. v. Carey,
 
 159 CONDITIONS OF DE JURE EXISTENCE. 609 
 
 26 N. Y. 77. In that case the court said, "that if the papers filed 
 are colorable, but so defective that, in a proceeding on the part of 
 the state against it, it would for that reason be dissolved, yet by the 
 acts of user under such organization it becomes a corporation de facto, 
 and no advantage can be taken of such defect in its constitution col- 
 laterally by any person." Substantially the same doctrine was 
 enunciated in Kurtz v. The Paola Town Co., 20 Kan. 403, and Pope 
 v. The Capital Bank, 20 Kan. 440. It should be observed, however, 
 that in those cases the defendant set up a want of incorporation of 
 the plaintiff and sought to escape liability upon that ground. In the 
 case at bar the defendant sets up exemption, averring that the attempt 
 to become incorporated and the doing of business under a claim of 
 incorporation were sufficient to create the exemption. 
 
 It will be seen at once that the principle involved in those cases is 
 essentially different from that in the case at bar. 
 
 It is hardly necessary to say that where incorporation has once taken 
 place no act of forfeiture can be set up in a collateral action, until 
 forfeiture has been judicially declared in an action brought for that 
 purpose. See Angell & Ames on Corporations, 636, and cases 
 cited. But the principle involved in those cases is essentially differ- 
 ent from that in the case at bar. 
 
 In Humphrey v. Mooney, i Colo. 193, a creditor of an assumed 
 corporation sought to hold a member as a partner. It was held that 
 as his right of action was based upon an express contract with the as- 
 sumed corporation he was estopped to deny that it was in fact a cor- 
 poration. The doctrine of that case is substantially that relied upon 
 by the defendant. But it seems to us that it is not sustained by the 
 weight of authority. The court cited in support of the decision Eaton 
 v. Aspinwall, 19 N. Y. 121. and Buffalo v. Carey, 26 N. Y. 77, 
 but neither of these cases, it appears to us, is in point. * * * 
 
 Affirmed. 
 
 Sec. 159. Same. 
 
 Acknowledging articles. 
 
 THE PEOPLE, APPELLANT, v. THE MONTECITO WATER CO., Er AL., 
 
 RESPONDENT. 1 
 
 1893. IN THE SUPREME COURT OF CALIFORNIA. 97 Cal. Rep. 
 
 276-281. 
 
 Appeal from a judgment of the superior court of Los Angeles 
 county. 
 
 The facts are stated in the opinion. 
 
 TEMPLE, C. Plaintiff appeals from a judgment entered upon de- 
 murrer to complaint. 
 
 The demurrer was general, and on the ground of insufficiency of 
 the facts. It is a proceeding taken by the attorney-general of the state 
 
 1 Only so much of the case as relates to the one point given. 
 39 WIL. CASES.
 
 6lO PEOPLE V. MONTECITO WATER CO. 159 
 
 in the nature of a quo ivarranto to deprive the defendant corporation 
 of its corporate charter, and procure its dissolution on two grounds: 
 i . For want of a substantial compliance with the statutory require- 
 ments in its formation. * * * 
 
 It is contended that the corporation is not rightfully such, because 
 while five incorporators signed the articles of incorporation, only four 
 acknowledged the same. 
 
 Section 292 of the civil code reads as follows: "The articles of in- 
 corporation must be subscribed by five or more persons, a majority of 
 whom must be residents of this state, and acknowledged by each be- 
 fore some officer authorized to take and certify acknowledgments of 
 conveyances of real property." 
 
 It was said in People v. Selfridge, 52 Cal. 331 : "The right to be 
 a corporation is in itself a franchise ; and to acquire a franchise under 
 a general law, the prescribed statutory conditions must be complied 
 with." Still, a substantial rather than a literal compliance will suf- 
 fice. (People v. Stockton, etc., R. Co., 45 Cal. 313; 13 Am. 
 Rep. 178.) Was there a substantial compliance in this case? 
 
 Because a substantial compliance will do, it does not follow that 
 any positive statutory requirements can be omitted on the ground that 
 it is unimportant. They are conditions precedent to acquiring a stat- 
 utory right, and none can be dispensed with by the court. 
 
 What is a substantial rather than a literal compliance may be illus- 
 trated from the cases. In Ex parte Spring Valley Water- Works, 17 
 Cal. 132, the certificate stated the place of business, but did not de- 
 scribe it as the "principal piace of business," as required. The court 
 said: "The statement that San Francisco was the place of business 
 would seem to imply that it was not only the principal but the only 
 place of business." 
 
 In People v. Stockton, etc., R. Co., 45 Cal. 306, 13 Am. Rep. 178, 
 the affidavit required in such cases to be attached to the certificate 
 stated that 10 per cent, of the amount subscribed had been actually 
 paid in, omitting the words "in good faith," which the statute re- 
 quired. In the certificate it was stated that more than 10 per cent, 
 had been actually in good faith paid in. It was held sufficient; and 
 it would seem that if it was actually paid in cash, it must have been 
 paid in good faith. 
 
 And it was further held that payment by checks drawn against suffi- 
 cient funds in a bank, which was ready to accept and pay checks, was 
 substantially payment in cash. 
 
 In People v. Cheeseman, 7 Colo. 376, the acknowledgment taken 
 by the notary omitted to state that the persons whose acknowledg- 
 ments were taken were personally known to the notary. The certifi- 
 cate did state that the persons who signed appeared before him and 
 acknowledged it. The statute did not prescribe what the acknowl- 
 edgment should contain, and it was held a substantial compliance 
 with the requirement, although the form prescribed for acknowledg- 
 ments to deeds was not followed. It was acknowledged. 
 
 In all these cases it will be seen that the thing required was done,
 
 I6O CONDITIONS OF DE JURE EXISTENCE. 6ll 
 
 but not literally, as directed. But there was no omission of any re- 
 quirement. No case has been cited where the entire omission of a 
 thing prescribed has been excused, unless it be the case of Larabee 
 v. Baldwin, 35 Cal. 155- That was not an action instituted by the state 
 to disincorporate on the ground of non-compliance. As we have seen, 
 unless the state complains, a de facto corporation must be considered, 
 under our code, as possessing a corporate character, and the stock- 
 holders, when sued upon their individual liability, should not be 
 allowed to make the point that they did not comply with the law. 
 
 In that case the certificate was signed by five directors, but two 
 failed to acknowledge it. Other questions are discussed at great length 
 in the opinion, but in regard to the point made on the certificate it was 
 simply remarked: "It is not clear that any fatal defect exists in the 
 certificate of incorporation. If so, it is cured by the act of April i, 
 1864." Plainly, it was unnecessary to consider the question. * * * 
 
 Section 292 of the Civil Code required the articles to be subscribed 
 and acknowledged by each. As this is an express condition precedent 
 to a valid incorporation, it is not of consequence to the court whether 
 it be a wise or necessary requirement or not. Still, it is easy to see 
 a reason for it. The certificate secures the state and all concerned 
 against the possibility of any fictitious names being subscribed to the 
 articles, and furnishes proof of the genuineness of the signatures. 
 
 If the acknowledgment can be dispensed with as to one, why not as 
 to two, or three, or all? 
 
 Ordinarily, no doubt, the state would not be expected to institute a 
 proceeding of this character for such a defect alone, and we must pre- 
 sume that the attorney-general would not have instituted this inquiry, 
 if he were not convinced that there were reasons sufficient to justify 
 it. Other reasons are alleged, but as the statute authorizes a proceed- 
 ing to forfeit the charter where the statute has not been complied with, 
 although the corporation is acting in good faith, and is a de facto cor- 
 poration, the complaint must be held to state a cause of action, and 
 the demurrer should be overruled. 
 
 The judgment should be reversed, and the cause remanded, with 
 directions to overrule the demurrer. 
 
 Sec. 160. Same. 
 (^) Filing articles. 
 
 BERGERON, RESPONDENT, v. HOBBS AND OTHERS, APPELLANTS.* 
 
 1897. IN THE SUPREME COURT OF WISCONSIN. 96 Wis. Rep. 
 641-658, 65 Am. Stat. Rep. 85. 
 
 Appeal from a judgment of the circuit court for Bayfield county ; 
 John K. Parish, C. J. Affirmed. 
 
 1 Arguments omitted. The strong dissenting opinion of Marshall, J., hold- 
 ing there was a corporation de facto, though not de jure, and that the plaintiff 
 should be estopped, is omitted.
 
 6l2 BERGERON V. HOBBS. l6o 
 
 The defendants, under the name of Bayfield Agricultural Associ- 
 ation, employed several persons to perform labor in improving their 
 grounds and in erecting fences and buildings. Time checks given by 
 the defendants to such laborers, for such labor, were assigned to the 
 plaintiff, who brings this action to recover their amount, alleging that 
 the defendants were a co-partnership. The defendants alleged that 
 they were members of a corporation, and denied that they were co- 
 partners, or liable as such. This was the issue which was tried. It 
 appeared upon the trial that articles of organization of the defendants 
 as the Bayfield County Agricultural Association, and a certificate 
 showing the election of officers, had been recorded in the office of the 
 register of deeds of Bayfield county, but were not on file there. They 
 had been deposited with instruction to record and return them, 
 which had been complied with. When the testimony on both sides 
 was in, the court directed a verdict for the plaintiff for the amount of 
 the time checks. From a judgment on that verdict the defendants 
 appeal. 
 
 NEWMAN, J. There are two questions raised on this appeal: i. 
 Was the mere recording of the articles of incorporation, with the cer- 
 tificate of the election of officers, without the intention or fact of the 
 papers themselves remaining in the office, a sufficient compliance with 
 the statute, so that the organization of the corporation became com- 
 plete, as upon a proper filing of the papers themselves? And 2. If 
 the recording was not sufficient for that purpose, are the defendants 
 liable to the plaintiff only as a de facto corporation, or are they liable 
 as co-partners? 
 
 i. The statute (sec. 1460, R. S.) provides that, upon the filing of 
 "a certificate of organization, * * * with a copy of the consti- 
 tution," in the office of the register of deeds of the county, "such so- 
 ciety shall have all the powers of a corporation necessary to promote 
 the objects thereof." It can not be doubted that the filing of the 
 proper paper in the proper office is made, by the statute, a condition 
 precedent to the vesting of corporate powers. The court may not be 
 able to clearly define the respect wherein the mere recording and re- 
 moval of the papers from the office fails to serve the full purpose 
 which the legislature intended to accomplish by the filing of them. 
 The legislature, no doubt, had good and sufficient reasons for its 
 choice of means to promote its purpose. For the court it is not a 
 question of equivalents. A literal filing of the papers is necessary be- 
 cause it is so written in the law. The term "filing" and the verb "to 
 file," as related to in this subject, include the idea that the paper is to 
 remain in its proper order on file in the office. A paper is said to be 
 filed when it is delivered to the proper officer, and by him received, 
 to be kept on file. Bouv. Law Diet. The statute is plain and easy 
 of observance. Valuable rights and exemptions from personal lia- 
 bility are to be secured by its observance. It is no undue severity to 
 require its strict observance. The defendants had not observed it, 
 and had not secured corporate powers.
 
 160 CONDITIONS OF DE JURE EXISTENCE. 613 
 
 2. Had the defendants secured immunity from individual liability? 
 No doubt, as a general rule, where an attempt to organize a corpora- 
 tion fails by omission of some substantial step or proceeding required 
 by the statute, its members or stockholders are liable as partners for 
 its acts and contracts. Beach Priv. Corp., 16, 162; I Thompson 
 Corp., 239, 416, 417. But the defendants' contention is that they 
 are not within this rule, because they are at least de facto a cor- 
 poration, and their right to be a corporation can not be inquired into in 
 a collateral action, but only in a direct action for that purpose, by the 
 state. The infirmity of the defendant's contention is in the assump- 
 tion that they are de facto a corporation. In order to secure this im- 
 munity from inquiry into its right to be a corporation in a collateral 
 action, its action s a corporation must be under a color, at least, of 
 right. It is immaterial that they have carried on business, under the 
 supposed authority to act as a body corporate, in entire good faith. If 
 they had not color of legal right, they have obtained no immunity 
 from individual liability for the debts of the supposed corporation. 
 Until the articles of incorporation are filed in the office of the register 
 of deeds of the county, there is no color of legal right to act as a cor- 
 poration. The filing of such paper is a condition precedent to the 
 right to so act. So long as an act, required as a condition precedent, 
 remains undone, no immunity from individual liability is secured. I 
 Thompson Corp., 226, 508. 
 
 The defendants are not a corporation either de jure or de facto, but 
 are liable for the plaintiffs' claim as partners. It is not necessary to 
 prove a co-partnership by evidence. That was established by impli- 
 cation of law. Nor was it necessary to prove that the debt was un- 
 paid. There was no presumption that it had been paid to be rebutted. 
 The judgment of the circuit court is right, and must be affirmed. 
 
 By the court The judgment of the circuit court is affirmed. 
 
 Note. To same effect, see, 1859, Mokelumne Hill C. & M. Co. v. Wood- 
 bury, 14 Cal. 425, supra, p. 296; 1874, Indianapolis M. Co. v. Herkimer, 46 Ind. 
 142 ; 1876, First National Bank v. Davies, 43 Iowa 424 ; 1876, Abbott v. Omaha 
 Smelting Co., 4 Neb. 416; 1879, Doyle v. Mizner, 42 Mich. 332, infra, p. 632; 
 1879, Garnett v. Richardson, 35 Ark. 144; 1889, Childs v. Kurd, 32 W. Va. 
 66; 1893, Guckert v. Hacke, 159 Pa. St. 303; 1894, Martin v. Deetz, 102 Cal. 
 55, 41 Am. St. Rep. 151; 1896, New York National Ex. Bk. v. Crowell, 177 
 Pa. St. 313. But compare, 1896, Supreme Court of Independent Order of For- 
 esters v. Sup. Ct. U. O. of F., 94 Wis. 234; also, 1890, Vanneman v. Young, 
 52 N. J. L. 403, and 1897, Johnson v. Okerstrom, 70 Minn. 303; 1900, Slocum 
 v. Head, 105 Wis. 431, 50 L. R. A. 324; 1901, Clausen v. Head, 110 Wis. 405, 
 84 Am. St. Rep. 933, 85 N. W. 1028, contra. 
 
 As to filing amendments of charter see, 1899, Jackson v. Crown Point Min- 
 ing Co., 21 Utah 2, 81 Am. St. Rep. 651, 59 Pac. 238; 1900, Hoeft v. Kock, 
 323 Mich. 171, 81 Am. St. Rep. 159, 81 N. W. 1070.
 
 6 14 FINNEGAN V. NOERENBERG. l6l 
 
 ARTICLE V. CONDITIONS OF DE FACTO EXISTENCE. 
 
 Sec. 161. ( I ) Conditions precedent. 
 
 FINNEGAN v. NOERENBERG. 1 
 
 1893. IN THE SUPREME COURT OF MINNESOTA. 52 Minn. Rep. 
 239-245, 38 Am. St. Rep. 552. 
 
 GILFILLAN, C. J. Eight persons signed, acknowledged and caused 
 to be filed and recorded in the office of the city clerk in Minneapolis, 
 articles assuming and purporting to form, under laws of 1870, ch. 29, 
 a corporation, for the purpose, as specified in them, of "buying, own- 
 ing, improving, selling and leasing of lands, tenements and heredita- 
 ments, real, personal and mixed estates and property, including the 
 construction and leasing of a building in the city of Minneapolis, 
 Minn., as a hall to aid and carry out the general purposes of the 
 organization known as the 'Knights of Labor.' ' The association re- 
 ceived subscriptions to its capital stock, elected directors and a board 
 of managers, adopted by-laws, bought a lot, erected a building on it, 
 and, when completed, rented different parts of it to different parties. 
 The plaintiff furnished plumbing for the building during its construc- 
 tion, amounting to $599.50, for which he brings this action against 
 several subscribers to the stock, as co-partners, doing business under 
 the firm name of the "K. of L. Building Association." The theory 
 upon which the action is brought is that, the association having failed 
 to become a corporation, it is in taw a partnership, and the members 
 liable as partners for the debts incurred by it. 
 
 It is claimed that the association was not an incorporation because 
 -first, the act under which it attempted to become incorporated, to 
 wit. Laws 1870, ch. 29, is void, because its subject is not properly 
 expressed in the title ; second, the act does not authorize the forma- 
 tion of corporations for the purpose or to transact the business stated 
 in the articles; third, the place where the business was to be carried 
 on was not distinctly stated in the articles, and they had, perhaps, 
 some other minor defects. 
 
 It is unnecessary to consider whether this was a de jure corpora- 
 tion, so that it could defend against a quo tvarranto, or an action in 
 the nature of a quo warranto, in behalf of the state; for although 
 an association may not be able to justify itself when called on by 
 the state to show by what authority it assumes to be and act as a 
 corporation, it may be so far a corporation that, for reasons of 
 public policy, no one but the state will be permitted to call in ques- 
 tion the lawfulness of its organization. Such is what is termed a 
 corporation de facto, that is, a corporation from the fact of its act- 
 
 1 Arguments omitted ; also statement of facts, except as given in the opinion.
 
 l6l CONDITIONS OF DE FACTO EXISTENCE. 
 
 ing as such, though not in law or of right a corporation. What is 
 essential to constitute a body of men a de facto corporation is stated 
 by Selden, J., in Methodist, etc., Church v. Pickett, 19 N. Y. 482, 
 as "(i) the existence of a charter or some law under -which a corpora- 
 tion with the powers assumed might lawfully be created; and (2) a 
 user by the party to the suit of the rights claimed to be conferred by 
 such a charter or law," This statement was apparently adopted by 
 this court in East Norway Church v. Froislie, 37 Minn. 447, 35 N. 
 W. Rep. 260, but as it leaves out of account any attempt to organize 
 under the charter or law, we think the statement of what is essential 
 defective. The definition in Taylor on Private Corporations (page 145) 
 is more nearly accurate: " When a body of men are acting as a cor- 
 poration, under color of apparent organization, in pursuance of some 
 charter or enabling act, their authority to act as a corporation can 
 not be questioned collaterally." 
 
 To give a body of men assuming to act as a corporation, where 
 there has been no attempt to comply with the provisions of any law 
 authorizing them to become such, the status of a de facto corporation 
 might open the door to frauds upon the public. It would certainly be 
 impolitic to permit a number of men to have the status of a corpora- 
 tion to any extent merely because there is a law under which they 
 might have become incorporated, and they have agreed among them- 
 selves to act, and they have acted, as a corporation. That was the 
 condition in Johnson v. Corser, 34 Minn. 355, 25 N. W. Rep. 799, 
 in which it was held that what had been done was ineffectual to limit 
 the individual liability of the associates. They had not gone far 
 enough to become a de facto corporation. They had merely signed 
 the articles, but had not attempted to give them publicity by filing for 
 record, which the statute required. 
 
 ' ' Color of apparent organization under some charter or enabling 
 act" does not mean that there shall have been a full compliance with 
 what the law requires to be done, nor a substantial compliance. A 
 substantial compliance will make a corporation de jure, but there 
 must be an apparent attempt to perfect an organization under the law. 
 There being such apparent attempt to perfect an organization, the 
 failure as to some substantial requirement will prevent the body being 
 a corporation de jure; but, if there be user pursuant to such attempted 
 organization, it will not prevent it being a corporation de facto. 
 
 The title to chapter 29 is "an act in relation to the formation of co- 
 operative associations." Appellant's counsel argues that the body of 
 the act does not contain a single element of "co-operation," as that 
 term is generally understood. But how it is generally understood he 
 does not inform us. In a broad sense, all associations, whether cor- 
 porations or partnerships, are co-operative, for all the members, 
 either by their labor or capital, or both, co-operate to a common pur- 
 pose. There is undoubtedly, in popular use of the terms, a more 
 limited sense, though the precise limits are not well defined. There 
 is no legal, as distinguishable from their popular signification. In 
 the Century Dictionary the term "co-operative society" is defined,
 
 6l6 FINNEGAN V. NOERENBERG. l6l 
 
 "a union of individuals, commonly laborers or small capitalists, 
 formed * * * for the prosecution in common of a productive 
 enterprise, the profits being shared in accordance with the amount of 
 capital or labor contributed by each member." Taking the distinctive 
 feature of a co-operative society to be that it is made up of laborers 
 or small capitalists, it is mariifest that the chapter intends to deal with 
 just that sort of associations. Not only does it contemplate that the 
 operations of the corporations shall be local, but the capital stock is 
 limited to $50,000, the stock which one member may hold to $1,000. 
 No one can become a shareholder without the consent of the man- 
 agers, and no one is entitled to more than one vote. 
 
 The provisions in the body of the act are in accord with the title, 
 and it is therefore not open to the objection made against it. 
 
 The purposes for which, under the act, corporations may be formed, 
 are "of trade, or of carrying on any lawful mechanical, manufactur- 
 ing or agricultural business." The main purpose of the act being to 
 enable men of small capital, or of no capital but their labor and their 
 skill in trades, to form corporations, for the purpose of giving employ- 
 ment to such capital or labor and skill, the language expressing the 
 purposes for which such corporations may be formed ought not to be 
 narrowly construed. Giving a reasonably liberal meaning to the 
 word "trade" in the act, it would include the buying and selling of 
 real estate, and, upon a similar construction, the word "mechanical" 
 would include the erection of buildings. The doing of the mason, 
 or brick, or carpenter, or any other work upon a building is certainly 
 mechanical. There can be little question that corporations might be 
 formed to do either of those kinds of work on buildings, and, that be- 
 ing so, there is no reason why they may not be formed to do all of 
 them. There is no reason to claim that such a corporation must do 
 its work as a contractor for some other person. It may do it for itself, 
 and, as the act authorizes the corporation to "take, hold and convey 
 such real and personal estate as is necessary for the purposes of its or- 
 ganization," it may, instead of working for others as a contractor, 
 make its profit by buying real estate, erecting buildings on it, and 
 either selling or holding them for leasing. 
 
 The omission to state distinctly in the articles the place within 
 which the business is to be carried on, though that might be essential 
 to make it a de jure corporation, would not prevent it becoming one 
 de facto. 
 
 The foundation for a de facto corporation having been laid by the 
 attempt to organize under the law, the user shown was sufficient. 
 
 Judgment affirmed. 
 
 Note. See note at end of Cochran v. Arnold, infra, p. 629 ; 1902, Tulare 
 Irrigation Disk v. Shepard, U. S. , Adv. Sh. May 1, 1902, p. 531. 
 Compare, 1900, Slocum v. Head, 106 Wis. 431, 50 L. E. A. 324.
 
 < 162 CONDITIONS OF DE FACTO EXISTENCE. 6l/ 
 
 Sec. 162. Same. 
 
 SOCIETY PERUN v. CLEVELAND. 1 
 
 1885. IN THE SUPREME COURT OF OHIO. 43 Ohio State Rep. 
 
 481-499. 
 
 Error to the district court of Cuyahoga county. 
 
 On the 28th of January, 1874, the city of Cleveland conveyed 
 to Perun (an incorporated school and library society) certain real 
 estate situated in that city, and to secure the unpaid purchase-money 
 therefor, Perun, on the same date, executed and delivered to the city 
 four promissory notes and a mortgage upon the premises conveyed. 
 
 The city neglected to file this mortgage for record until the 2ist 
 day of October, 1879. In February, 1874, certain persons attempted 
 to organize a mutual benefit association under an act supplementary 
 to an act to provide for the creation and regulation of incorporate 
 companies, passed May i, 1852 (S. & C. Stat. 271), passed April 
 20, 1872 (69 Ohio L. 82), under the corporate name of Society 
 Perun. Thereafter, in May, 1874, Perun delivered to Society Perun 
 its deed purporting to convey to the latter the premises theretofore 
 mortgaged to the city. From that time forward, and prior to the 
 filing of the city's mortgage for record, Society Perun, acting in its 
 supposed corporate capacity, from time to time, executed and deliv- 
 ered deeds, mortgages and executory contracts of sale, purporting to 
 convey, incumber and sell parcels of these mortgaged premises to va- 
 rious parties, who were made defendants in the action below, and 
 some of whom (including Amasa Stone, a mortgagee, and who had 
 paid taxes upon the premises mortgaged to him), are cross-petitioners 
 in error. Thereafter, in June, 1880, in a proceeding in quo warranto, 
 in this court, instituted by the attorney-general. Society Perun was 
 adjudged not to have become incorporated in conformity to the laws of 
 this state, but that its pretended incorporation was in violation thereof ; 
 and it was accordingly ousted of all rights and franchises to be a cor- 
 poration. 
 
 These proceedings in quo tvarranto were had pending and prior to 
 the final judgment in the action below, which was brought by the city 
 to foreclose her mortgage, and also to foreclose her supposed vendor's 
 lien on the mortgaged premises, as against these subsequent grantees, 
 mortgagees and purchasers. 
 
 The cause was appealed from the court of common plea's to the 
 district court, wherein it was tried upon the issues, the court finding, 
 among other things, that, as to the city of Cleveland, Society Perun 
 was not a corporation, either in law or in fact, and that the convey- 
 ance to it by Perun was void as against the city, and that the mort- 
 gages and other liens and claims of all the defendants (except the lien 
 of Amasa Stone for taxes, and the claims of certain defendants for 
 
 1 Arguments omitted.
 
 6l8 SOCIETY PERUN V. CLEVELAND. 162 
 
 improvements on the premises) were subsequent and inferior to the 
 lien of the city, in whose favor the court adjudged the second lien, 
 and subsequent only to the lien of Amasa Stone for taxes paid by him, 
 but of equal rank and merit with the holders of liens for expenditures 
 on account of improvements above mentioned. 
 
 By the judgment in the quo tvarranto proceeding it was by this 
 court in form adjudged that the defendants (the pretended incor- 
 porators), ever since their pretended incorporation, had unlawfully 
 and without authority exercised the franchises of, and usurped the 
 right to be, a body corporate ; that the pretended organization of these 
 defendants as a corporation was wholly void and of no effect, and 
 vested in them no corporate rights, powers, privileges, or franchises 
 of any description whatever. 
 
 It was further in form adjudged that the defendants never had. nor 
 had any of them, the authority or lawful right to be a body corporate 
 or to exercise or hold any of the powers, rights and liberties, privi- 
 leges, functions or franchises of a body corporate, but that they and 
 each of them in the use and exercise of the same were and had ever 
 been usurpers thereof. The sole ground upon which this judgment 
 of ouster was rendered was that, while the statute required that they 
 should set forth in their certificate of incorporation (among other 
 things) the manner of carrying on the business of the association, the 
 attempted compliance with this requirement was in these words: 
 
 ''Third. That the manner of carrying on the business of said as- 
 sociation shall be such as may be from time to time prescribed by the 
 by-laws of such association ; provided that the same shall not be incon- 
 sistent with the laws of the state of Ohio." 
 
 Upon the trial below the plaintiff gave in evidence, against the 
 objection of defendants, the record of the quo tvarranto proceedings. 
 
 The defendants offered in evidence the writing which was filed 
 with the secretary of state as the certificate of incorporation of Society 
 Perun. 
 
 They also offered to prove that the pretended incorporators pro- 
 ceeded to comply strictly with the requirements of the statutes, that 
 they elected trustees, prepared a certificate of incorporation stating 
 explicitly the manner of carrying on the business ; that this was for- 
 warded to the secretary of state, who submitted it to the attorney- 
 general for examination and approval ; that the secretary of state re- 
 turned this paper with another form of certificate which had been 
 approved by the attorney-general and secretaiy of state, and which 
 was the identical certificate actually filed with the secretary of state, 
 and under the supposed authority of which an organization was in 
 good faith attempted, and that they proceeded in good faith to act 
 and transact its business under the supposed authority of such incor- 
 poration. 
 
 All this was excluded, and the defendants excepted. To reverse 
 this judgment the present proceeding is prosecuted. * * * 
 
 OWEN, J. The defendants below, conceding that Society Perun 
 had never been a corporation de jure, maintain that the court below
 
 1 62 CONDITIONS OF DE FACTO EXISTENCE. 
 
 should have permitted them to prove that such society was a de facto 
 corporation ; that it attempted, in good faith, to become a body cor- 
 porate ; proceeded to act and transact business in good faith under 
 the supposed authority of incorporation, and that its acts ought not to 
 have been declared to be wholly void as against the city of Cleveland. 
 
 The judgment of ouster was an adjudication between the state 
 and the society upon the right of the latter to exercise corporate fran- 
 chises. For the purposes of such adjudication it was competent for 
 this court to consider and determine what had been its status from its 
 first attempt to incorporate. But it had no power to pass upon or 
 determine the rights of parties not before it. 
 
 It was not competent for this court to determine in that proceeding 
 that Society Perun had never been a corporation de facto, or that its 
 acts and business transactions, under the color of its supposed charter 
 powers, were void. The authority of the court in that behalf was 
 derived from section 6774 (Rev. Stat.), which provides: "When a 
 defendant is found guilty of usurping, intruding into, or unlawfully 
 holding or exercising an office, franchise or privilege, judgment shall 
 be rendered that such defendant be ousted and altogether excluded 
 therefrom, and that the relator recover his costs." 
 
 When the court had excluded the society from its franchises to be a 
 corporation, it exhausted its jurisdiction over the subject-matter. It 
 had no power to speak concerning whatever rights may have been ac- 
 quired by the society as a corporation de facto, or by third parties in 
 their transactions with it as an acting corporation. 
 
 It is conceded by the city that parties who had recognized the ex- 
 istence of the society by their transactions with it as a supposed cor- 
 poration are estopped to deny its corporate existence. But it is main- 
 tained that the city, having engaged in no transactions with it, is free 
 to challenge its existence as a corporation de facto, as well as de jure. 
 The argument is that: "No case can be found where it is held that 
 there is a corporation de facto against persons who have in no way 
 recognized its existence as a corporation," and that: "The notion of 
 a de facto corporation is based on the doctrine of estoppel ; when es- 
 toppel can not be invoked there can be no de facto corporation." 
 
 The theory that a de facto corporation has no real existence, that it is 
 a mere phantom, to be invoked only by that rule of estoppel which 
 forbids a party who has dealt with a pretended corporation to deny its 
 corporate existence, has no foundation, either in reason or authority. 
 A de facto corporation is a reality. It has an actual and substantial 
 legal existence. It is, as the term implies, a corporation. 
 
 "It is a self-evident proposition that a contract can not be made 
 with a corporation unless the corporation be in existence at the time. 
 A real contract with an imaginary corporation is as impossible, in the 
 nature of things, as a real contract with an imaginary person. It is 
 essential, therefore, in order to establish the existence of a contract 
 with a corporation, to show that the corporation was in existence, at 
 least de facto, at the time the contract was made." Morawetz Pri- 
 vate Corporations, 137.
 
 62O SOCIETY PERUN V. CLEVELAND. 162 
 
 It is bound by all such acts as it might rightfully perform as a cor- 
 poration de jure. Where it has attempted in good faith to assume 
 corporate powers ; where its proceedings in that behalf are colorable, 
 and are approved by those officers of the state who are authorized to 
 act in that regard; where it has honestly proceeded for a number of 
 years, without interference from the state, to transact business as a 
 corporation; has been reputed and dealt with as a duly incorporated 
 body, and valuable rights and interests have been acquired and trans- 
 ferred by it, no substantial reason is suggested why its corporate ex- 
 istence, in a suit involving such transactions, should be subject to at- 
 tack by any other party than the state, and then only when it is called 
 upon, in a direct proceeding for that purpose, to show by what au- 
 thority it assumes to be a corporation. 
 
 Proof was offered upon the trial below to show (i) that the per- 
 sons seeking to incorporate first filed with the secretary of state a cer- 
 tificate which fully complied with the requirements of the statutes, 
 and free from the defects which finally proved fatal to its existence, 
 but which was disapproved by the attorney-general; (2) that the cer- 
 tificate of incorporation which was finally filed with the secretary of 
 state recited that "said association has been formed and organized 
 for the mutual protection and relief of its members, and for the pay- 
 ment of stipulated sums of money to the families or heirs of the de- 
 ceased members of said association ; that the officers of said associa- 
 tion have been duly chosen ; that for the purpose of becoming a body 
 corporate under an act passed by the general assembly of the state of 
 Ohio, entitled an act supplementary to an act, entitled an act to pro- 
 vide for the creation and regulation of incorporated companies in the 
 state of Ohio, passed May i, 1852, passed April 20, 1872 ;" (3) that this 
 certificate was approved by the secretary of state, and also by the 
 attorney-general, as provided by the statutes (69 Ohio L. 150) ; (4) 
 that it proceeded in good faith to transact business peculiar to cor- 
 porations provided for by the act under which it attempted to incor- 
 porate. 
 
 All this was excluded, and the decision of the court below prac- 
 tically rested on the proof offered by the city, that Society Perun had 
 been ousted of its franchises, which was evidently construed as de- 
 termining that such society had from the first no corporate existence, 
 either de jure or de facto, and consequently no capacity to receive 
 or impart any interest in or title to real estate, except as against such 
 parties as were by reason of their recognition of or dealings with it, 
 estopped to deny its incorporate existence. 
 
 Did the court err? This fairly presents the controlling and very 
 important question : Was it competent to show, as against a party 
 who was not estopped to deny its corporate existence, as Society 
 Perun was, at the time of the transactions involved in controversy, a 
 corporation de facto? 
 
 In Attorney-General, ex rel. Pettee, v. Stevens, Saxton (N. J.Eq.) 
 369, the relator sought to enjoin the Camden and Amboy Railroad 
 and Transportation Company and others acting under its authority
 
 1 62 CONDITIONS OF DE FACTO EXISTENCE. 621 
 
 from erecting a bridge over a navigable stream. The claim was that 
 the act authorizing the corporation had been perverted and disre- 
 garded, and that there was no legal incorporation. The relators were 
 in no manner estopped to attack the corporate existence of the re- 
 spondent. The court held : 
 
 -'Where a set of men claiming to be a legally incorporated com- 
 pany under an act of the legislature, have done everything necessary 
 to constitute them a corporation, colorably at least, if not legally, and 
 are exercising all the powers and functions of a corporation, they are 
 a corporation, de facto, if not de jure; and this court will not inter- 
 fere, in an incidental way, to declare all their proceedings void, and 
 treat them as a body having no rights or powers." 
 
 The chancellor speaking for the court said : 
 
 "Here, then, is a set of men claiming to be a legally incorporated 
 company under the act of the legislature, exercising all the powers 
 and functions of a corporation. They are a corporation de facto, if 
 not de jure. Everything necessary to constitute them a corporation 
 has been done, colorably at least, if not legally ; and I do not feel at 
 liberty, in this incidental way, to declare all their proceedings void, and 
 treat them as a body having no rights or powers. It has been seen 
 that the court will not do this where a corporation properly organized 
 has plainly forfeited its privileges ; and there is but little difference in 
 principle between the two cases. In both the corporation is actually 
 in existence, but whether legally and rightfully so is the question. And 
 it appears to me that if the court can take cognizance of the matter in 
 this case, it must in all others where it can be brought up, not only 
 directly, but incidentally." 
 
 This case is approved and followed in National Docks R. Co. v. 
 Central R. Co., 32 N. J. Eq. 755, which held: "When a corporation 
 exists de facto, the court of chancery can not, at the instance of pri- 
 vate parties, restrain its operations upon the ground that its organiza- 
 tion is not de jure. In such case the proper remedy is by quo 
 warranto, or information in the nature thereof, instituted by the attor- 
 ney-general." The rule of estoppel found no place in this case. 
 
 In S. & L. G. R. Co. v. S. & C. R. Co., 45 Cal. 680, it was held 
 that: "If the corporation de facto is in the actual possession of a pub- 
 lic highway, under a grant of a franchise to improve and collect tolls 
 on the same, a mere trespasser can not justify his entry thereon on the 
 ground that it was only a corporation de facto, and was not de jure 
 entitled to the franchises." 
 
 In Williams v. Kokomo B. & L. Association, 89 Ind. 339, one 
 Leach gave to an acting corporation his mortgage on real estate. Sub- 
 sequent to the execution and recording of it he executed another 
 mortgage on the same land to Williamson. In a proceeding to fore- 
 close the junior mortgage, Williamson maintained that the pretended 
 corporation had no legal existence, by reason of defects and omissions 
 in the proceedings to incorporate, and that the senior mortgage was 
 void. He was in no manner estopped, by dealings with, or recog- 
 nition of, the first mortgagee, to deny its corporate existence. The
 
 522 SOCIETY PERUN V. CLEVELAND. 162 
 
 court held that: "A junior mortgagee can not defeat a senior mort- 
 gage by showing that the corporation to which the senior mortgage 
 was executed was defectively organized, if it be a corporation de 
 facto." Elliott, J., said: "Where persons assume to incorporate 
 under the laws of the state, and in part comply with their require- 
 ments, assume corporate functions and transact business as a corpora- 
 tion, private persons can not collaterally question the right of such 
 an association to a corporate existence, although there has not been a 
 full compliance with the provisions of the statute. Baker v. Neff, 73 
 Ind. 68. This rule is not limited to cases where one by contract ad- 
 mits corporate existence, but is a rule of general application."" It is 
 not easy to distinguish the principle of this case from that of the case 
 at bar. 
 
 In Pape v. Capitol Bank, 20 Kan. 440, Pape and wife gave their 
 notes to "James M. Spencer or bearer," and their mortgage on real 
 estate to secure them. Spencer transferred the notes to the Capitol 
 Bank of Topeka, an acting corporation, with this indorsement: 
 "Pay the bearer, without recourse on me, James M. Spencer." The 
 mortgage was also transferred to the bank, which proceeded by suit 
 to collect the notes and foreclose the mortgage. Pape and wife in- 
 terposed the defense that the bank was not, and never had been, a 
 body corporate, by reason, among others, of a defective organization. 
 The bank had assumed corporate functions after an attempt, in good 
 faith, to incorporate, and for a number of years was in the actual and 
 notorious exercise of corporate franchises. Pape had transacted bank- 
 ing business with the plaintiff prior to the purchase of the notes and 
 mortgage, but such business was wholly unconnected with the notes 
 and mortgage in suit. His wife, however, had not in any manner 
 recognized the existence of the bank as a corporate body, and the 
 doctrine of estoppel was not invoked to aid the court in sustaining a 
 judgment of foreclosure against Pape and wife. Brewer, J., says: 
 "The corporation is one de facto, and only the state can inquire, and 
 that in a direct proceeding, whether it be one de jure. * * * 
 There must, in such cases, be a law under which the incorporation 
 can be had; there must also be an attempt, in good faith, on the part 
 of the corporators, to incorporate under such law; arid when, after 
 this, there has been for a series of years, an actual, open and noto- 
 rious exercise, unchallenged by the state, of the powers of a corpora- 
 tion, one who is sued on a note held by such corporation will not be 
 permitted to question the validity of the incorporation as a defense to 
 the action. No mere matters of technical omission in the incorpora- 
 tion, no acts of forfeiture from misuser after the incorporation, are sub- 
 jects of inquiry in such an action. This is not upon the ground of 
 equitable estoppel but upon the grounds of public policy. If the state, 
 which alone can grant the authority to incorporate, remains silent dur- 
 ing the open and notorious assertion and exercise of corporate powers, 
 an individual will not, unless there be some powerful equity on his 
 side, be permitted to raise the inquiry." 
 
 In Thompson v. Candor, 60 111. 244, Willetts, in February, 1858,
 
 1 62 CONDITIONS OF DE FACTO EXISTENCE. 623 
 
 deeded to "Mercer Collegiate Institute," a body pretending to be a 
 corporation, the tract of land in controversy. He died in March, 
 1858. In 1868 his heirs quitclaimed their interest in the land to Thomp- 
 son, who filed a bill in chancery for the cancellation of the deed from 
 Willetts to the "institute," alleging, as one of the grounds of relief, 
 that the named grantee was not legally incorporated, had no capacity 
 to take the title, and that the deed was void. The court held: 
 
 "Where parties endeavor to organize a corporation for educational 
 purposes under the general law, adopt a name, elect trustees, and 
 organize by electing a president and officers, and the trustees had 
 acted for years in managing the property, had leased and mortgaged 
 it, and expended large sums of money in its improvement, these acts 
 constitute it a corporate body de facto, and the regularity of its 
 organization can not be questioned collaterally. Such irregularity 
 can only be questioned by quo -warranto or scire facias. ' ' 
 
 Thornton, J., says: "In 1856 an attempt was made to organize 
 a corporation under the general incorporation law. A corporate 
 name was selected, trustees were appointed, and an organization 
 effected by the election of a president and proper officers. The trust- 
 ees thus appointed acted for years in the general management of the 
 property, leased and mortgaged it, and expended a large sum of 
 money. Here then was a corporate body de facto, which had been 
 engaged in an undertaking involving important interests. The regu- 
 larity of its organization can not be questioned collaterally. Any 
 alleged non-compliance with the law can only be inquired into by the 
 writ of quo warranto or scire facias." 
 
 There is no suggestion throughout the entire case of the rule of 
 estoppel as an element affecting its disposition. 
 
 In Paper Works v. Willett, i Robertson (N. Y. Sup.) 131, it is 
 held that formal defects in proceedings to organize a corporation are 
 not available to defeat an action brought by a corporation for trespass 
 in wrongfully taking property out of its possession. 
 
 See, also, illustrating the principle under discussion : Smith v. 
 Sheeley, 12 Wall. 361 ; Grand Gulf Bank v. Archer, 8 S. & M. 151, 
 173; Dunning v. R. Co., 2 Carter (Ind.) 437; Danneborge Mining 
 Co. v. Aliment, 26 Cal. 286; Searsburg Turnpike Co. v. Cutler, 6 
 Vt. 315; Mitchell v. Deeds, 49 111. 416; Eliz. Academy v. Lindsey, 
 6 Ired. 476; Darst v. Gale, 83 111. 136; Rondell v. Fay, 32 Cal. 354; 
 DeWitt v. Hastings, 40 N. Y. (Superior Court) 463 ; Ricev. R. Co., 
 21 111. 93; Douglas County v. Bolles, 94 U. S. 104; The Banks v. 
 Poitiaux, 3 Randolph (Va.) 136; Goundie v. Northampton Water 
 Co., 7 Pa St. 233; Baker v. Backus, 32 111. 79; Tarbell v. Page, 24 
 111. 46; Thornburg v. R. Co., 14 Ind. 499; Tar River Nav. Co. v. 
 Neal, 3 Hawks, 520; Bear Camp River Co. v. Woodman, 2 Maine 
 404. 
 
 In Jones v. Dana, 24 Barb. 395, it was held that if a company has 
 in form a charter authorizing it to act as a body corporate, and is in 
 fact in the exercise of corporate powers at the time of taking a note 
 from an individual, it is, as to him and all third persons, a corpora
 
 624 SOCIETY PERUN V. CLEVELAND. 1 62 
 
 tion de facto, and the validity of its corporate existence can only be 
 tested by proceedings on behalf of the people. 
 
 In the case at bar the certificate which was last filed by the society 
 embraced a full statement of the objects of incorporation, and indi- 
 cated what the nature of its business must necessarily be, and was 
 strongly suggestive of the manner in which it must necessarily be 
 transacted ; and while it is not our purpose to call in question the ac- 
 tion of this court in the quo ivarranto proceedings, we have no hesi- 
 tation in saying that if we were now called upon to determine whether 
 the corporate life of Society Perun should be taken, the question, 
 upon the facts offered in proof at the trial below, would not be free 
 from doubt and difficulty. It is very clear that the proceedings to in- 
 corporate were colorable ; and so far as this fact is a test of the existence 
 of a corporation de facto, it is most amply established. That there 
 was proof of user is manifest from the evidence, which was received 
 without objection. 
 
 That the judgment of ouster did not and could not have a retroact- 
 ive effect upon the rights of the society, and of parties who have 
 dealt with it during its de facto existence, is suggested by the opinion 
 of Wright, J., in Gaff v. Flesher, 33 Ohio St. 115. 
 
 The evidence which was offered and excluded would, if credited, 
 have shown Society Perun capable of holding and transferring the 
 legal title to the lands in controversy. Walsh v. Barton, 24 Ohio St. 
 43; Darst v. Gale, 83 111. 136; Shewalter v. Pirner, 55 Mo. 218; 
 Nat. Bank v. Matthews, 98 U. S. 628 ; Gotindie v. Northampton 
 Water Co., 7 Pa. St. 233 ; Barrow v. Nashville Turn. Co., 9 Humph. 
 304; Kelly v. People's Trans. Co., 3 Ore. 189; Bogardus v. Trin- 
 ity Church, 4 Sandf. Ch. 758. 
 
 The public and all persons dealing with this society were justified 
 in assuming that the certificate filed with the secretary of state, and 
 by him admitted to record in his office, had been approved by him, 
 and also by the attorney-general, as required by statute (69 Ohio L. 
 150), and that it so far conformed to all legal requirements that, as 
 provided in section 2 of the act of incorporation (69 Ohio L. 83), "a 
 copy, duly certified by the secretary of state, under the great seal of 
 the state of Ohio, shall be evidence of the existence of such associa- 
 tion." 
 
 It would seem that such approval, record and certificate, followed 
 by uninterrupted and unchallenged user for nearly six years, of all of 
 which proof was tendered, would constitute a corporation de facto, if 
 such a body is, under any circumstances, entitled to legal recognition. 
 
 The highest considerations of public policy and fair dealings protest 
 against treating such an organization as a nullity, and all of its trans- 
 actions void. 
 
 The principle of the above cases is to be distinguished from a case 
 where a mere corporation de facto attempts to assert the power of 
 eminent domain by the appropriation of private property to public 
 use. It has been held that the exercise of this right (which is but a 
 delegation of the sovereign power of the state) depends upon the
 
 1 63 DE FACTO EXISTENCE BASED ON PUBLIC POLICY. 625 
 
 sufficiency and legal validity of the certificate of incorporation and 
 public record of its organization. Railroad Co. v. Sullivant, 5 Ohio 
 St. 276; Atkinson v. R. Co., 15 Ohio St. 21. 
 
 The case of Raccoon River Nav. Co. v. Eagle, 29 Ohio St. 238, is 
 relied upon by the defendant in error. It was an action to recover 
 upon a stock subscription. A plea of nul ticl corporation was inter- 
 posed." The plaintiff claimed to be organized under an act to author- 
 ize the incorporation of companies "for the purpose of improving any 
 stream of water * * * declared navigable by any law of the 
 state of Ohio." On the trial the plaintiff offered in evidence a certifi- 
 cate by which it appeared that the company was formed for the pur- 
 pose of improving, etc., Big Raccoon river. Unfortunately there was 
 no navigable stream in Ohio by that name. No other testimony was 
 offered. There was no proof of user. There was no defect in the 
 form of the proceedings to incorporate, but an attempt to organize 
 and incorporate for a purpose impossible of accomplishment. There 
 was neither a de jure nor de facto corporation. Judgment was prop- 
 erly rendered for defendant. 
 
 In excluding proof of what was actually done looking to the incor- 
 poration of Society Perun, and of the subsequent acts of user, which 
 was offered in evidence, there was error, for which the judgment in 
 the first entitled case (as well as that in the same plaintiff against 
 Hay et a/., which was tried with it and involved the same general 
 questions) is reversed. Numerous other questions are presented by 
 the voluminous records in these cases, but as they all depend upon 
 the one central and controlling question discussed above, and as the 
 disposition here made of the cases must lead to a retrial in the light 
 of the principles indicated in this opinion, they are not separately 
 considered. 
 
 Judgment reversed. 
 
 Note. See note at end of Cochran v. Arnold, infra, p. 629. 
 
 Sec. 163. (2) Reasons for not allowing a private party to attack 
 successfully the validity of de facto corporate organization. 
 
 COCHRAN ET AL. v. ARNOLD ET AL. 
 
 1868. IN THE SUPREME COURT OF PENNSYLVANIA. 58 Pa. St. 
 
 Rep. 399-408. 
 
 STRONG, J. * * * The action was assumpsit brought against 
 a large number of persons, charging them as partners in the purchase of 
 cotton alleged to have been sold and delivered. The defendants were 
 
 Argument omitted. Only part of opinion given. 
 40 WIL. CASES.
 
 COCHRAN V. ARNOLD. 163 
 
 stockholders of a company called Conestoga Steam Mills, which 
 claimed to have become a corporation in 1849, ur >d er the general 
 manufacturing law of that year. In 1849 a certificate of association 
 for corporate purposes was made out and recorded. It set forth all 
 that the law required. It was entirely regular on its face. A certified 
 copy of it was filed in the office of the secretary of the commonwealth. 
 Ostensibly, the requirements of the law were fully met. From that 
 time until after the cotton was sold, the corporation had, if not a legal, 
 at least a de facto existence, and it carried on business as such. In 
 November, 1856, the plaintiff sold a quantity of cotton to it and took 
 the promissory notes of the corporation for the price, with a full 
 knowledge of the mode of its constitution, and of what is now alleged 
 to have been a failure to comply with the requisitions of the manu- 
 facturing law for the procurement of a charter. They now sue those 
 who were stockholders of the company at the time the cotton was 
 purchased, and claimed to recover against them individually, upon the 
 ground that the original certificate for incorporation, though appar- 
 ently regular, was illegal and void, because it did not set forth that 
 the capital paid in was at the time invested in mills, machinery and 
 other property adapted to the purposes for which the corporation was 
 proposed to be organized. This they contend renders the charter a 
 nullity, and justifies them in treating the sale as having been made to 
 the defendants as partners. The case rests therefore upon the assump- 
 tion that, because the corporation was so irregularly constituted that 
 the commonwealth might have called in question its legal existence, 
 the plaintiffs may attack it and disprove its lawful being. 
 
 But the assumption is unwarranted. The plaintiffs are not at lib- 
 erty to assert in this action that the corporation was not lawfully 
 formed. Though formed under a general law, it is as against all the 
 world, but the commonwealth, as completely and effectively a corpo- 
 rate body as if it had been created by a special act of assembly and 
 by letters-patent. The act of April 7, 1849, prescribes what shall be 
 the legal proof of the existence of such a corporation. That proof is 
 a certificate of certain things made out as required, recorded in the 
 proper county, with a certified copy of the certificate filed in the office 
 of the secretary of the commonwealth, indorsed by him and then re- 
 tained by the company. The law declares that when the certificate 
 has been thus recorded and filed, the persons who have signed and 
 acknowledged it, and their successors, shall be a body politic and cor- 
 porate, in fact and in law. No distinction is made between the effect 
 of such a mode of incorporation and the effect of any other mode. If 
 the certificate recorded and filed is false, or if the law has in any par- 
 ticular been violated, the commonwealth has a remedy by writ of quo 
 warranto, as it would have in any other case where corporate privi- 
 leges have heen obtained by fraudulent means or in an illegal manner. 
 But until the franchise claimed and used has been directly adjudged 
 not to exist, there is a corporation de facto at least. If there is any- 
 thing settled it is that the corporate existence of a corporation de facto 
 can not be inquired into collaterally. Upon this subject the authorities
 
 1 63 DE FACTO EXISTENCE BASED ON PUBLIC POLICY. 627 
 
 are too numerous to admit of citation. The plaintiffs do not deny 
 the principle as a general rule, but they contend that it is not appli- 
 cable to corporations of this character, to those organized by the cor- 
 porators themselves under a general law, and for support in this 
 position they rely upon Patterson v. Arnold, 9 Wright 410. Such is 
 the doctrine advanced in that case. But the decision then made was 
 that of a bare majority of the court. It does not profess to rest on a 
 single authority. It is sustained by none, for it is in conflict with the 
 steady course of decisions elsewhere, wherever statutes exist similar to 
 ours of 1849. Very little attempt was made to sustain it by reason, 
 and if it is the law it must work great confusion and lead to intoler- 
 able mischiefs. Happily, if it was mistakenly made, we may now 
 correct the mistake without harm to any one. 
 
 There is no reason that can be given for such a distinction as is 
 claimed between a charter obtained under the act of 1849 and one ob- 
 tained under a special act of assembly. In each case corporate power is 
 obtained by act of the corporators, under restrictions imposed by law. 
 When an act authorizes letters-patent to issue after a certificate by 
 commissioners appointed to receive subscriptions to the capital stock 
 that a certain amount has been subscribed, and a certain proportion 
 paid in, the certificate may be false, but nobody ever supposed that 
 the charter obtained by the false certificate is void, or that it may be 
 attacked collaterally. Why, then, should it not be so in case of a 
 charter under the act of 1849? 
 
 How much more is a charter secured under that act the work of the 
 corporators than this one obtained in the other mode ? How much 
 less is the organization under the conduct of the state ? Yet that it is 
 less is the only reason attempted to be given in Patterson v. Arnold 
 why the charter in the one case should be open to collateral attack, 
 and in the other assailable only directly by the commonwealth. 
 
 If we look at the consequences of permitting one who deals with a 
 corporation formed under the general manufacturing law to deny that 
 it ever had any legal existence, or to call in question its rights to ex- 
 ercise corporate powers or enjoy corporate privileges, we shall find 
 them to be no less mischievous than such as would follow the doc- 
 trine that any corporation may be collaterally attacked by one who 
 has given credit to it, that it is not immunity to its shareholders. In- 
 deed, the mischiefs of such a doctrine are the same, whatever may be 
 the mode of obtaining corporate existence. By one jury a charter may 
 be set aside. By another it may be sustained. One creditor may sue 
 the corporation as such, obtain a judgment and sell its land, himself 
 becoming the purchaser. Another creditor may sue the corporators, 
 alleging that their charter is null, furnishing no immunity to them. 
 He may obtain a judgment and sell the same land to another pur- 
 chaser, as the property, not of the corporation, but of the stockhold- 
 ers. In such a case which purchaser would hold the title? 
 
 Again, new stockholders may come in, totally ignorant of any fraud 
 or mistake in making out the certificate. Are they to be charged in- 
 dividually because there was a secret vice in obtaining corporate be-
 
 628 COCHRAN V. ARNOLD. 163 
 
 ing? That would be monstrous. It would render the manufacturing- 
 law a thing to be avoided, though it expresses a cherished policy of 
 the legislature. Yet, if a charter can be shown invalid by a collateral 
 attack at the suit of a creditor, why are not new stockholders who 
 have come in after the birth of the corporation equally liable as part- 
 ners, or joint contractors, with all the original stockholders? Can the 
 charter be effective and yet not effective ? In Patterson v. Arnold it 
 seems to have been thought a charter may be good as to some stock- 
 holders and a nullity as to others. What confusion must this produce ? 
 Some may be sued as partners, and others through the corporation, 
 and under judgments obtained execution be levied upon the same 
 property. Or all the original stockholders may go out and give place 
 to successors. Then that which was incurably vicious, because an 
 usurpation upon the commonwealth, has become good. It is impossi- 
 ble, however, that a charter can be good as to some stockholders and 
 bad as to others. Every one has an interest in the property of his 
 associates invested in the common stock. Such is his corporate right. 
 If that property can be withdrawn by action against his associates in- 
 dividually, the charter ceases to be to him all that it purports to be. 
 
 It is said that those who certify falselv for the purpose of obtaining 
 a charter are guilty of fraud. Doubtless this is so. There is a fraud 
 upon the state. If it be also a fraud upon creditors, the law furnishes 
 a remedy. An action will lie for the fraud. But to deny the corpo- 
 rate existence of a de facto corporation, and to hold as partners those 
 who were guilty of fraud in obtaining the charter, is to confound an 
 action ex contractu with one essentially for a tort. 
 
 It has already been said that Patterson v. Arnold is unsustained by 
 authority. General laws, much like our act of 1849, exist in many of 
 the states, and whenever the question has come up it has been ruled 
 that corporations formed under them, like all others, are to be re- 
 garded as such until their right is questioned by the state. The ques- 
 tion can not be raised collaterally whether they are lawfully such. In 
 Jones v. Dana, 24 Barb. Sup. C. Rep. 402, the court said: "The 
 statute is explicit and leaves no room for construction. It makes the 
 copies of the charter and certificates filed in the office of the county 
 clerk the authority of the corporation to commence business and issue 
 policies, and makes them evidence for and against the company; that 
 is, evidence of the authority to act as a corporation. The legislature 
 having said what acts shall give the company corporate powers, and 
 what shall be the evidence of those acts, as well for as against the 
 company, courts can not, at the instance of third persons, go behind 
 those acts, and the prescribed evidence of them, for the purpose of 
 determining the validity of the corporation, and make the decision, 
 perhaps, depend upon some mistake or accident from which no one 
 has received or can receive any injury." And again: "The only 
 remaining question is, whether the plaintiffs have shown the Utica 
 Insurance Company, acting under a charter, or an authority appar- 
 ently valid, and really so, unless impeached by something outside of 
 the record evidence of the corporate existence, and depending upon
 
 1 63 DE FACTO EXISTENCE BASED ON PUBLIC POLICY. 629 
 
 proof aliunde. If they have, and have thus furnished prima facie 
 evidence of the incorporation, they can not go behind that evidence 
 to show that it was got up in fraud or mistake, or irregularly brought 
 into existence." All this was said in reference to a corporation that 
 came into being under an act very similar to ours. To the same 
 effect is Sedman v. Eveleth, 6 Metcalf 1 14, and Baker v. Backus, 32 
 111. in. I know of no case, except Patterson v. Arnold, in which a 
 different doctrine has been advanced. It was not then competent for 
 the plaintiffs in this action, after having contracted with the Conestoga 
 Steam Mills as a corporation, to deny its corporate existence. To all 
 the stockholders its charter furnished an immunity against its credit- 
 ors. The plaintiffs, therefore, would have had no cause of action 
 against any of the defendants had their amendment been allowed. 
 
 There is another reason why there could have been no recovery. 
 If the certificate for the incorporation was erroneous or fraudulent, 
 the plaintiffs knew it when they sold the cotton. It was not for them 
 afterward to say it was a wrong done to them. It is needless, how- 
 ever, to enlarge upon this. It is enough that they were not at liberty 
 to call in question the validity of the charter. 
 
 The judgment is affirmed. 
 
 Note. De facto corporations : See also, Clopton, J., in Snider's Sons' 
 Oo. v. Troy, 91 Ala. 224, infra, p. 656, and particularly as to de facto corpora- 
 tions, 1847, Brouwer v. Appleby, 1 Sandf. (N. Y. Superior Ct.) 158; 1859, 
 Eaton v. Aspinwall, 19 N. Y. 119; 1862, Buffalo & A. R. Co. v. Gary, 26 N. Y. 
 75; 1872, Swartwout v. R. Co., 24 Mich. 390; 1881, Butchers' & D. Bank v. 
 McDonald, 130 Mass. 264; 1885, People v. La Rue, 67 Cal. 526, 8 Pac. Rep. 84; 
 1886, Stout v. Zulick, 48 N. J. L. 599, 7 Atl. Rep. 362; 1889, Eaton v. Walker, 
 76 Mich. 579, 43 N. W. Rep. 638, 27 A. & E. C. C. 310; 1890, Snider's Sons' 
 Co. v. Troy, 91 Ala. 224, 24 Am. St. Rep. 887, infra, p. 656; 1891, American 
 Salt Co. v. Heidenheimer, 80 Texas 344, 26 Am. St. Rep. 743; 1891, Allen v. 
 Long, 80 Texas 261, 26 Am. St. Rep. 735; 1893, Gibbs' Estate, 157 Pa. St. 59, 
 supra, p. 244; 1894, Martin v. Deetz. 102 Cal. 55, 41 Am. St. Rep. 151, 36 Pac. 
 Rep. 368; 189~4, McTighe v. Macon Const. Co.,94Ga. 306, 47 Am. St. Rep. 153; 
 1894, State Bank Building Co. v. Pierce, 92 Iowa 668; 1895, Coxe v. State, 
 144 N. Y. 396, 39 N. E. Rep. 400; 1895, American Loan and Trust Co. v. 
 Minn. & N. W. R. Co., 157 111. 641 ; 1895, Greenbrier Indus. Ex. v. Squires, 40 
 W. Va. 307, 52 Am. St. Rep. 884; 1895, Jones v. Hardware Co., 21 Colo. 263, 
 52 Am. St. Rep. 220, 29 L. R. A. 143, infra, p. 637; 1896, Bradley v. Reppell, 
 133 Mo. 545, 54 Am. St. Rep. 685, infra, p. 868; 1895, American Mirror Co. v. 
 Bulkley, 107 Mich. 447; 1896, Tuckasegee Mining Co. v. Goodhue, 118 N. C. 
 981; 1896, Duke v. Taylor, 37 Fla. 64,53 Am. St. Rep. 232; 1897, Martin v. 
 South Salem Land Co.. 94 Va. 28, 26 S. E. Rep. 591 ; 1897, Continental Trust 
 Co. v. T.,St. L. & K. R. Co. (C. C. N. D. Ohio), 82 Fed. Rep. 642 ; 1897, Johnson 
 v. Okerstrom, 70 Minn. 303, 73 N. W. Rep. 147; 1898, Maryland Tube and Iron 
 Works v.West End Imp. Co., 87 Md. 207, 39 L. R. A. 810; 1898, Jones v. Hale, 32 
 Ore. 465, 8 Am. & E. C. C. (N. S.) 150; 1899, Calkins v. Bump, 120 Mich. 335, 
 79 N. W. Rep. 491 ; 1899, Marsh v. Mathias, 19 Utah 350, 56 Pac. Rep. 1074; 
 
 1899, City of Wilmington v. Addicks, Del. , 43 Atl. Rep. 297; 1899, 
 
 Christian & Craft Grocery Co. v. Fruitdale Lumber Co., 121 Ala. 340, 25 So. 
 Rep. 566; 1899, Commonwealth v. Yetter, 190 Pa. St. 488. See, also, infra, 
 pp. 1122-1130, on necessity of pleading and proving corporate existence, in 
 suits by and against a corporation. 
 
 There is great confusion among the cases as to the doctrines concerning 
 de facto corporate existence, and estoppel to deny corporate existence; many 
 sases call an apparent corporation ade facto corporation, when there is no suf-
 
 630 COCHRAN V. ARNOLD. 164 
 
 ficient reason for so designating it, bat abundant reason for holding the per- 
 son who questioned the existence of the corporation estopped from doing so. 
 On the other hand, many cases are decided on grounds of estoppel, when, in 
 fact, there are sufficient reasons for holding the corporation to be a de facto 
 one, and hence, there is no necessity of invoking the doctrine of estoppel. 
 Much of the confusion undoubtedly arises also from the variety of opinion as 
 to the necessity of pleading and proving corporate existence in suits by or 
 against corporations. See infra, pp. 1122-1130. For example, in Williams v. 
 Bank, 7 Wend. (N. Y.) 539 (1831), it is said "A contract made with a corpo- 
 ration by name is not an admission or any evidence that the corporation is en- 
 titled to sue by that name." And again, in Welland Canal Co. v. Hathaway, 
 8 Wend. (N. Y.) 480, 24 Am. Dec. 51 (1832), it is said : "When a corporation 
 sues, if they have not the powers and privileges assumed * * * it is their 
 own fault, not his. Whether they had * * * or not must be known to 
 themselves, not to the defendant, and no act of his could legally add to or 
 detract from them. Why, then, should he be estopped from denying their 
 corporate capacity, or they be excused from establishing it by legal evidence, 
 when they are endeavoring to enforce their rights in a manner and before a 
 tribunal which can entertain their suit only on proof or assumption that they 
 are a corporate body, duly constituted by competent authority?" So, too, in 
 Maryland Tube and Iron Works v. West End Improvement Co., 87 Md. 207. 
 39 L. R. A. 810 (1898), where the question was as to whether there was cause 
 for estoppel before the franchise tax was paid, it was said that the doctrine of 
 estoppel can not be invoked unless the corporation has at least a de facto existence. 
 A similar holding was made in Jones v. Hardware Co.. 21 Colo. 263, infra, 
 p. 637, and Duke v. Taylor, 37 Fla. 64, but it is submitted that the foregoing 
 views are not according to the weight of authority. On the contrary: "A 
 corporation de facto may legally do and perform every act and thing which the 
 same entity could do or perform were it a de jure corporation. As to all the 
 world, except the paramount authority under which it acts and from which it 
 receives its charter, it occupies the same position as though in all respects 
 valid, and even as against the state, except in direct proceedings to arrest its 
 usurpation of power, its acts are binding." People v. La Rue, 67 Cal. 526 
 (1885). Even the state in a quo icarranto to test the right to a corporate office 
 can not question the corporate existence. Commonwealth v. Yetter, 190 Pa. 
 St. 488 (1899). See, also, Beach, 13, 14, 16; Clark, 41,42; Cook, 183- 
 186, 231-235, 637; Elliott, 69-80; Morawetz, 735-778; Taylor, 145-157; 
 I Thompson, 495-513; VII Thompson, 8212. 
 
 ARTICLE VI. CONDITIONS OF CORPORATE EXISTENCE BY ESTOPPEL. 
 
 Sec. 164. (A) Theories: 
 
 "An examination of the cases in which the doctrine of estoppel to 
 deny corporate existence has been applied will show that most of them 
 rest on some basis of conduct, or of benefit obtained, or other cause 
 rendering it inequitable to allow such denial. The doctrine is an 
 equitable one, and should be applied only where there are equitable 
 grounds for applying it. It should never be applied where it would 
 be inequitable to do so. Nor should it be applied unless it would be 
 inequitable not to do so." Clark on Corps., 43, p. 103. 
 
 ( i ) The doctrine is one of equity.
 
 164 CORPORATIONS BY ESTOPPEL. 631 
 
 p 
 
 (#) Will be applied where it would be inequitable not to 
 apply it. 
 
 ESTEY MANUFACTURING COMPANY v. RUNNELS. 1 
 1884. IN THE SUPREME COURT OF MICHIGAN. 55 Mich. Rep. 
 
 CHAMPLIN, J. This action was commenced before a circuit court 
 commissioner to recover the possession of certain land described in 
 the complaint, and averring that the defendant holds the same unlaw- 
 fully and against the rights of the Estey Manufacturing Company. 
 December 3, 1883, was the return day, when the defendant appeared 
 and pleaded not guilty. The cause was then tried and judgment 
 rendered in favor of the plaintiff; and on the 8th day of December, 
 1883, the defendant appealed the suit to the circuit court for the county 
 of Shiawassee. The cause was tried in the circuit, April 3, 1884, 
 when the plaintiff again had a verdict, whereupon the defendant brings 
 the suit to this court by writ of error. * * * 
 
 Defendant also introduced and read in evidence a duly certified 
 copy of the articles of association of the plaintiff corporation, from 
 which it appeared that there were but three corporators, two of whom 
 resided in Michigan and one in Vermont. The acknowledgment of 
 Jacob W. Este}' was taken before a person styling himself a notary 
 public, but his official character and authority to take acknowledg- 
 ments was not authenticated in accordance with the requirements of 
 our statutes, The defendant's counsel requested the court to charge 
 the jury as follows: * * * 
 
 ''Fourth. That the articles of association filed in said cause and 
 read therein are void under the law." * * * 
 
 The third and fourth requests refer to the same point, and may be 
 considered together. Where a body assumes to be a corporation and 
 acts under a particular name, a third party dealing with it under such 
 assumed name is estopped to deny its corporate existence. Such is the 
 general rule, founded upon equitable principles, and if any exceptions 
 exist, it is only where "there are no facts which make it legally unjust 
 to forbid its denial." Doyle v. Mizner, 42 Mich. 337. In this case 
 the defendant introduced in evidence the execution upon which the 
 sale was made. From this it appears that it was issued upon a judg- 
 ment rendered for damages for the non-performance of certain prom- 
 ises and undertakings made by this defendant to the Estey Manufac- 
 turing Company, which shows that the defendant had had dealings 
 with the plaintiff as a corporation in the name assumed by it. He 
 was therefore estopped, not only by having dealt with it as a corpora- 
 tion, but by the judgment in the case, to deny its corporate existence. 
 The execution, sale and sheriff's deeds all result from the contract 
 relation voluntarily entered into between the defendant and this cor- 
 porate body, and it would be manifestly unjust and inequitable to 
 
 1 Arguments omitted. Only part of opinion relating to the one point given.
 
 632 DOYLE V. MIZNER. 165 
 
 permit the defendant to question the legal corporate existence of the 
 plaintiff in this collateral proceeding. 
 
 For these reasons the requests were properly refused, and the judg- 
 ment is affirmed. 
 
 The other justices concurred. 
 
 Note. See note at the end of this article, on extent of doctrine. 
 
 Sec. 165. Same. 
 
 (<) Will be applied only where it is equitable to do so. 
 DOYLE v. MIZNER, GRAY AND KANE. 1 
 
 1879. IN THE SUPREME COURT OF MICHIGAN. 42 Mich. Rep. 
 
 33 2 -34 i- 
 
 Error to superior court of Detroit. Trover. Plaintiff brings error. 
 
 CAMPBELL, C. J. Doyle brought suit to recover for the forcible 
 removal and disposal of certain goods claimed to be his property, and 
 taken from his possession by defendant Kane under color of a chattel 
 mortgage purporting to be made by Mizner and Gray, as president 
 and secretary of the Detroit Chemical Works. * * * 
 
 January 27, 1875, an agreement was signed by Doyle, Mizner and 
 Gray to organize a joint-stock company, to be known as the Detroit 
 Chemical Works, with a capital of $50,000, in 2,000 shares of $25 
 each. The paid-in capital was fixed at $14,000; the estimated assets 
 of the Detroit Manufacturing Company, of which $10,000 as~paid-up 
 stock was to go to Doyle, and $2,000 each to Gray and Mizner, who 
 were therein stated to have purchased that interest. But there is noth- 
 ing to indicate that they gave or were to give any consideration. The 
 remaining $36,000 was to be sold for working capital, after allowing 
 Doyle $4,000 to be sold for Doyle's benefit in payment for certain 
 claims sold to the company, and for which he was to turn in $4,000 
 of his stock. The first $500 raised was to go towards paying the 
 chattel mortgage. Without some further showing it would seem that 
 under this arrangement Doyle furnished the entire original capital, and 
 Gray and Mizner got their share out of him for nothing. * * * 
 
 On the nth of February, 1875, a transfer in writing was signed 
 by the three parties of all the property of the Detroit Manufacturing 
 Company to the chemical works for the expressed consideration of 
 $14,000, "subject to a claim of about $500, held by Kane & Hibbard 
 (or their client), of Detroit, Mich." * * * 
 
 Doyle's ground of action is based on the claim that he never trans- 
 ferred his rights to any one, and that the paper in question was not to 
 become operative until he received consideration by payment for his 
 goods. His testimony, if believed, shows that the paper was never 
 delivered in such a way as to belong to the Detroit Chemical Works 
 or to pass any title until paid for. 
 
 1 Arguments omitted. Only part of opinion given.
 
 1 65 CORPORATIONS BY ESTOPPEL. 633 
 
 It is claimed for the defense that Doyle, having dealt with it and 
 acted with Gray and Mizner, is estopped from denying its corporate 
 existence. There are certainly many cases in "which a recognition 
 of corporate existence by dealing with the corporation, 'will estop 
 from questioning it. But this doctrine rests on the ground that 
 such action creates relations and encourages conduct -which there 
 may be difficulty in undoing. In ordinary cases such recognitions 
 have been considered as binding. 
 
 But this rule is one originating in equitable principles, and can 
 not be applied universally . There -would be no sense in applying it 
 'where no new rights have intervened, and -where such recognition 
 has itself been brought about by fraudulent dealings carried on for 
 the very purpose of entrapping a party into the action on 'which 
 such recognition rested. If there -was no corporation in fact, and 
 if there are no facts -which make it legally unjust to forbid its de- 
 nial, it is difficult to understand -what room there is for an estoppel. 
 And inasmuch as facts were asserted by plaintiff tending to show 
 good reasons why he should not be estopped, and that testimony was 
 open to the jury, the rulings upon the proof of corporate existence 
 are fairly open to review. 
 
 The incorporation was sought to be shown by asking Doyle on 
 cross-examination concerning the signing of the paper purporting to 
 be articles of incorporation, which had been filed in the Detroit city 
 clerk's office, April 6, 1875. This paper was not acknowledged, and 
 was not filed in the county clerk's office. A copy of the same paper 
 was certified by the secretary of state ; but his certificate did not give 
 a copy of any acknowledgment, but merely said the paper was ac- 
 companied by an acknowledgment in the usual form. The original 
 paper had an unsigned certificate of acknowledgment. 
 
 Under our present constitution no charters can be granted, and all 
 private corporations must be organized under general laws, and can 
 only be valid when strictly conforming to all the conditions imposed 
 upon their completion. The statute concerning manufacturing cor- 
 porations expressly requires that the articles shall be "acknowledged 
 before some person authorized by the laws of this state to take ac- 
 knowledgments of deeds." Comp. L., 2839. 
 
 There was, therefore, no incorporation shown, and, therefore, for 
 the purposes of this case, none exists as a matter of fact. The only 
 way in which, under these circumstances, any question of corporate 
 action could arise would be by way of estoppel. And it is important 
 to see how far relations existed which might create it, and whether 
 any one shows a right to rely on it. 
 
 By the contract of January 27, 1875, Doyle agreed to transfer his 
 assets to the company as soon as it should become incorporated. The 
 whole consideration of that agreement rested on the creation of stock, 
 which was to be in part apportioned and in part sold as agreed. Noth- 
 ing but the stock of such a nature as to be lawfully tnmslVrnMe as 
 such could satisfy the agreement. And until provision was made 
 which secured this no consideration existed for the transfer, and there
 
 634 SNYDER V. STUDEBAKER. 166 
 
 was no promise to make it. This becomes material in another point 
 of view, which will be referred to presently. 
 
 To what extent, if any, the action of those parties on the assump- 
 tion there was a corporation would estop them as against third par- 
 ties dealing with them, can only be decided when such cases arise. 
 As between themselves there can be no such estoppel where Mizner 
 and Gray are not injured by any honest reliance on Doyle 's action to 
 their prejudice. Each of them knew what was done, and was bound 
 in law to know there was no incorporation. If a mistake of law 
 would exonerate them from this rule, it would also exonerate Doyle, 
 and would still bind him by no estoppel extending beyond such results 
 as came from an honest reliance on his acts. They could claim no 
 interest in his property for which no consideration passed, and they 
 could claim no rights against him except to the extent of their damage 
 by a justifiable reliance on what had been done to their prejudice by 
 his procurement or encouragement. 
 
 If it was understood the bill of sale was not to take immediate 
 effect, then no title could pass to the concern either corporation or un- 
 incorporated. And, as already seen, there was no state of things 
 which formed any legal consideration for the transfer under the agree- 
 ment of January, 1875. We think the court erred in connecting the 
 transfer with that agreement, if there was no actual incorporation. 
 In the absence of an actual incorporation the transfer must be regarded 
 as a new and distinct arrangement, resting on its own consideration. 
 It could not be valid unless delivered, and where the same persons 
 are grantors and representatives of the grantees, there must be dis- 
 tinct evidence that it was intended to be operative, which its signa- 
 ture alone would not give. And if there was no corporate existence, 
 not only does the consideration of the transfer expressed on its face 
 utterly fail, but the further difficulty arises that there is absolute iden- 
 tity between grantors and grantees, with nothing to distinguish it from 
 any other grant of a party to himself. From such a document no new 
 rights could arise as between the parties. * * * 
 
 Reversed. 
 
 Sec. 166. 
 
 (2) Estoppel arises on matter of fact only, and not of law. 
 
 SNYDER v. STUDEBAKER. 
 1862. IN THE SUPREME COURT OF INDIANA. 19 Ind. Rep. 462-466. 
 
 Appeal from the Wells Circuit Court. 
 
 WORDEN, J. This was an action by Snyder against Studebaker 
 to recover possession of a certain tract of land. Judgment for the 
 defendant. 
 
 The same question is presented by the pleadings and the evidence. 
 
 It appears that, in March, 1853, the plaintiff, who was then the
 
 1 66 CORPORATIONS BY ESTOPPEL. 63$ 
 
 owner of the land, conveyed the same to the Fort Wayne and South- 
 ern Railroad Company, by deed, duly executed and delivered. 
 
 This conveyance was made on account of a stock subscription. 
 
 Afterward, in November, 1855, the railroad company, for a valua- 
 ble consideration, conveyed the premises to the defendant. 
 
 The Fort Wayne and Southern Railroad Company was chartered 
 by act of the legislature, passed in 1849; and it appears that the cor- 
 porators named in the act in question met in the town of Bluffton, in 
 said county of Wells, on the i9th day of November, 1851, and then 
 and there accepted the act of incorporation, and organized the com- 
 pany pursuant to the provisions of said act. 
 
 If the corporation was not created before the ist of November, 
 1851, when the new constitution took effect, it could have no existence 
 at all, as that instrument prohibits the creation of corporations other 
 than banking, by special act. The State v. Dawson, 16 Ind. 40. 
 Harriman v. Southam, 16 Ind. 190. 
 
 The plaintiff claims that, inasmuch as there was no acceptance of 
 the charter, or organization under it, until after the adoption of the 
 constitution of 1851, there was no such corporation as The Fort Wayne 
 and Southern Railroad Company at the time he executed the convey- 
 ance, and, hence, that no title passed from him. But is he in a con- 
 dition to dispute the existence of the corporation at the time he made 
 his conveyance to it? 
 
 It has been held, in numerous cases in this state, that a party ivho 
 has contracted with a corporation, as such, is, as a general proposi- 
 tion, estopped by his contract to dispute the existence of the corpora- 
 tion at the time of the contract. The following cases may be cited, 
 though there are, perhaps, others reported and some not reported as 
 yet: Judah v. The American Live Stock Insurance Company, 4 Ind. 
 333 ; The Brookville and Greensburg Turnpike Company v. McCarty, 
 8 Ind. 392 ; Ensey v. The Cleveland and St. Louis Railroad Com- 
 pany, 10 Ind. 178; Fort Wayne and Bluffton Turnpike Company v. 
 Deam, 10 Ind. 563; Jones v. The Cincinnati Type Foundry Com- 
 pany, 14 Ind. 89; Hubbard v. Chappell, 14 Ind. 601 ; The Evans- 
 ville, etc., Railroad Company v. The City of Evansville, 15 Ind. 
 395; Meikel v. The German Savings Fund Society, 16 Ind. 181 ; 
 Heaston v. The Cincinnati and Fort Wayne Railroad Company, 16 
 Ind. 275. 
 
 The doctrine is by no means confined to the state, but prevails 
 elsewhere. The Dutchess Cotton Manufactory v. Davis, 14 Johns. 
 238; All Saints' Church v. Lovett, i Hall 191 ; Palmer v. Lawrence, 
 3 Sand. Sup. C. R. 161 ; Eaton v. Aspinwall, 6 Duer 176; Jones 
 y. Bank of Tennessee, 8 B. Mon. 122; Worcester Medical Institu- 
 tion v. Harding, n Cush. 285; The Congregational Society v. Perry, 
 6 N. H. 164; People's Savings Bank, etc., v. Collins, 27 Conn. 142; 
 West Winsted Savings Bank v. Ford, 27 Conn. 282; Angell and 
 Ames on Corp., 94. 
 
 The estoppel arises upon matter of fact only, and not upon nniitcr 
 of law. Hence, if there be no law which authorized the supposed
 
 636 SNYDER V. STUDEBAKER. 1 66 
 
 corporation, or if the statute authorizing it be unconstitutional and 
 void, the contract does not estop the party making it to dispute the 
 existence of the corporation. But if, on the other hand, there be a 
 laiu -which authorized the corporation, then, -whether the corporators 
 have complied with it, so as to become duly incorporated, is a ques- 
 tion of fact, and the party making the contract is estopped to dispute 
 the organization or the legal existence of the corporation. This prop- 
 osition is substantially stated in the cases of Jones v. The Cincinnati 
 Type Foundry Company, Meikel v. The German Savings Fund 
 Society, and Heaston v. The Cincinnati and Fort Wayne Railroad 
 Company, supra, 
 
 Let us apply the doctrine to the case before us. The corpo- 
 rators named in the act to establish the Fort Wayne and Southern 
 Railroad Company had a right, at any time before the offer of the 
 franchises was withdrawn, that is, before the constitution of 1851 was 
 adopted, to accept the charter, and organize under it. If they did so 
 accept the charter, and organize, the corporation was legitimately 
 created, and the new constitution did not destroy it. 
 
 Whether they did so accept the charter, and organize, was a question 
 of fact, and the plaintiff, by his conveyance, is estopped to deny such 
 acceptance and organization. 
 
 That the corporators accepted the charter, and organized under it, 
 within the time when it was competent to do so, was as fully admitted 
 by the contract as was any other step necessary to an organization. 
 
 The conclusion necessarily follows that the plaintiff is estopped to 
 dispute the existence of the corporation at the time of his conveyance 
 to it. 
 
 This point was ruled the other way in the case of Harriman v. 
 Southam, 16 Ind. 190; but, upon more mature reflection, we are satis- 
 fied that the decision upon this point was wrong, and should be over- 
 ruled. 
 
 We may remark, also, that the doctrine of estoppel was erroneously 
 applied in the case of The Evansville, etc., Railroad Co. v. The City 
 of Evansville, 15 Ind. 395. There the point made was that the law 
 under which the corporation was organized was unconstitutional and 
 void. A party, we have seen, does not, by his contract, estop him- 
 self to deny that there is any law, or any valid law, by which the cor- 
 poration was authorized. 
 
 Some further observation, in respect to the case before us, will not 
 be out of place. The doctrine of estoppel, as applied to the case, 
 does not rest upon a mere technical rule of law. It has its foundation 
 in the clearest equity, and the principles of natural justice. The doc- 
 trine of estoppel in pais is of comparatively recent growth, but is 
 firmly and clearly established. "The recent decisions of the courts, 
 both in this country and in England, appear to have given a much 
 broader sweep to the doctrine of estoppel in pais than that which 
 formerly existed, and to have established that, in all cases -where an 
 act is done, or a statement made, by a party, the truth or efficacy of 
 which it would be a fraud on his part to controvert or impair, there
 
 l6/ CORPORATIONS BY ESTOPPKL. 637 
 
 the character of an estoppel -will be given to -what wou/d otherwise be 
 mere matter of evidence, and it -will, therefore, become binding upon 
 a jury, even in the presence of proof of a contrary nature," 2 
 Smith Lead. Cas., p. 531, i Am. ed. See, also, upon this subject, 
 Kinney v. Farnsworth, 17 Conn. 355; Middleton Bank v. Jerome, 18 
 Conn. 443 ; Laney v. Laney, 4 Ind. 149. In Doe ex dem. Richard- 
 son v. Baldwin, i Zabriskie, 397, it was said that "The doctrine of 
 estoppel rests upon the principle, that when one has done an act, or 
 made a statement, which it would be a fraud, on his part, to contro- 
 vert or impair, and such act or statement has so influenced any one 
 that it has been acted upon, the party making it will be cut off from 
 the power of retraction. It must appear, \. That he has done some 
 act, or made some admission inconsistent with his claim; 2. That 
 the other party has acted upon such conduct or admission; 3. That 
 such party will be injured by allowing the conduct or admission to be 
 withdrawn" Here the plaintiff, by his conveyance to the corpora- 
 tion, admitted that it had an existence, and could receive the title. 
 Upon this act and admission of the plaintiff the defendant has acted 
 in purchasing the land of the company. If the plaintiff had not con- 
 veyed to the corporation, the defendant would not have purchased from 
 it. The law will not now permit the plaintiff to withdraw the admission 
 made by him in conveying to the corporation and deprive the defend- 
 ant of the land which he purchased on the faith of such admission. 
 In our opinion the judgment below is right, and must be affirmed. 
 Per Curiam. The judgment is affirmed, with costs. 
 
 Note. See following cases, and those cited to Cochran v. Arnold, supra, 
 p. 629. 
 
 Sec. 167. 
 
 (3) Estoppel applies only in cases where there is at least a de 
 facto existence. 
 
 JONES v. THE ASPEN HARDWARE COMPANY. 
 
 1895. I N THE SUPREME COURT OF COLORADO. 21 Colo. Rep. 
 263-271, 52 Am. St. Rep. 220. 
 
 The Aspen Hardware Company instituted this suit in the court be- 
 low for the purpose of recovering a stock of goods seized by the United 
 States marshal under a writ of attachment issued out of the circuit 
 court of the United States at the suit of Joseph A. Thatcher, plaintiff, 
 against one A. B. Eads. The only question in the case has reference 
 to the corporate capacity of defendant in error, it not having filed, 
 prior to the attachment levy, its certificate of incorporation with the 
 secretary of state, as required by the statute. Session Laws of 1887, 
 p. 406. In the district court judgment was entered in favor of the 
 company. The statute reads as follows: 
 
 "Every corporation, joint-stock company or association incorporated
 
 638 JONES V. THE ASPEN HARDWARE CO. 167 
 
 by or under any general or special law of this state, or by or under 
 any general or special law of any foreign state or kingdom, or of any 
 state or territory of the United States beyond the limits of this state, 
 having capital stock divided into shares, shall pay to the secretary of 
 state for the use of the state a fee of ten dollars, in case the capital 
 stock which said corporation, joint-stock company or association, is 
 authorized to have, does not exceed one hundred thousand dollars; 
 but, in case the capital stock thereof is in excess of one hundred thou- 
 sand dollars, the secretary of state shall collect the further sum of ten 
 (10) cents on each and every thousand dollars of such excess, and a 
 like fee of ten cents on each thousand of the amount of each subse- 
 quent increase of stock. The said fee shall be due and payable upon the 
 filing of the certificate of incorporation, articles of association or char- 
 ter of said corporation, joint-stock company or association, in the office 
 of the secretary of state; and no such corporation, joint-stock com- 
 pany or association shall have or exercise any corporate powers or be 
 permitted to do business in this state until the said fee shall have been 
 paid ; and the secretary of state shall not file any certificate of incor- 
 poration, articles of association, charter or certificate of the increase 
 of capital stock, or certify or give any certificate to any such corpora- 
 tion, joint-stock company or association, until said fee shall have been 
 paid to him. But this act shall not apply to corporations not for 
 pecuniary profit, or corporations organized for religious, educational 
 or benevolent purposes." Section i, Acts of 1887, p. 406. 
 
 CHIEF JUSTICE HAYT delivered the opinion of the court. 
 
 In November, A. D. 1889, Shepard & Bowles, as co-partners, were 
 doing a general hardware business in the city of Aspen, and, during 
 that month made a sale of their business, stock in trade, good-will, 
 etc., to A. B. Eads, the consideration for this transfer being certain 
 real estate and the assumption of certain indebtedness of the firm of 
 Shepard & Bowles. Eads being unable to comply with the terms of the 
 agreement, a new arrangement was made between the parties, and an 
 organization known as the Aspen Hardware Company was formed by 
 Bowles, Eads and one Kettler. The articles of incorporation pro- 
 vided that the affairs of the company should be managed by a board 
 of three directors, naming Bowles, Eads and Kettler as such directors 
 for the first year. It was the evident intention of the parties that the 
 company should be duly and legally incorporated, and to this end they 
 caused to be executed articles of incorporation on the; i6th day of 
 November, 1889, in due form, and immediately filed the same with 
 the clerk and recorder of Pitkin county. For some reasons not ex- 
 plained by the evidence, the articles were not filed in the office of the 
 secretary of state until after the levy of the writ of attachment here- 
 inafter referred to, and not until the day upon which this suit in re- 
 plevin was instituted, but whether before or after the commencement 
 of this action dots not clearly appear from the evidence. 
 
 After the articles were filed with the county clerk, the board of 
 directors held a meeting, elected officers, caused capital stock to be 
 issued, etc., Eads being present and participating in this meeting, at
 
 l6/ CORPORATIONS BY ESTOPPEL. 639 
 
 which Bowles was elected president, Eads vice-president, and Kettler 
 secretaiy and treasurer. Thereupon, Eads, for a valuable considera- 
 tion, sold and transferred the property to the new organization,' and 
 Mr. Bowles, from that time forward, conducted the business for the 
 Aspen Hardware Company, selling goods and purchasing new goods 
 in the corporate name. Eads, soon after the sale, left the town of 
 Aspen and did not return, nor personally take part in the business at 
 that point, but continued as a director and vice-president of the com- 
 pany, and retained a portion of his stock, although he had sold a part 
 of it prior to the levy of the writ of attachment. 
 
 The business was thus continued until July 31, 1890, when a suit 
 was commenced by Thatcher, plaintiff, against A. B. Eads, and the 
 property in question levied upon as the property of the defendant in 
 that suit, and this action of replevin was immediately instituted to re- 
 cover possession of the property, or its value. 
 
 The controversy in this case is narrowed to the single question of 
 the capacity of defendant in error to take title to the property in con- 
 troversy as a corporation at the time of the attempted transfer by 
 Eads, it not having at that time filed its articles of incorporation with 
 the secretary of state, or paid the fee for such a filing, as provided by 
 the statute of 1887, p. 406. 
 
 This is the first time the effect of this statute has been before this 
 court for consideration, although in Edwards v. D. & R. G. R. Co., 
 13 Colo. 59, the constitutionality of a somewhat similar act was under 
 review. That act was attacked upon several grounds, among which 
 was that it was void because the subject was not clearly expressed in 
 the title, the title being "An act to provide for the formation of cor- 
 porations," and it was held that this title was sufficient to cover legis- 
 lation requiring a fee to be paid for filing the certificate of incorpora- 
 tion, under, the principle that the same was germane to the general 
 subject expressed in the title, and that legislation fixing the amount of 
 such fee, time of payment, etc., was not obnoxious to the constitu- 
 tional provision with reference to titles. The act of 1887, now under 
 consideration, is entitled "An act to fix the fees to be collected by the 
 secretary of state for incorporation and certain other privileges." The 
 body of the act, however, relates entirely to the fee to be charged and 
 collected for filing certificates of incorporation, articles of association, 
 charters, or increase of capital stock of joint-stock companies, and in 
 addition thereto provides that no such corporation, joint-stock company 
 or association ''shall have or exercise any corporate powers or be per- 
 mitted to do any business in this state until the said fee shall have 
 been paid." * * * This provision is so closely allied to the gen- 
 eral subject, which is the fixing of fees for filing certificates of incor- 
 poration, etc., that under the uniform rule of decisions in this state it 
 must be held to be a proper matter for legislation under the title se- 
 lected. Golden Canal Co. v. Bright, 8 Colo. 144; People, ex reL 
 Thomas, v. Goddard, 8 Colo. 432 ; People, exreL Thomas, v. Scott, 9 
 Colo. 422; Dallas v. Redman, 10 Colo. 297; Edwards v. D. & R. 
 'r. R., supra; In re, Pratt, 19 Colo. 138.
 
 640 JONES V. THE ASPEN HARDWARE CO. 167 
 
 In this case the Aspen Hardware Company claims title to the prop- 
 erty in dispute in its corporate capacity and not as a co-partnership. 
 It is 'admitted that the fee for filing the certificate of incorporation 
 with the secretary of state was not paid prior to the levy of the writ 
 of attachment, and that the certificate was not filed in the office of the 
 secretary of state until about the time of the bringing of the present 
 action, the evidence leaving the exact time uncertain. 
 
 It is to be remembered that in this case the corporation is the party 
 plaintiff, and it may be stated, as a general rule, that when a com- 
 pany relies on its corporate capacity it assumes the burden of estab- 
 lishing such capacity. 
 
 The language of the act is plain and unambiguous. It reads: 
 "No such corporation * * * shall have or exercise any corporate 
 powers *." 
 
 The taking of title to property was certainly the exercise of a cor- 
 porate power, and as such prohibited by the express terms of the 
 statute. This is not controverted by counsel for appellee, but it is 
 contended that Eads, having assisted in the organization of the cor- 
 poration, and having sold to it the hardware stock, is estopped from 
 denying the corporate existence of the company, and that the attach- 
 ing creditor took the property subject to the same estoppel. 
 
 The doctrine of estoppel can not be successfully invoked, ive think, 
 unless the corporation has at least a de facto existence. The rule is 
 stated as follows by Morawetz on Private Corporations, 750, it hav- 
 ing been first announced in the case of Brouwer v. Appleby, i Sandf. 
 158: "A defendant who has contracted with a corporation dc facto 
 is never permitted to allege any defect in its organization as affecting 
 its capacity to contract or sue, but that all such objections, if valid, 
 are only available on behalf of the sovereign power of the state." 
 
 It is also well settled that to constitute a de facto corporation there 
 must be either a charter or a law authorizing the creation of such a 
 corporation, with an attempt in good faith to comply with its terms, 
 and also a user or attempt to exercise corporate powers under it. Dug- 
 gan v. The Colorado Mortgage and Investment Co.. n Colo. 113; 
 Bates et al. v. Wilson et al., 14 Colo. 140. 
 
 A de facto corporation can never be recognized in violation of a 
 positive law. This principle, which seems to be supported by all the 
 authorities, is thus stated in Morawetz on Private Corporations, 758: 
 "If the formation of a corporate association is not only prohibited by 
 this general rule of the common law, but is also in violation of some 
 principle of morality or public policy, or a positive statutory pro- 
 hibition, the parties forming such association will not be legally bound 
 by their agreement of membership, and the courts will not recognize 
 the association, either as among its members or against third parties." 
 To recognize the defendant as a de facto corporation would, as we 
 have seen, be in direct conflict with the express language of the act, 
 which declares that without the payment of the fee the corporation 
 shall have no corporate power. 
 
 One object of this statute is to restrict the organization of "wild-
 
 1 6/ CORPORATIONS BY ESTOPPEL. 64! 
 
 cat" corporations, it being supposed that the increased fee required 
 by the act would, in a measure, at least, prevent the overcapitalization 
 of companies. The legislature being of the opinion that this purpose 
 would be advanced by requiring the fee to be paid as a condition pre- 
 cedent to the exercise of any corporate power, it is the duty of the 
 courts to give effect to this intent as the same is manifest from the 
 plain language of the act. 
 
 The taking of title to the property in controversy being the exercise 
 of a corporate power, and, as such, forbidden until the fee for filing 
 has been paid, it follows that the title of The Aspen Hardware Com- 
 pany as a corporation can not be upheld. Having failed to comply 
 'with the statute, The Aspen Hard-Mare Company at the time of the 
 transfer was neither a de jure nor a de facto corporation, but simply 
 a voluntary association of individuals in the nature of a co-partner- 
 ship. 
 
 There is a broad distinction between those acts made necessary by 
 the statute as a prerequisite to the exercise of corporate powers and 
 those acts required of individuals seeking incorporation, but not made 
 prerequisites to the exercise of such powers. 
 
 "In respect to the former, any material omission will be fatal to 
 the existence of the corporation, and may be taken advantage of col- 
 laterally, in any form in which the fact of incorporation can properly 
 be called in question. In respect to the latter, the incorporation is 
 responsible only tathe government in a direct proceeding to forfeit 
 the charter." Abbott v. Omaha Smelting and Refining Company, 4 
 Neb. 416. The omission in this case is of acts of the former class, 
 and consequently there was no corporation in esse at the time of the 
 levy of the writ, while the evidence leaves it in doubt if this omission 
 had been supplied prior to the- institution of the present action. 
 
 But although it could not at the time exercise any corporate power\ 
 this did not prevent The Aspen Hardware Company from taking title 
 to the property as a co-partnership. In other -words, under the con- 
 ceded facts, the company was not at the time a corporation, but this 
 will not preclude it from maintaining the action as a co-partnership. 
 The plaintiff sues as The Aspen Hard-ware Company, and the facts 
 alleged show that such company was a co-partnership and not a cor- 
 poration. There is nothing in the name of the association to conflict 
 with this, as at common law partners may carry on business under 
 any name they choose. They are bound rather by their acts than by 
 the style which they give to themselves. Cook on Stock and Stock- 
 holders, 233 ; Chaffee v. Ludeling, 27 La. Ann. 607. 
 
 This principle has been applied in many cases where parties have 
 set up the defense of individual non-liability by reason of having di- 
 rected an incorporation to be had, but where none in fact was con- 
 summated. Cook on Stock and Stockholders, 233, 234 ; Abbott 
 v. Omaha Smelting and Refining Co., supra', Empire Mills v. Al- 
 ston Grocery Co., 15 S. W. Rep. 505 (Texas). 
 
 The law having cast this liability upon the members of the associa- 
 41 WIL. CASES.
 
 642 BOYCE V. TRUSTEES TOWSONTOWN STATION, ETC. l68 
 
 tion, we think they must be given the advantages accorded a co-part- 
 nership. So, in this case, while we feel compelled, under the statute, 
 to deny plaintiff's right of recovery as a corporation, we think they 
 may maintain the action as a co-partnership. The cause will accord- 
 ingly be reversed and remanded, with directions to the district court 
 to allow parties to amend their pleadings as they may be advised. 
 Reversed. 
 
 Note. To same effect : 1898, Maryland Tube & Iron Works v. West End 
 Imp. Co., 87 Md. 207, 39 L. R. A. 810. 
 
 See, also, cases following and those cited in note to Cochran v. Arnold, 
 supra, p. 629. 
 
 Sec. 168. 
 
 (4) Public policy forbids the creation or recognition of corpo- 
 rations by estoppel. 
 
 BOYCE v. THE TRUSTEES OF TOWSONTOWN STATION OF THE M. 
 
 E. CHURCH. 1 
 
 1876. IN THE COURT OF APPEALS of MARYLAND. 46 Md. Rep. 
 
 359-374- 
 
 [Action of assumpsit by appellant against appellee. Plea there 
 never was a corporate body as alleged. Plaintiff offered evidence to 
 show corporate existence, by way of user, by reading a mortgage exe- 
 cuted by the church to certain persons, a deed to the church for its 
 property, an application by the church for a loan, a mortgage given 
 by it for its property to secure bonds issued by it; byway of authority 
 to exist, a certificate of incorporation, setting forth name, officers, 
 location, powers, purposes, acknowledged before one justice of the 
 peace (the statute requiring the acknowledgment to be before two 
 justices), all of which was objected to, and excluded by the court; 
 this exclusion of evidence is assigned as error, and appeal taken.] 
 
 Arthur W. Machen, for appellee, contended: 
 
 The proposition contended for by the appellant's counsel would be 
 as inconvenient in practice as it is illogical and unsound. If, when- 
 ever certain individuals choose to call themselves a corporation, and 
 conduct business in the name of the supposed corporation, a corpora- 
 tion de facto is thereby created, a high attribute of sovereignty be- 
 comes unnecessary, all statutory restrictions and guards become nuga- 
 tory, and any partnership may practically become a corporation. 
 
 But what kind of a corporation is it, if it has no powers ? No prin- 
 ciple is better established than that all the corporate powers must be 
 found expressed in the charter, or necessarily incident to those powers 
 which are expressed. How would it advance the plaintiff to hold that 
 a corporation may be considered as existing, if it is impossible that 
 any cause of action can be established against it for want of charter 
 conferring power to make the contract out of which it is to arise? 
 
 1 Statement of facts abridged. Arguments for appellants omitted; only 
 part of argument for appellee given.
 
 1 68 CORPORATIONS BY ESTOPPEL. 643 
 
 There is no room for presumption or estoppel, for, the plaintiff 
 having produced the alleged instrument of incorporation, the truth ap- 
 pears, and it is manifest that the provisions of the law have not been 
 complied with, and that no incorporation was effected. 
 
 STEWART, J., delivered the opinion of the court. 
 
 From a careful consideration of the case, we find no error in the 
 rulings of the circuit court, in the four exceptions taken by the ap- 
 pellant. 
 
 The controlling question to be determined under the first plea of 
 the appellee of nul tiel corporation is, whether any or all of the evi- 
 dence offered on the part of the appellant in the said exception, and 
 refused by the court, was sufficient to show that the appellant could 
 be held to be a corporation de jure or de facto, or to estop the ap- 
 pellee from disputing its liability as a corporation. 
 
 The act of 1868, ch. 471, in its fourteenth section, provides, amongst 
 other things, for the incorporation of religious societies, and by sec- 
 tions 151, 162, 163 and 164 for religious corporations. 
 
 These last provisions are more especially applicable to the organiza- 
 tion of a church, religious society or congregation, of whatever denom- 
 ination which the appellee professes to be, and it is to be presumed 
 were intended for such purpose. 
 
 Amongst other requisites to constitute a religious corporation, 
 church, religious society or corporation under these last sections, it was 
 necessary that the agreement for that purpose should be acknowledged 
 by the trustees or a majority of them, before two justices of the peace 
 of the county or city in which the church, congregation or society, or 
 the greatest number of the members shall reside, or before a judge of 
 the circuit court, or of the supreme bench of Baltimore, and certified 
 by the said justices or judge according to the directions of section 163. 
 
 No authority having been given to the judge by these provisions, to 
 determine that the law had been complied with, his certificate is not 
 sufficient evidence that the defendant is a corporation. 
 
 But the appellant has undertaken to offer evidence of certain acts 
 and proceedings of the appellee, referred to in the exceptions, to show 
 that it held itself out as a corporation, and treated with the appellant 
 as such, and is estopped from denying its liability as a corporation. 
 
 We think it -would be extending the doctrine of estoppel to an ex- 
 tent not justified by the principles of public policy ', to allow it to op- 
 erate through the conduct of parties concerned, to create substantially 
 a de facto corporation, with just such powers as the parties may by 
 their acts give to it. 
 
 This would be substituting the dealings of the parties for compli- 
 ance with the requirements of the law, and giving to them the same 
 effect through the aid of the courts. Thus, virtually, through the 
 courts, recognizing the existence of the corporation, in manifest dis- 
 regard of the written law. 
 
 It has been determined by this court that a corporation can not bind 
 itself in excess of its powers. Pennsylvania Steam Navigation Co. v. 
 Dandridge, 8 G. & J. 319.
 
 644 FITZPATRICK V. RUTTER. 169 
 
 Whilst denying its capacity upon any principle of estoppel to make 
 contracts, ultra -vires, to bind itself, it would not be consistent with 
 that theory to recognize its existence ad libitum, according to the con- 
 duct of the parties concerned. 
 
 Such a principle -would seem to affix no other limit to the existence 
 of the corporation de facto or the extent of its po-wer than the deal- 
 ings of the parties, through the recognition of the courts, might 
 upon the doctrine of estoppel prescribe. 
 
 It would be more reasonable to hold corporations to their contracts, 
 though ultra "vires, of which they have received the benefit, or to 
 prevent parties who have contracted with them, and receive the ben- 
 efit therefrom, from defeating their liability, on the ground of want 
 of power in the corporation, as is held in quarters of high authority 
 (see note and references in 2d Kent 351), than to hold that corpora- 
 tions should be deemed to have existence because they had so held 
 themselves out. 
 
 The statute law of the state, expressly requiring certain prescribed 
 acts to be done to constitute a corporation, to permit parties indirectly, 
 or upon the principle of estoppel, virtually to create a corporation for 
 any purpose, or to have acts so construed, would be in manifest op- 
 position to the statute law and clearly against its policy, and justified 
 upon no sound principle in the administration of justice. 
 
 Judgment affirmed. 
 
 Sec. 169. (B) Parties estopped. 
 
 (i) The pretended corporation itself. 
 
 FITZPATRICK, RECEIVER, v. RUTTER. J 
 1896. IN THE SUPREME COURT OF ILLINOIS. 160 111. 282-7. 
 
 MR. JUSTICE WILKIN delivered the opinion of the court: 
 On November 20, 1893, George Rutter filed in the circuit court of 
 Cook county his declaration in assumpsit against the Switchmen's 
 Mutual Aid Association of North America, of which he was a mem- 
 ber, to collect an indemnity of $1,000, claimed to be due him, under 
 the rules of the association, for injuries sustained in a railroad acci- 
 dent. Summons was issued and served upon the officers of the asso- 
 ciation, but the declaration was not filed ten days prior to the first day 
 of the January term, 1894. By agreement of counsel, however, it was 
 stipulated that the association would take no advantage of the failure 
 to file the declaration in the proper time. The declaration was filed 
 on the first day of the January term, 1894, and on March 13, follow- 
 ing, no plea being on file, judgment by default was taken against the 
 defendant association. Execution having been issued thereon and re- 
 turned no property found, Rutter, on June 18, 1894, filed a creditor's 
 
 1 Arguments omitted. Only part of opinion given.
 
 1 69 CORPORATIONS BY ESTOPPEL. 645 
 
 bill in the superior court of Cook county, based on the judgment of 
 March 13, to discover and reach moneys in the hands of the association. 
 The defendant was served with summons, just as it was in the suit at 
 law. No answer being made, it was defaulted. The officers of the 
 association answered 1 for themselves and the other members of the 
 association, and upon their answer being replied to, the cause was re- 
 ferred to a master, and proofs were taken upon the issue thus formed. 
 The decree of the court was in favor of complainant. Defendants 
 severally prayed an appeal, but afterward withdrew their prayer for 
 appeal, and John E. Fitzpatrick, as receiver of the association, hav- 
 ing been appointed by the circuit court on July 21, 1894, made him- 
 self a party to the cause and perfected the appeal. The cause was 
 taken to the appellate court for the First district, and is brought here 
 to reverse the decision of affirmance in that court. 
 
 The first ground upon which appellant relies for reversal here is 
 that the circuit court had no jurisdiction over the person of the defend- 
 ant association, as it was sued as a corporation, summons being issued 
 and served upon its officers only, instead of each of the members, as 
 should have been done, to bring a voluntary association within the 
 jurisdiction of the court. If a court has proceeded without jurisdic- 
 tion, its judgment is absolutely void for every purpose, and will be 
 so declared in any court in which it may be presented, and that ques- 
 tion is, therefore, proper to be considered here. But we think, from 
 an examination of the record, the appellate court -and the trial court 
 were justified in finding, from the evidence, that the association was a 
 de facto corporation, and properly served with process. The Switch- 
 men's Mutual Aid Association of North America had an organization, 
 consisting of directors, a president, secretary and other officers. Its 
 name implied a corporate body. It authenticated its acts by a com- 
 mon seal and exercised corporate powers, and it is thus estopped from 
 denying its corporate existence. United States Express Co. v. Bed- 
 bury, 34 111. 459. * * * 
 
 Judgment affirmed. 
 
 Note. See, 1695, Knight v. Corporation of Wells, 1 Lutw. f. 508; 1729, 
 Henriques v. Dutch West India Co., 2 Ld. Raym. 1532; 1842, Stone v. Berk- 
 shire Congregational Society, 14 Vt. 86; 1848, Johnston v. South West 
 R. Bank, 3 Strob. Eq. (S. C.) 263; 1851, Stoddard v. Onondaga Conference, 
 12 Barb. (N. Y.) 573; 1857, Abbott v. Aspinwall, 26 Barb. (N. Y.) 202; 1858, 
 Kennedy v. Cotton, 28 Barb. (N. Y.) 59; 1860, Dooley v. Cheshire Glass 
 Co., 15 "Gray (Mass.) 494; 1860, Calender v. Painesville, etc., R. Co., IV 
 Ohio St. 516; 1864, The United States Express Co. v. Bedbnry, 34 111. 459, 
 holding that the name "The United States Express Co." imported a corpora- 
 tion ; 1871, McCullough v. Talladega Ins. Co., 46 Ala. 376 ; 1874, Grape Sugar 
 and Vinegar Mfg. Co. v. Small, 40 Md. 395; 1879, Humphrey v. Patrons 
 Mercantile Assn., 50 Iowa 607; 1881, Empire Mfg. Co. v. Stuart, 46 Mich. 
 
 1 This answer, as stated in the report of the case in 58 111. A pp. 532, on 533, 
 alleged that "it was a voluntary association having several thousand members 
 throughout the United States and Canada; that it was not incorporated under 
 the laws of this or any other state or country ; that it did not hold itself out 
 to the public or to its members as a corporation, and that it was not a corpo- 
 ration dr. facto." The master found these allegations to be substantially true. 
 See 58 III. App. 534.
 
 646 FOSTER V. MOULTON. I/O 
 
 82; 1882, Dobson v. Simonton, 86 N. C. 492; 1886, Kelly v. Newburyport & 
 L. H. R., 141 Mass. 496, 6 N. E. 745; 1888, Williams v. Stevens Point Lum- 
 
 482; 
 A. 
 
 ber Co., 72 Wis. 487 ; 1891, Scheufler v. Grand Lodge A. O. U. W., 45 Minn. 
 256- 1892, Roll v. St. Louis, etc., Smelting & M. Co., 52 Mo. App. 60; 1893, 
 Stewart Paper Mfg. Co. v. Rau, 92 Ga. 511, 17 S. E. 748; 1893, Meneer v. De- 
 troit Mat. Benev. & P. Assn., 95 Mich. 451 ; 1898, Bishop v. Kent & Stanley 
 (Jo., 20 R. I. 680, 9 Am. & E. C. C. (N. S.) 718. 
 
 Sec. 170. 
 
 (2) The associates. 
 (#) Among themselves. 
 
 FOSTER v. MOULTON. 
 
 1886. IN THE SUPREME COURT OF MINNESOTA. 35 Minn. Rep. 
 
 458-460. 
 
 Appeal by defendant, E. H. Moulton, from an order of the district 
 court for Blue Earth county, Severance, J., presiding, overruling his 
 separate demurrer to the complaint. 
 
 BERRY, J. The complaint in this action sets out what purports to 
 be the articles of incorporation of a mutual benefit association, which 
 appears to have been intended to be a sort of mutual insurance com- 
 pany, and alleges that said articles were duly executed by defendants, 
 and duly recorded with the register of deeds and secretary of state ; that 
 one McCarthy became a member of the association, paid his dues and 
 received a certificate of membership ; that he sustained bodily injury, 
 entitling him, as such member, to pecuniary benefit; that the amount 
 due him under the terms of his membership has not been paid, and 
 that he has duly assigned his right to such benefit to the plaintiff. 
 
 The association did not comply with the statute so as to become an 
 insurance corporation de jure. The appellant (one of the defend- 
 ants) contends that it was duly incorporated as a benevolent society 
 under Gen. Stat. 1878, ch. 34, title iii. This can not be so, for it is 
 no more a benevolent society than any mutual insurance company, or 
 other mutual company, or any partnership of which one member un- 
 dertakes to do something for the pecuniary advantage of another 
 member in consideration of the undertaking of the latter to do a like 
 thing for him. The undertaking is not in any proper sense benevolent, 
 but it is for a quid pro quo it paid for. People v. Nelson, 46 N. Y. 
 477. The association involved in the case at bar is, in substance, for 
 purposes of mutual insurance. State v. Merchants' Exch. Mut. 
 Benev. Soc. , 72 Mo. 146; State v. Benefit Assn. 6 Mo. App. 163; 
 Commonwealth v. Wetherbee, 105 Mass. 149; May Ins., 550, a. 
 
 But notwithstanding it is not a corporation de jure, we think it 
 must at least, as between its members, be regarded as a corporation 
 de jacto. It is manifest that the understanding between the members 
 and the basis upon which certificates of membership were issued was 
 that the association was a corporation in fact as it was in form. Mor- 
 awetz Priv. Corp., 139. // never could have been intended or ex-
 
 I/I CORPORATIONS BY ESTOPPEL. 647 
 
 bectcd that the members of the association, whether original founders 
 members like defendants or those -who should become members by 
 joining at any time, should or would be liable as individiials, either 
 jointly or severally, to any particular member who should, by virtue of 
 and under the terms of his membership, become entitled to pecuniary 
 relief or benefit. On the contrary, the intention and the real contract 
 was that the association, as a corporation in the contemplation of the 
 parties, i. e., the members, should be liable, and the association only. 
 In such a state of facts, though the association is not a corporation 
 de jure, and perhaps not for every purpose a corporation de facto, 
 it is as between the members themselves to be treated as a corpora- 
 tion de facto (for that is the way in which the contract of the parties 
 treats it), and the right of a member to pecuniary benefit from the 
 association by virtue of his membership must stand upon the basis 
 that it is a corporation de facto. Being presumed to know the signifi- 
 cance of his membership, its rights and liabilities (Coles v. Iowa State 
 Mut. Ins. Co., 18 Iowa 425), he is estopped to take any other posi- 
 tion. This is not only intrinsically just and fair, but it is in accord- 
 ance with the principles of the authorities. Morawetz Priv. Corp., 
 131, 132, 134-137; Buffalo & A. R. Co. v. Gary, 26 N. Y. 75, 
 followed in 57, 64, 67 N. Y. , and 95 U. S. ; White v. Ross, 4 Abb. 
 Dec. 589; Aspinwall v. Sacchi, 57 N. Y. 331 ; Eaton v. Aspinwall, 
 19 N. Y. 119; Sands v. Hill, 46 Barb. 651; Sanger v. Upton, 91 
 U. S. 56; Chubb v. Upton, 95 U. S. 665. 
 
 It is important to bear in mind that no fraud is alleged against de- 
 fendant; and, further, that this is a case in which a member of the 
 association is seeking relief by virtue of his membership. If the ac- 
 tion were between a purported or pretended corporation, which was 
 wholly unauthorized and invalid, and a stranger, different rules and 
 principles might, in some circumstances, be involved. 
 
 The application of the foregoing views is that, the action having 
 been brought against defendants as individuals merely, the general 
 demurrer of the appellant, who was one of the defendant members of 
 the association, was erroneously overruled. The overruling order is 
 accordingly reversed. 
 
 Note. See note to next case, infra, p. 649. 
 
 Sec. 171. Same. 
 
 () As to the corporation or its creditors. 
 
 I . Upon subscription liability. 
 CANFIELD v. GREGORY. 1 
 
 1895. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 66 
 
 Conn. Rep. 9-23. 
 
 BALDWIN, J. * * * The plaintiff sues as trustee in insolvency of a 
 joint-stock corporation, upon an assessment which it has called in upon 
 
 h Only part of the opinion is given.
 
 648 CANFIELD V. GREGORY. 1/1 
 
 the defendant's stock, and the only answer is nultiel corporation. The 
 second reply is that, however this may be, the defendant is estopped 
 from making such a defense, because the debts, whose existence have 
 made the company insolvent, are due to creditors who trusted it as a 
 corporation, because they were led to believe that it was such by the 
 acts of the defendant, in promoting its organization, publishing its ar- 
 ticles of association, acting as a director and as its president, and con- 
 tracting in its name and behalf these very liabilities. 
 
 It is claimed that these averments were not sufficient, because no 
 bad faith, willful wrong or gross carelessness is charged. No such 
 charges were necessary. The plaintiff represents the rights of the 
 creditors of an insolvent company, who contracted with it as being a 
 corporation. Whatever rights they formerly had .against those who 
 were its members he now has. They were led to believe in the ex- 
 istence of such a corporation by the acts of the defendant, as a pro- 
 moter, stockholder, director and president of the company, which are 
 set out in the reply. It was natural that such acts should induce that 
 belief. He had means of knowledge as to the manner in which 
 the company was organized which were not possessed by the public 
 in general. Had he in fact known that its organization was so de- 
 fective that the corporation, in whose name he was contracting, had 
 no existence, or was incapable of transacting business, his acts would 
 have been no more prejudicial to the other contracting parties. It is 
 not his intent, so much as the result of his conduct, which determines 
 his liability. 
 
 The modern estoppel in pats is of equitable origin, though of equal 
 application in courts of law. It is much more than a rule of evidence. 
 It establishes rights ; it determines remedies. An equitable estoppel 
 does not so much shut out the truth as let in the truth, and the whole 
 truth. Its office is not to support some strict rule of law, but to show 
 what equity and good conscience require, under the particular circum- 
 stances of the case, irrespective of what might otherwise be the legal 
 rights of the parties. The key to its application is not infrequently 
 to be found in the rule that in matters of trust and confidence, when 
 one of two innocent persons must suffer, in consequence of the acts 
 of one of them, the loss must generally be borne by him \vho thus oc- 
 casioned it. Horn v. Cole, 51 N. H. 287, 12 Am. Rep. in ; Stevens 
 v. Dennett, ibid. 324, 330; 2 Pomeroy's Eq. Juris., 802. 
 
 This rule clearly governs the case at bar. It is true that it does not 
 extend to acts or representations not naturally calculated to mislead, 
 and on which others had no right to rely. Danforth v. Adams, 29 
 Conn. 107. But those of the defendant were addressed to the public 
 and to the parties injured. They came from one who w r as in a posi- 
 tion to know what he affirmed. They gained credit to an organization 
 in which he was interested. The company was a de facto corpora- 
 tion. Its creditors, who contracted with it as a corporation, could not 
 hold the individuals who had associated to form it personally liable as 
 co-partners, for with them no contract had been made. 2 Morawetz 
 on Private Corporations, 748. The defendant was thus shielded from
 
 1/1 CORPORATIONS BY ESTOPPEL. 649 
 
 partnership liability by his representations as to its corporate charac- 
 ter, and on these representations those with whom he dealt as one of 
 its officers had a right to rely. Northrop v. Bushnell, 38 Conn. 498, 
 511 ; West Winsted Savings Bank v. Ford, 27 Conn. 282, 289. * * * 
 
 It was not in dispute between the parties to this cause that the 
 articles of association and organization certificate were sufficient in 
 form, and that they were duly published and filed for record. The 
 only issue tendered by the answer was upon the allegation that there 
 was not and never had been any such corporation as that of which the 
 plaintiff claimed to be a trustee, but the estoppel set up in the reply had 
 a broader reach, and was invoked to preclude the defendant from deny- 
 ing that the corporation ever existed, and that it was capable of con- 
 tracting debts and making calls on stock subscriptions. 
 
 As the case was tried in the court below in this broader aspect, and 
 as if turning on the right of the defendant to rely on the falsity of ma- 
 terial statements in the organization certificate, we have treated it 
 from the same point of view, although it may be that, in strictness, 
 the answer was disproved by the admitted facts, which went to show 
 that a corporation was organized, although it never became legally 
 competent to commence business. If this be so, the plaintiff would 
 no less have been entitled to a verdict on the issues closed. 
 
 There is no error in the judgment appealed from. 
 
 In this opinion the other judges concurred. 
 
 Note. 1. As to subscription liability. 1819, Chester Glass Co. v. Dewey, 16 
 Mass. 94, 8 Am. Dec. 128; 1850, Oswego & S. P. R. Co. v. Rust, 5 How. Pr. 
 (N. Y.) 390; 1856, Eaton v. Aspinwall, 13 How. Pr. (N. Y.) 184; 1857, Stoops 
 v. Greensburgh P. R. Co., 10 Ind. 47; 1859, Rice v. Rock Island & A. R. Co., 
 21 111. 93; 1862, Buffalo & A. R. Co. v. Gary, 26 N. Y. 75; 1873, Mont- 
 pelier & W. R. Co. v. Langdon, 46 Vt. 284; 1873, Upton v. Hansbrough, 
 3 Biss. 417, Fed. Cas. 16,801 ; 1874, Ossipee Hosiery & W. Mfg. Co. v. Canney, 
 54 N. H. 295; 1875, Parker v. North Cent. M. R. Co.. 33 Mich. 23; 1877, Baile 
 v. Calvert Ed. Soc., 47 Md. 117; 1878, Dows v. Naper, 91 111. 44; 1880, Home 
 Ins. Co. v. Sherwood, 72 Mo. 461 ; 1885, Thompson v. Reno Sav. Bank, 19 
 Nev. 103, 3 Am. St. Rep. 797, with note, p. 806; 1888, Aultman v. Waddle, 40 
 Kan. 195, 19 Pac. Rep. 730; 1890, National Com. Bank v. McDonnell, 92 Ala. 
 387 ; 1894, American Homestead Co. v. Linigan, 46 La. Ann. 1118, 15 So. Rep. 
 369; 1893, Building & L. Assn. v. Chamberlain, 4 So. Dak. 271,56 N. W. Rep. 
 897; 1895, Greenbrier Indus. Ex. v. Squires, 40 W. Va. 307, 52 Am. St. Rep. 
 884; 1898, In re Davis Estate v. Watkins, 56 Neb. 288, 76 N. W. Rep. 575. 
 
 2. But preliminary subscriptions to the stock of a corporation to be formed are 
 presumed to be made with the understanding that a de jure corporation will 
 be formed, and hence if there is no other ground of entoppol than the mere 
 subscription, the subscriber is not estopped from denying that there is a valid 
 corporation. 1874, Indianapolis F. & M. Co. v. Herkimer, 46 Ind. 142; 1879, 
 Rickhoff v. Brown's R. S. S. M. Co. ,68 Ind. 388; 1S94, Capps v. Hastings Pros. 
 Co., 40 Neb. 470, 42 Am. St. Rep. 677, 24 L. R. A. 259, 58 N. W. Rep. 956, 
 supra, p. 239. But see Dorris v. French, 4 Huii ^N. Y.) 292 (1875). 
 
 3. What acts loill raise an estoppel. 
 
 (a) Payments on calls estop: 1864, Ohio, etc., R. v. McPherson, 35 Mo. 
 13, 86 Am. Dec. 128; 1866, Boegs v. Olcott, 40111. 303; 1879, Rickhoff v. Ma- 
 chine Co., 68 Ind. 388; 1880, Musgrave v. Morrison, 54 Md. 161 ; 1886, Bell's 
 Appeal, 115 Pa. St. 88, 2 Am. St. Rpp. 532; 1891. Minnesota Gaslight EC. Co. 
 v. Denslow, 46 Minn. 171, 48 N. W. Rep. 771 ; 1895, Greenbrier Indus. Ex. v. 
 Squires, 40 W. Va. 307, 52 ft 8H4.
 
 650 CURTIS V. TRACY. 1/2 
 
 i6> Voting at meetings estops: 1864, Railroad Company v. Bowser, 48 Pa. 
 St. 29; 1890, Association v. Walker, 83 Mich. 386; 1895, Greenbrier Indus. 
 Ex. v. Squires, 40 \V. Va. 307. 
 
 (c) Attending and participating in organization meeting, or acquiescing in 
 corporate acts, and receiving benefits estop: 1824, Rockville & W. T. R. Co. 
 v. Van Ness, 2 Cranch (C. C. 449, Fed. Cas. 11,986; 1849, South Bay M. D. 
 Co. v. Gray, 30 Maine 547 ; 1850, Bridge Co. v. Chapin, 6 Cush. i Mass.) 50, on 
 53; 1858, Haynes v. Brown, 36 N. H. 545; 1888, Schloss v. Trade Co., 87 Ala. 
 41 1, on 414, 13 Am. St. Rep. 51; 1894, Ogden Clay Co. v. Harvey, 9 Utah 
 497 35 Pac. Rep. 510; 1895, Greeiibrier Indus. Ex. v. Squires, 40 W. Va. 
 307. 
 
 (d) Accepting office from corporation. See note below, under Curtis, Exr., 
 v. Tracy, infra, p. 650. 
 
 Sec. 172. Same. 
 
 2. Upon statutory liability. 
 
 MCCARTHY v. LAVASCHE. 
 
 1878. 89 111. 270, 31 Am. Rep. 83, supra, 253. 
 
 Note. To same effect, see, 1859, Eaton v. Aspinwall, 19 N. Y. 119; 1871, 
 Slocumv. Providence Steam & Gas R. Co., 10 R. I. 112, 116; 1872, Peychaud 
 v. Lane, 24 La. Ann. 404; 1873, Upton v. Hansbrough, 3 Biss. 417, Fed. Cas. 
 16,801; 1876, Casey v. Galli, 94 U. S. 673; 1883, Keyser v. Hitz, 2 Mackey 
 (D. C.) 473; 1886, Bell's Appeal, 115 Pa. St. 88, 8 Atl. 177. As to what acts 
 will raise an estoppel, see supra, note, 171. 
 
 Sec. 173. 
 
 (3) The promoters and officers of the apparent corporation. 
 CURTIS, EXR., v. TRACY, ET AL. 1 
 
 1897. IN THE SUPREME COURT OF ILLINOIS. 169 111. Rep. 233-238. 
 Affirming same case, 62 111. App. 49. 
 
 MR. JUSTICE MAGRUDER delivered the opinion of the court: 
 This is an action brought to the July term, 1895, of the superior 
 court of Cook county, against appellees, seeking to hold them liable 
 as partners upon four promissory notes, executed by the Central Illi- 
 nois Coal Company, all dated April 16, 1884, amounting altogether 
 to $20,000. * * * 
 
 The contention of the plaintiff, arising upon exceptions to the ad- 
 mission of evidence and upon the refusal of propositions of law sub- 
 mitted to the court, is, that, as the notes sued upon were made in the 
 name of the corporation on April 16, 1884, and the certificate of or- 
 ganization was not recorded until June 5, 1885, the defendants, as 
 directors, assumed to exercise corporate powers without complying 
 with the provisions of the incorporation act, and are, therefore, liable 
 
 1 Statement of facts much abridged.
 
 1/3 CORPORATIONS BY ESTOPPEL.- 651 
 
 to pay the notes as partners under sections 4 and 18 of that act. (i 
 Starr & Cur. Stat. 610, 617). 
 
 We have recently considered the liability of officers and directors of 
 a corporation, under said sections 4 and 18, to creditors who are third 
 persons. (Loverin v. McLaughlin, 161 111. 417.) In the Loverin case 
 a distinction was said to exist between cases where a stockholder is a 
 party to the suit, and cases where the contest is between third persons 
 and the officers or directors assuming to exercise corporate powers. In 
 the case at bar, C. H. Curtis, plaintiff's testator, was a stockholder 
 in the company at or near the time when he became the owner of the 
 notes sued upon, and not only so, but he was elected as a director of 
 the company and transacted business for the company as such director 
 before the certificate of organization was recorded as required by sec- 
 tion 4. While acting as a director of the company, he accepted 400 
 shares of the capital stock as security for the very debt here sought to 
 be recovered. It is true that the notes were not made while he was 
 director; but after he became director he recognized the debt as an 
 obligation of the corporation by taking part in proceedings by the 
 board of directors by which the debt was further secured. Being al- 
 ready a stockholder and director he accepted additional certificates of 
 stock, issued to him as security for these notes. This was done on 
 October 22, 1884, and the certificate of organization w^as not recorded 
 until June 5, 1885. It was as much his duty to see to it that the cer- 
 tificate was recorded as it was the duty of the original board of direc- 
 tors, elected by the first meeting of the subscribers. (Bushnell v. 
 Consolidated Ice Machine Co., 138 111. 67.) By acting with the 
 other directors in the meeting of October 22, 1884, he assumed to exer- 
 cise corporate functions before that provision of the act, which required 
 the certificate to be recorded, had been complied with. He is estopped 
 by his conduct from seeking to enforce the liability provided for in 
 section 18 against the defendants. He can not enforce against others 
 a penalty which he has himself incurred by his own conduct. 
 
 It is well settled that a stockholder can not defend against a liability 
 which rests upon him for the benefit of corporate creditors, upon the 
 ground that the corporation was not legally organized by reason of 
 non-compliance with the terms of the statute providing for such an in- 
 corporation. (Hickling v. Wilson, 104 111. 54.) He is estopped by 
 the act of subscribing for the stock from setting up such defense. 
 Upon principle there can be no difference between such a case and a 
 case where a stockholder, who is also a director, seeks to enforce a 
 claim resting for its validity upon the fact that the corporation in 
 which he is such stockholder and director was not organized in accord- 
 ance with the statute. Where a man has acted as a director of a cor- 
 poration and participated in the management of its affairs, and at- 
 tended its business meetings and voted upon questions affecting its 
 interests, before the certificate of its organization has been recorded as 
 required by law, he should be estopped from enforcing against others a 
 liability based exclusively upon their failure to record the same certificate 
 which he failed to have recorded.
 
 652 WEST WINSTED, ETC., V. FORD. 
 
 Under the facts as herein recited, we think that the judgments of 
 the superior court of Cook county and of the appellate court were cor- 
 rect. Those judgments are accordingly affirmed. 
 
 Judgment affirmed. 
 
 Note. See, 1828, All Saints Church v. Lovett, 1 Hall (N. Y.) 191 ; 1843, 
 Selma & T. R. R. v. Tipton. 5 Ala. 787, 39 Am. Dec. 344; 1853, Danbury & N. 
 R. Co. v. Wilson, 22 Conn. 435; 1858, Hayes v. Brown, 36 N. H. 545; 1867, 
 Mason v. Nichols, 22 Wis. 376; 1870, Ramsey v. Peoria M. & F. Ins. Co., 55 
 111. 311 ; 1871, Parrott v. Byers, 40 Cal. 614; 1876, Phoenix W. Co. v. Badger, 
 67 N. Y. 294; 1882, Close v. Glenwood Cemetery, 107 U. S. 466; 1885, Thomp- 
 son v. Eeno Sav. Bank, 19 Nev. 103, 3 Am. St. Rep. 797, and note; 1888, 
 Marshall Foundry Co. v. Killian, 99 N. C. 501, 6 Am. St. Rep. 539; 1888, 
 Weinman v. Wilkinsburg & E. L. Pass. Ry., 118 Pa. St. 192, 12 Atl. Rep. 288; 
 1889, Corey v. Morrill, 61 Vt. 598; 1890, Bates v. Wilson, 14 Colo. 140, 24 Pac. 
 Rep. 99; '1894, State Bank Building Co. v. Pierce, 92 Iowa 668,61 N. W. 
 Rep. 426. 
 
 Sec. 174. 
 
 (4) Dealers with knowledge of claim of corporate capacity. 
 (#) Who seek to evade liability to the apparent corporation. 
 
 WEST WINSTED SAVINGS BANK AND BUILDING ASSOCIATION 
 
 v. FORD. 1 
 
 1858. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 27 
 Conn. Rep. *2^>2-2gi. 
 
 ELLSWORTH, J. It appears in March, 1852, the respondent, with 
 twenty-five others, took measures to form a corporation inWestWin- 
 sted, under the act of 1850 authorizing the establishment of savings 
 and building associations. The corporators prepared and signed the 
 articles of association, and caused a copy to be left with the clerk of 
 the town, in all respects complete except that the names of the. corpo- 
 rators were not appended. They commenced and ever since have 
 continued to prosecute their business (somewhat extensively) under 
 their corporate name, "The West Winsted Savings Bank and Building 
 Association." In July, 1854, the respondent applied to and received 
 from the company a loan of $1,000, from which a bonus of 28 per 
 cent, was deducted, leaving the amount actually received $720. For 
 this loan of $1,000 he executed his note to the company, and agreed 
 to secure it by good and perfect deed of land described in the peti- 
 tioners' bill. It is found that he did execute and deliver to them a 
 deed as agreed, except that one of the witnesses to it was a member of 
 the company, and therefore, not a good witness, as this court has re- 
 cently decided. In consequence of this the deed is not good, and the 
 debt is not secured. The company have now brought their bill to ob- 
 tain a good and perfect deed. All the facts stated in the bill are 
 
 1 Statement of facts, except as given in the opinion, and arguments omitted.
 
 174 CORPORATIONS BY ESTOPPEL. 653 
 
 found to be true except what is said about the corporators having 
 signed the copy of the articles left with the town clerk. Our advice 
 is asked as to the company's right to demand and have such deed, to- 
 gether with a decree of foreclosure; and whether the bonus is legal, 
 and may be enforced, or should be rejected, in ascertaining the sum 
 which is now due on the note. 
 
 We think the company are entitled to the relief they ask for, 
 including in the debt the bonus of twenty-eight per cent. 
 
 It is objected to any decree in favor of the petitioners, that they are 
 not a body corporate as they have alleged, and can not bring suit, in- 
 asmuch as the corporators did not comply with the fifth section of 
 the act, which says a copy of the articles shall first be left with the 
 town clerk. 
 
 On the one hand it is claimed that the statute requires that a copy 
 shall be left and nothing more, and that the court has no power or 
 right to superadd any other prerequisite ; on the other hand, it is 
 claimed that the paper is not a copy without the names of the stock-, 
 holders which are appended to the original. We have not thought it 
 important to examine or decide this point, because we are all satis- 
 fied for several reasons that no such objection ought to prevail in this 
 case. 
 
 In the first place, the objection to the existence of, a corporation 
 plaintiff can not be raised upon the general issue. It is preliminary 
 in its character, like all objections to the person or character in which 
 a plaintiff sues, and should be pleaded in an earlier stage of the 
 cause. The existence of a corporation and its capacity jto sue are ad- 
 mitted by a plea to the merits. The authorities on this point are 
 very numerous. Phoenix Bank of N. Y. v. Curtis, 14 Conn. 437; 
 Champlin v. Tilley, 3 Day 303; Sutton v. Cole, 3 Pick. 232, 245; 
 Penobscot Boom Corporation v. Lampson, 16 Maine 224; Bank of 
 Manchester v. Allen, n Verm. 302; School District v. Blaisdell, 6 
 N. H. 197; Bank of Utica v. Smally, 2 Cow. 770. 
 
 In the second place, the respondent is estopped by matter in pats. 
 We have seldom met with a case to which this kind of equitable 
 estoppel is more properly applicable than the present. In 1852 the 
 respondent, with others, united and formed this association, and pro- 
 claimed themselves a corporation under the act of 1850. They 
 unitedly took what were supposed to be the necessary measures to 
 perfect their organization according to law, and if it has not been ex- 
 actly done, the omission was through their mutual mistake and mis- 
 apprehension. They intended that it should be considered as done, 
 and so we must now treat them, not only as possessing a corporate 
 existence, but as having a corporate existence under the statute, and 
 having, as to and among themselves certainly, the attributes of such a 
 corporation. The respondent has influenced persons to become mem- 
 bers of the company, some by subscribing and some by purchasing 
 from those who have subscribed, and to deposit their moneys and 
 form contracts with the company as duly incorporated and qualified 
 to act as a corporation under the provisions of the statute. Besides,
 
 654 WEST WINSTED, ETC., V. FORD. 1/4 
 
 the company has, during all this time, with the concurrence and co- 
 operation of the respondent, been carrying on business as a corpora- 
 tion, admitting new members, choosing officers and agents, borrowing 
 and loaning money, receiving money on deposit and the like, until the 
 rights and duties of the corporators and the corporation have become 
 exceedingly multiplied and important, and, which ought to be con- 
 clusive upon the respondent, he has borrowed this very money and 
 given his note and deed for it to the company by its corporate name. 
 It would be a reproach to the law if, after this, he can be allowed to 
 call in question the existence of the corporation or its capacity to loan 
 the money. Of what particular importance was the leaving a copy 
 of the articles of association to the members of the company ? How 
 did the omission affect or injure them ? Their relations between them- 
 selves or with the company did.not grow out of that circumstance, and 
 we can not allow it to have any effect on these parties, however it may 
 be as to the right of the government to complain, if it see fit, and pros- 
 ecute the company by a writ of quo ivarranto, 
 
 The doctrine of equitable estoppel is of so common application 
 here and elsewhere at this day, and has been so often discussed, and 
 shown to be founded in such obvious propriety and necessity, that we 
 need not spend time in discussing it, and it will be sufficient if we 
 merely state the general principles pertaining to it. At the common 
 law estoppels are founded on deeds and records of court, but estop- 
 pies in equity are estopples in pais. The doctrine of this kind of 
 estoppels was at first administered as a branch of equity jurisprudence, 
 but is now incorporated into the law. The rule with regard to com- 
 mon law estoppels is a precise and technical one, though supposed to 
 be founded in principles of truth and justice, such as the statement 
 of material facts in specialties or as found by verdicts or judgments 
 upon trials in courts of record. The common law rule is obviously 
 too narrow and inadequate for the attainment of equity in the multi- 
 plied transactions of modern times, and hence the equitable estoppel 
 of the present day. 
 
 Estoppel in pais is founded in the obligation which every man is un- 
 der to speak and act according to the truth of the case, and in the 
 policy of the law to prevent the great mischiefs resulting from uncer- 
 tainty, confusion and want of confidence in the intercourse of men, if 
 they were permitted to deny that which they have deliberately and 
 solemnly asserted and received as true. But the mere acts, state- 
 ments, or admissions of a party when not performed or made under 
 seal or of record, or in some of those acts to which peculiar authority 
 is attached by law, were not at common law considered as estoppels, 
 and had no other weight than that of evidence, more or less impor- 
 tant, but which might be explained or rebutted. By the recent de- 
 cisions of the courts in this country and in England, a much wider 
 scope is given to the doctrine of estoppels in pais, and it is now held 
 and established, that wherever an act is done or a -settlement made by 
 a party which can not be contravened or contradicted without fraud, 
 or gross misconduct, which is akin to it, on his part, an injury to oth-
 
 1/4 CORPORATIONS BY ESTOPPEL. 655 
 
 ers whose conduct has been influenced by the act or omission, or, as 
 was said in Middleton Bank v. Jerome, 18 Conn. 449, where a per- 
 son by his acts or his words intentionally induces another to believe 
 in the truth of a fact and thereby change his situation or commit his 
 interests, the character of an estoppel will attach to what would oth- 
 erwise be mere matter of evidence, and will become binding upon a 
 party and decisive with a jury even in opposition to proof of a con- 
 trary nature. Equitable estoppels, therefore, only arise when the 
 conduct of the party estopped is fraudulent in its purpose, or unjust in 
 its result, which forms the material distinction between the common 
 law doctrine of estoppel and that which has grown up under the influ- 
 ence of equity in modern times. This entire doctrine has been exam- 
 ined and settled in this court in repeated instances as may be seen by 
 the cases in our books. Kinney v. Farnsworth, 17 Conn. 360; Mid- 
 dleton Bank v. Jerome, 18 Conn. 450; Noyes v. Ward, 19 Conn. 
 250; Whitaker v. Williams, 20 Conn. 98: Emmons v. Gibbings, 24 
 Conn. 538. Let this doctrine be applied to the respondent and his 
 course of conduct, and we must see that it is not for him, with his 
 money in his pocket, to call in question the character of the party who 
 has loaned him the money and taken his mortgage. If further author- 
 ity is wanted we refer to Worcester Medical Society v. Harding, 1 1 
 Cush. 285, which is exactly this case, and in which the court promptly 
 overruled this objection. Stow v. Wyse, 7 Conn. 214; Narraganset 
 Bank v. Atlantic Silk Co., 3 Met. 282; Congregational Society in 
 Troy v. Perry, 6 N. H. 164 ; Dutchess Cotton Manufacturing Co. v. 
 Davis, 14 Jones, 238; Eaton v. Aspinwall, 6 Duer 176; McFarlon 
 v. Triton Ins. Co., 4 Denio 392; Schenectady & Saratoga Plank- 
 road Co. v. Thatcher, i Kern 108; Palmer v. Lawrence, 3 Sandf. 
 161 ; All Saints Church v. Lovett, i Hall Sup. Ct. 191. 
 
 It has been claimed that the respondent is estopped under the com- 
 mon law rule, by the statement in his deed that there is such a corpo- 
 ration as the plaintiff's from whom he has borrowed the money and 
 to whom he has executed his mortgage deed. But passing this, we 
 decide that this fact, with the others to which we have alluded are 
 sufficient to constitute a good equitable estoppel, which is sufficient 
 for the present case. It is stronger than the common case of land- 
 lord and tenant where rent has been paid, which is a good estoppel. 
 
 There is still another ground of objection to the claim of the re- 
 spondents, to which allusion has previously been made, to wit, that 
 this corporation, having enjoyed its franchises so long, can be called 
 in question only by the government, and can be reached only by quo 
 warranto, if the government feel that here has been an unwarrantable 
 exercise of corporate power. There is perhaps force in this objection, 
 but it is not necessary for us to consider it. 
 
 Our conclusion is that the petitioners are entitled to a good and 
 perfect deed from the respondent and a decree for a foreclosure for 
 the whole note ; and this is our advice. 
 
 In this opinion the other judges concurred. 
 
 Decree advised for plaintiffs.
 
 656 SNIDER'S SONS' co. v. TROY. 175 
 
 Note. See, 1829, Hamtramck v. Bank of Edwardsville, 2 Mo. 169; 1833, The 
 Congregational Society v. Perry, 6 N. H. 164; 1839, Bank v. Allen, 11 Vt. 302; 
 1843, Proprietors of Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276; 1853, 
 Worcester Med. Inst. v. Harding, 11 Cash. (65 Mass.) 285; 1855, Henderson 
 R. Co. v. Leavell, 55 Ky. (16 B. Mon.) 358; 1860, Jones v. Cincinnati Type 
 Foundry Co., 14 Ind. 89; 1861, Wood v. Coosa & C. R. Co., 32 Ga. 273; 1862, 
 Washington College v. Duke, 14 Iowa 14; 1868, Cochran v. Arnold, 58 Pa. St. 
 399, snpra, p. 625; 1878, Cahall v. Citizens' Mut. B. Assn., 61 Ala. 232; 1880, 
 Humphreys v. Mooney, 5 Colo. 282; 1881, St. Louis Gas L. Co. v. St. Louis, 
 
 11 Mo. App. 55; 1881, Central Ag. & Mech. Assn. v. Alabama G. L. Ins. Co., 
 70 Ala. 120; 1883, Imboden et al. v. The Etowah & B. B. M. Co., 70 Ga. 86, 
 on 107; 1883, Whitford v. Laidler, 94 N. Y. 145; 1886, Town of Searcy v. Yar- 
 nell, 47 Ark. 269; 1886, Singer Mfg. Co. v. Bennett, 28 W. Va. 16; 1887, Fresno 
 Canal & I. Co. v. Warner, 72 Cal. 379, 14 Pac. Rep. 37; 1889, McCord & N. 
 M. Co. v. Glenn, 6 Utah 139, 21 Pac. Rep. 500; 1889, Cravens v. Eagle Cotton 
 Mills Co., 120 Ind. 6, 21 N. E. Rep. 981 ; 1891, Bon Aqua Imp. Co. v. Stand- 
 ard F. I. Co., 34 TV. Va. 764, 12 S. E. Rep. 771; 1892, Perine v. Grand Lodge 
 A. O. U. W., 48 Minn. 82, 50 N. W. Rep. 1022; 1895, Johnston v. Gurnbel, 19 
 South. 100; 1896, Livingston Loan & B. Assn. v. Drummond, 49 Neb. 200, 
 68 N. W. Rep. 375; 1896, Tuckasegee Min. Co. v. Goodhue, 118 N. C. 981; 
 1898, Carroll v. Pacific Nat'l Bank, 19 Wash. 639, 9 Am. & E. C. C. (N. S.) 202, 
 holding that a dealer with an apparent corporation will be estopped from de- 
 nying the corporate existence, if it would prejudice third parties ; 1898, Jones 
 v. Hale, 32 Ore. 465, 52 Pac. Rep. 311 ; 1898, Grande Ronde L. Co. v. Cotton, 
 
 12 Colo. App. 375, 55 Pac. Rep. 610. But compare Jones v. Aspen Hardware 
 Co., supra, p. 637. 
 
 Sec. 175. Same. 
 
 () Who seek to hold members of the corporation liable as 
 partners, or individually liable. 
 
 SNIDER'S SONS' CO. v. TROY. 1 
 
 1890. IN THE SUPREME COURT OF ALABAMA. 91 Alabama 
 
 Rep. 224-233. 
 
 This action was brought by the Louis Snider's Sons' Company, a 
 corporation created under the laws of Ohio, against D. S. Troy, and 
 was commenced on the i5th of February, 1890. The complaint 
 contained a single count, which claimed $827.92 for goods con- 
 sisting of paper and other printing materials, sold by plaintiffs in 
 March, April, May and July, 1888, to or on the order of the Dispatch 
 Publishing Company, then publishing a newspaper in the city of 
 Montgomery. The complaint alleged that said publishing company 
 was at the time a partnership, and defendant was one of the partners; 
 that the company claimed to be a corporation under the laws of Ala- 
 bama, but was never, in fact, incorporated; that it was insolvent when 
 plaintiff's account matured, and has ceased to do business. 
 
 The defendant filed a special plea, alleging that on the 2d day of 
 October, 1885, he and two other persons named, filed in the office of 
 the judge of probate of Montgomery county a declaration in writing 
 
 Arguments omitted.
 
 175 CORPORATIONS BY ESTOPPEL. 657 
 
 for the formation of a corporation under the name of the Dispatch 
 Publishing Company, stating the substance of the declaration, "all of 
 which will more fully appear by reference to the same, a copy of 
 which, with the indorsements thereon, is hereto attached as an ex- 
 hibit, and made a part of this plea ; that this defendant and his asso- 
 ciates, immediately after the filing of said declaration as aforesaid, 
 proceeded to organize said Dispatch Publishing Company, by elect- 
 ing a board of dii'ectors consisting of three members, as by law pro- 
 vided, and, on the organization of said company as aforesaid, com- 
 menced doing business under the name and style of the Dispatch 
 Publishing Company, by the publication of a newspaper in said city of 
 Montgomery ; that the debt now sued for was contracted by said com- 
 pany as such corporation, and not otherwise; that plaintiffs knew that 
 said company was doing business as a corporation, and made said 
 contract with it as a corporation, and not as a partnership or asso- 
 ciation of individuals, and dealt with it as a corporation, and sold 
 said bill of goods to it as a corporation, and not in any other capacity 
 whatsoever." 
 
 The court overruled a demurrer to this plea, and its judgment is 
 assigned as error. 
 
 CLOPTON, J. A corporation de facto exists, when from irregularity 
 or defect in the organization or constitution, or from some omission 
 to comply with the conditions precedent, a corporation de jure is not 
 created, but there has been a colorable compliance with the require- 
 ments of some law under which an association might be lawfully in- 
 corporated for the purposes and powers assumed, and a user of the 
 rights claimed to be conferred by the law when there is an organiza- 
 tion with color of law and the exercise of corporate franchises. Meth. 
 E. Un. Church v. Pickett, 48 N. J. L. 599. 
 
 The enabling law, under which a corporation for the purposes and 
 objects of the Dispatch Publishing Company, and with the powers 
 assumed, might have been lawfully created at that time, is contained 
 in sections 1803-1812 of the Code of 1876, and the amendatory acts, 
 which authorize and provide for the incorporation of two or more 
 persons desirous of forming a private corporation for the purpose of 
 carrying on any industrial or other lawful business not otherwise, spe- 
 cially provided for by law. Acts 1882-3, P- 4* The P^ ea avers 
 that defendant and two other named persons filed, September 2, 1885, 
 with the judge of probate of Montgomery county a written declara- 
 tion, signed by themselves, setting forth substantially the matters re- 
 quired by the statute, except the residences of the persons; that they 
 organized by the election of three directors, and commenced and 
 continued to do business in a corporate capacity, and were so doing 
 business when the debt sued for was contracted. If the averments of 
 the plea be true, the truth of which is admitted by the demurrer, the 
 Dispatch Publishing Company was an association having capital stock 
 divided into shares, organized by the election of officers, transacting 
 business and exercising franchises, functions and powers, after an at- 
 42 WIL. CASES.
 
 658 SNIDER'S SONS' co. v. TROY. 175 
 
 tempted incorporation as .if it were a corporation de jure a color- 
 able compliance with the requirements of an existing and enabling 
 law, and user of the rights claimed to be conferred thereby the essen- 
 tial elements of a corporation de facto. Cen. Agr. & Mech. Assn. 
 v. Alabama Gold Life Ins. Co., 70 Ala. 120. 
 
 Appellant seeks by the action to hold defendant, who was a mem- 
 ber, liable as a partner for paper and other supplies sold to the Dis- 
 patch Publishing Company. Whether the shareholders in a corporation 
 de facto are individually liable for the corporate debts, in the absence of 
 fraud or a statute, is a question as to which the authorities are in direct 
 antagonism. In Cook on Stock and Stockholders, 233, the doctrine 
 asserted is: "A corporate creditor, seeking to enforce the payment of 
 his debt, may ignore the existence of the corporation, and may pro- 
 ceed against the supposed stockholders as partners by proving that 
 the prescribed method of becoming incorporated was not complied 
 with by the company in question." The leading cases supporting 
 this doctrine are Bigelow v. Gregory, 73 111. 197; Abbott v. Omaha 
 Smelt. Co., 4 Neb. 416; Garrett v. Richardson, 35 Ark. 144; Ferris 
 v. Thaw, 72 Mo. 446; Richardson v. Mayo, 40 Ohio St. 9; Cole- 
 man v. Coleman, 78 Ind. 344. We have omitted reference to a few 
 cases sometimes cited, for the reason, either the question on liability 
 as partners was not before the court, as in Blanchard v. Kaull, 44 
 Cal. 440, or the debt was contracted before any steps were taken, 
 other than the mere filing of a certificate, toward organization, as in 
 Porpoise Fish Co. v. Bergen, 13 Amer. & Eng. Cor. Cas. i, or it 
 was contracted after the expiration of the charter by its own limita- 
 tion, without reorganization, as in Nat. Bank v. Landon, 45 N. Y. 
 410. In the case last cited the shareholders entered into a special 
 agreement which by its terms created a partnership as to third persons. 
 
 In 2 Morawetz on Corporations, 748, the doctrine is stated as fol- 
 lows: "If an association assumes to enter into a contract in a cor- 
 porate capacity, and the party dealing with the association contracts 
 "with it as if it were a corporation, the individual members can not be 
 charged as parties to the contract, either severally or jointly, or as 
 partners." The following cases maintain the doctrine that the mem- 
 bers of a corporation de facto can not be held liable as partners for 
 the corporate debts: Fay v. Noble, 7 Cush. 188; First Nat. Bank 
 v. Avery, 117 Mass. 476; Stout v. Zulick, 48 N. J. L. 599; Plan. 
 Uank v. Padgett, 69 Ga. 164; Mer. & Man. Bank v. Stone, 38 Mich. 
 779? Humphrey v. Mooney, 5 Cal. 282; Cen. City Sav. Bank v. 
 Walker, 66 N. Y. 424; Gartside Coal Co. v. Maxwell, 22 Fed. Rep. 
 197; Whiting v. Wyman, 101 U. S. 392. 
 
 The plea and demurrer do not raise the question of the liability of the 
 supposed stockholders as partners, where there has been no intention 
 or attempt to incorporate ; where they are acting as a body corporate, 
 without even color of legislative authority sheer usurpation. The 
 plea avers that the debt sued for was contracted by the Dispatch Pub- 
 lishing Company, which is alleged to have been a de facto corpora- 
 tion, and that plaintiff sold the goods to and contracted with the com-
 
 175 CORPORATIONS BY ESTOPPEL. 659 
 
 pany as a corporation, knowing that it was doing business as such. 
 The question before us, and the only question we propose to decide, 
 is, whether, there being no fraud alleged nor statute making the 
 stockholders individually liable, a creditor who has dealt with a de 
 facto corporation as a corporation, who has entered into contractual 
 relations with it in its corporate name and capacity, can disregard the 
 existence of the corporation, and, electing to treat it as a partnership, 
 enforce the collection of his debt from the stockholders individually ? 
 The conflicting authorities afford aid in the solution of this question 
 only so far as their opinions maybe in accord with settled. principles 
 and sustained by reason. Though it is an undecided question in this 
 state, principles have been well settled which materially bear upon 
 the inquiry, and mark the way to a correct conclusion. 
 ^Corporations may exist either de jure or de facto. If of the latter 
 class, they are under the protection of the same law and governed by 
 the same legal principles as those of the former, so long as the state 
 acquiesces in their existence and exercise of corporate functions. A 
 private citizen, whose rights are not invaded, who has no cause of 
 complaint, has no right to inquire collaterally into the legality of its 
 existence. This can only be done in a direct proceeding on the part 
 of the state, from whom is derived the right to exist as a corporation, 
 and whose authority is usurped. This principle was clearly and em- 
 phatically declared in Lehman v. Warner, 61 Ala. 455, in the fol- 
 lowing language: "The corporation must of necessity be presumed 
 to be rightfully in possession of the franchise, and rightfully to exer- 
 cise the power which the legislative grant confers. Individual right 
 is not invaded, if the negative is true in fact, and there is usurpation. 
 It is the state the sovereign whose rights are invaded and whose 
 r.ghts are usurped. The individual could not create the corporation, 
 could not grant, define, limit its powers, and no grant of these by 
 the sovereign can lessen his rights. There can consequently be no 
 cause of complaint by the citizen, and no right to inquire whether the 
 corporate existence is rightful de jure or merely colorable." Tay- 
 lor on Corp., 145; 4 Am. & Eng. Enc. of Law 198. The creditor 
 can not proceed against the stockholders as partners without proving 
 non-compliance with prescribed conditions precedent, thus inquiring 
 collaterally, not into the fact, but the legality of its existence. 
 
 It is also an established rule of general application that a party who 
 contracts with a corporation exercising corporate powers and perform- 
 ing corporate functions existing as a de facto corporation in its 
 corporate name and capacity, will not be permitted, in a suit on the 
 contract, to deny and disprove the rightfulness of its existence. 4 
 Am. & Eng. Ency. of Law 198. In Swartwout v. Michigan Air 
 Line R. Co., 24 Mich. 390, Cooley, J., declares the rule as follows: 
 "Where there is thus a corporation de facto, with no want of legis- 
 lative power to its due and legal existence, when it is proceeding in 
 the performance of corporate functions, and the public are dealing 
 with it on the supposition that it is what it professes to be, and the 
 questions are only whether there has been exact regularity and strict
 
 66o SNIDER'S SONS' co. v. TROY. 175 
 
 compliance with the provisions of the law relating to corporation, it 
 is plainly a dictate alike of justice and public policy, that in contro- 
 versies between the de facto corporation and those who have entered 
 into contract relations with it, as corporators or otherwise, that such 
 questions should not be suffered to be raised." 
 
 The general rule is thus stated in Brickell, C. J. : "Whoever 
 contracts with a corporation in the use of corporate powers and fran- 
 chises, and within the scope of such powers, is estopped from deny- 
 ing the existence of the corporation, or inquiring into the regularity 
 of the corporate organization, when an enforcement of the contract, 
 or of rights arising under it, is sought." Cahall v. Citizens' M. B. 
 Assn., 6 1 Ala. 232 ; Central Agr. & Mech. Assn. v. Alabama Gold Life 
 Ins. Co., 70 Ala. 120; Schloss v. Montg. Trade Co., 87 Ala. 411. 
 
 It is conceded that the rule has been invoked and applied most 
 frequently in suits against the stockholders or corporation, or persons 
 who have contracted with it, where the stockholder, corporation or per- 
 son is seeking to avoid a liability by denying the legality of the cor- 
 porate organization. But why should it not be applicable in other 
 cases? Why should a stockholder be estopped in a suit by a creditor 
 of an insolvent corporation to require payment of his unpaid sub- 
 scription, and the creditor allowed to ignore the existence of the cor- 
 poration, and proceed against the stockholder as a partner? Why 
 should not the estoppel be mutual? Taylor, in his "work on Corpora- 
 tions, section 148, having' stated the general rule, that a corporation 
 'when sued on its contract, and the person -who contracted -with it, 
 when sued on his contract, is each estopped to deny its legal incorpo- 
 ration, adds: ''Furthermore, persons ivho have contracted with 
 a corporation as such, and have acquired claims against it, are es- 
 topped from denying its corporate existence for the purpose of hold- 
 ing its shareholders liable as partners." And the same rule was 
 applied in several of the cases cited above, in which a corporate cred- 
 itor was seeking to hold the stockholder liable as a partner for a cor- 
 porate debt. The abrogation of the foregoing well-established rule is 
 the logical sequence of maintaining a suit by a creditor of a de facto 
 corporation, charging the stockholders as partners. 
 
 Another consideration. Section 8 of article xiv of the constitution 
 declares: "In no case shall any stockholder be individually liable, 
 otherwise than for the unpaid stock owned by him or her.". Exemp- 
 tion from liability, other than for unpaid stock, is the declared policy 
 of the state. It can not be imposed by legislation, or by the judgment 
 of court. In view of the constitutional provision, it is manifest tha* 
 the shareholders of the Dispatch Publishing Company intended, by 
 the attempt to incorporate, to avoid individual liability for the debts 
 contracted by the corporation. When a party deals and contracts 
 with a corporation as corporators, exemption from individual liability 
 enters as an element of the contract. It is true that the liability of 
 persons associated in an enterprise or adventure is not determinable 
 by the name they assume, but by the legal consequences of their acts. 
 A partnership may arise as to third persons, by mere operation of
 
 1/5 CORPORATIONS BY ESTOPPEL. 66 1 
 
 law, and contrary to the intention of the parties; but, to have this 
 effect, the elements essential to constitute a partnership as to third per- 
 sons must exist. A corporation de facto has an independent status, 
 recognized by the law as distinct from that of its members. A partner- 
 ship is not the necessary legal consequence of an abortive attempt at 
 incorporation. As said in Fay v. Noble, supra: "Surely, it can not 
 be, in the absence of all fraudulent intent, that such a legal result fol- 
 lows as to fasten on parties involuntarily, for sueh a cause, the enlarged 
 liability of co-partners, a liability neither contemplated nor assented to 
 by them. The statement of the proposition carries with it a sufficient 
 refutation." 
 
 Maintenance of such suit involves judicial nullification of 
 franchises and powers enjoyed and exercised by a de facto corpora- 
 tion, as a distinct entity recognized by the law, acquiesced in by the 
 state; defeats the corporate character of the contract ; changes the re- 
 lation from that of stockholders to that of partners; substitutes other 
 and new parties to the contract, and effects the imposition of an en- 
 larged liability, which they did not assume, but intended to avoid ; 
 so understood by the creditor when he contracted the debt with the 
 corporation as such. The contract is valid and binding on the cor- 
 poration, which the creditor trusted. No injustice is done him, for 
 all his rights and remedies are preserved by the principle that the 
 corporation and the shareholder are estopped from denying its legal 
 existence as against him. It will not answer to say that he is not repu- 
 diating, but enforcing the contract. He repudiates the party the 
 corporation with which he made the contract, and seeks its enforce- 
 ment against parties who never entered into contractual relations with 
 him. 
 
 The doctrine that a creditor who has dealt with a de facto corpora- 
 tion in its corporate capacity can not charge the stockholders as 
 partners with the corporate debt, there being no fraudulent intent al- 
 leged and proved, seems to us to be sustained by the weight of au- 
 thority, maintained by stronger reasoning, consistent with well settled 
 principles, and in harmony with the policy of the state. 
 
 Affirmed. 
 
 Note. See, 1882, Planters' and Miners' Bank v. Padgett, 69 Ga. 159 ; 1886, 
 Stout v. Zulick, 48 N. J. L. 599, 7 Atl. Rep. 362; 1889, Larned v. Beal, 65 N. 
 H. 184, 23 Atl. Rep. 149; 1892, Thornton v. Balcom, 85 Iowa 198, 52 N. W. 
 Rep. 190; 1896, Hogue v. Capital Nat'l Bank, 47 Neb. 929, 66 N. W. Rep. 1036; 
 1896, American Mirror and Glass Bev. Co. v. Bulkley, 107 Mich. 447, 65 N. 
 W. Rep. 291. See, also, cases, infra, p. 667. But see contra, 1886, Glenn v. 
 Bergmann, 20 Mo. App. 343; 1891, Stivers v. Carmichael, 83 Iowa 759, 49 N. 
 W. Rep. 983; 1892, Bradley Fertilizer v. South. Pub. Co., 17 N. Y. Supp. 587; 
 1895, Williams v. Hewitt, 47 La. Ann. 1076, 17 So. Rep. 496; 1901, Owensboro 
 Wagon Co. v. Bliss, Ala. , 31 So. 81; 1901, Clausen v. Head, 110 Wis. 
 405, 84 Am. St. Rep. 933, 85 N. W. 1028. See, also, .cases below, pp. 664, 076.
 
 662 GUCKERT V. HACKE. 1/6 
 
 Sec. 176. 
 
 (^) But dealers with a pretended corporation, without knowledge 
 that it, at the time, claims to be such, are not estopped to deny it 
 is a corporation. 
 
 GUCKERT v. HACKE ET AL., APPELLANTS. 1 
 
 1893. IN THE SUPREME COURT OF PENNSYLVANIA. 159 Pa. St. 
 
 Rep. 303-307. 
 
 Assumpsit against incorporators for the debt of a corporation. 
 
 At the trial before PORTER, J., it appeared that plaintiff entered 
 into a contract to make some alterations and repairs in a building oc- 
 cupied by the Hughes & Gawthrop Co. In October, 1890, a certifi- 
 cate of incorporation in proper form was presented by the Hughes & 
 Gawthrop Co. to the governor asking for a charter. The certificate 
 was approved and letters-patent were "duly issued. All the details 
 required by the act of April 29, 1874. P. L. 77, were complied with, 
 excepting only the recording of the certificate in the recorder's office 
 of Allegheny county. The certificate was not recorded until June, 
 1891. In the meantime, plaintiff, without knowledge of the incorpo- 
 ration, made the contract with Gawthrop, upon which he sued. Sub- 
 sequently, he accepted a note for the debt, signed with the corporate 
 name. 
 
 Defendant's points were as follows: 
 
 "i. The provisions of section 3 of the act of April 29, 1874, which 
 provides that 'original certificates with all indorsements thereon shall 
 then be recorded in the office of the recorder of deeds in and for the 
 county where the chief operations are to be carried on,' are merely 
 directory, and a failure to so record does not render the charter void 
 or render the subscribers thereto individually liable for debts con- 
 tracted by the corporation. Answer. The failure to record as stated 
 will not of itself render the stockholders individually liable." 
 
 "2. That from the moment the letters-patent were issued by the 
 governor of the commonwealth of Pennsylvania to the Hughes & 
 Gawthrop Co., the subscribers to the articles of association became a 
 corporation for every practical purpose, and any one dealing with 
 them as a corporation is estopped from impeaching the charter in a 
 collateral proceeding by showing that a condition precedent to the 
 existence of the corporation has not been complied with." Affirmed. 
 
 "3. If the jury find from the evidence that letters-patent were is- 
 sued to the defendants. by the governor of this commonwealth to act 
 as a corporation under the name of the Hughes & Gawthrop Co., 
 and they were actually engaged in carrying on business under such let- 
 ters-patent or charter, and that the contract sued on was made by E. 
 
 1 Arguments omitted.
 
 1/6 CORPORATIONS BY ESTOPPEL. 66j 
 
 B. Gawthrop, general manager of the Hughes-Gawthrop Co., and 
 that the plaintiff received the promissory note of Hughes-Gawthrop 
 Co., as a corporation, in payment of the amount due on said con- 
 tract, he can not now recover from Paul H. Hacke and J. B. George, 
 two of the defendants, as individuals." Affirmed. 
 
 Verdict and judgment against defendant, E. B. Gawthrop, and in 
 favor of Paul H. Hacke et at., the other defendants. Plaintiff ap- 
 pealed. 
 
 Opinion by MR. CHIEF JUSTICE STERRETT, December, 30, 1893: 
 
 It is essential to the creation of a corporation under an enabling 
 statute that all material provisions should be substantially followed; 
 and, exemption from personal liability being one of the chief charac- 
 teristics distinguishing corporations from partnerships and unincorpo- 
 rated joint stock companies, it follows that those who transact business 
 upon the strength of an organization which is materially defective are 
 individually liable, as partners, to those with whom they have dealt. 
 What provisions are material must be gathered from the relation of 
 each to the purpose and scope of the act; and when, therefore, suc- 
 cessive steps are prescribed for the creation of corporations, these 
 must obviously be regarded as imperative. Enabling statutes, on the 
 principle of expressio unius est exclusio alterius, impliedly prohibit 
 any other mode of doing the act which they authorize ; they must be 
 strictly construed. Sutherland on Stat. Construction, section 454. 
 Hence it has been uniformly held that requirements in respect of fil- 
 ing charters are imperative. Childs v. Smith, 55 Barb. 45 ; Smith v. 
 Warden, 86 Mo. 382; Abbott v. Smelting Co., 4 Neb. 416; Beach 
 on Corporations, section 162. 
 
 It is plain, even from a cursory reading of the act of April 29, 1874, 
 P. L. 77, that recording of the certificate "in the office for the recording 
 of deeds, and in and for the county where the chief operations are to be 
 carried on," was intended to be made one of the conditions precedent 
 to corporate existence. That was the last of successive steps re- 
 quired to be taken, and the right to begin the transaction of corporate 
 business was made to depend upon the taking of that step. "From 
 thenceforth," the act expressly declares, the subscribers and their as- 
 sociates and successors "shall be a corporation for the purposes and 
 upon the terms named in the said charter." One of the purposes 
 of the act being exemption from personal liability in the transaction 
 of business, it is obviously material that the public should have no- 
 tice, and notice by record was accordingly prescribed. Failure to re- 
 cord was failure to comply with one of the express conditions of in- 
 corporation, and consequently of exemption from liability. 
 
 It may be conceded that had plaintiff dealt with defendants as a 
 corporation he would have been estopped from claiming against them 
 in any other capacity, e-ven though they failed to record their charter, 
 Spahr v. Bank, 94 Pa. 429. But it is not pretended that he had 
 any knowledge of the existence of the charter; and there was cer- 
 tainly nothing, either in the name under which they did business or 
 in their conduct, which should have put him upon inquiry. In
 
 664 CINCINNATI, ETC., R. CO. V. DANVILLE, ETC., R. CO. 1/7 
 
 these circumstances he was amply justified in dealing -with them as 
 partners. It was through their default not his that they ivere so 
 treated; and it would be manifest injustice that he should lose his ad- 
 mittedly honest claim. 
 
 In the absence of an express agreement the acceptance of a note 
 from the defendants as a corporation, after plaintiff had performed 
 his part of the contract, can not operate by way of election or estop- 
 pel. The relation of the parties was fixed by their status when the 
 original contract was made and can not be changed by gratuitous infer- 
 ence. The members of the alleged corporation were the defendants, 
 and w r ere not injured by the acceptance of the note. The principle 
 which treats the acceptance of a note as additional security to and not 
 as satisfaction of a mechanic's lien (Jones v. Shawhan, 4 W. & S. 
 257) is, with even more justice, applicable here. 
 
 It follows from what has been said that the instructions complained 
 of are erroneous. 
 
 Judgment reversed and a venire facias de novo awarded. 
 
 Note. To same effect. 1889, Eaton v. Walker, 76 Mich. 579, 6 L. R. A. 102 ; 
 1896, N. Y. Nat'l Ex. Bank v. Crowell et al., 177 Pa. St. 313; 1899, Christian 
 & C. G. Co. v. Fruitdale L. Co., 121 Ala. 340, 25 So. Rep. 566. 
 
 Sec. 177. (5) Non-dealers who injure the corporation are es- 
 topped to deny corporate existence. 
 
 (#) In case of torts against the corporation. 
 
 THE CINCINNATI, LAFAYETTE AND CHICAGO RAILROAD CO. v. 
 THE DANVILLE AND VINCENNES RAILWAY CO. 
 
 1874. IN THE SUPREME COURT OF ILLINOIS. 75 Illinois Reports 
 
 113-118. 
 
 Appeal from the circuit court of Iroquois county, the Hon. Charles 
 H. Wood, J., presiding. 
 
 This was a bill for an injunction, filed by the appellant against the 
 appellee to restrain the latter taking possession of the railroad and 
 right of way of the complainant under certain fraudulent proceedings 
 for the condemnation of the same. 
 
 MR. JUSTICE MCALLISTER delivered the opinion of the court: 
 
 In the year 1871, certain persons, purporting to be twenty-five in 
 number, proceeded to organize themselves, under the general railroad 
 law of 1849, into the appellant corporation, for the purpose of sup= 
 plying a portion in this state of what was necessary to constitute a 
 complete line of railway between the cities of Cincinnati, O., and 
 Chicago, in this state. The amount of stock was fixed, was sub- 
 scribed and paid; directors were elected, articles of association pre.
 
 177 CORPORATIONS BY ESTOPPEL. 665 
 
 pared, subscribed, certified and filed with the secretary of state, and 
 the usual certificate given by that officer. 
 
 The portion of the line to be constructed was from a point on the 
 line between this state and Indiana, about three miles southeast of 
 Sheldon, in Iroquois county, thence running northeasterly through 
 that county and a portion of Kankakee county to the village of St. 
 Anne. 
 
 Appellant did not assume to exercise the right of eminent domain, 
 but obtained the right of way, so far as it was obtained, by purchase 
 or contract. It located the road between the points stated, and, by 
 about the middle of December, 1871, had it constructed, so that about 
 the ist of May, 1872, the through line, including the portion in ques- 
 tion, was opened for public use as a railroad, and appellant has not 
 only been in the exercise of its franchises as a railroad corporation, 
 but the same has been open, public and notorious. In November, 
 1872, this company reorganized under the general railroad act of this 
 state, which went into force March i, 1872. 
 
 It appears, also, that about the i3th of November, 1872, the ap- 
 pellee was organized under the last mentioned act as a railroad cor- 
 poration, to construct a road, in part at least, upon a route similar to 
 that of appellant. On the 22d of November, 1872, appellee, having 
 caused a survey of this line and a plat to be made, presented a petition 
 to the county court of Iroquois county for the purpose, ostensibly, of 
 condemning land through that county for its right of way. Numer- 
 ous tracts and parcels are described and the names of owners or pre- 
 tended owners given. Appellant is not named or described in the 
 petition. Nor was any notice to appellant given or contemplated. 
 Such proceedings were had upon this petition that a jury was sum- 
 moned to ascertain the compensation. About this time appellant dis- 
 covered that although "it was in the actual possession and use of the 
 right of way before mentioned as a common carrier, and this fact 
 must have been known to the agents and attorneys of appellee, yet 
 the land that appellee was about to have condemned was, in fact, the 
 very right of way of which appellant was in actual and open posses- 
 sion for public purposes, and to this circumstance there was not the 
 remotest allusion in appellee's petition. It appearing that there was 
 no necessity or even plausible excuse for thus interfering with appel- 
 lant's right of way, then, in view of the circumstances of appelhmt's 
 open and notorious possession of it, and the studious exclusion of all 
 these facts from appellee's petition, and the failure to make appellant 
 a party, with notice, the inference is irresistible that this proceeding 
 in the county court was designed for the fraudulent purpose of sur- 
 reptitiously gaining possession of appellant's right of way. The actors 
 in the formation of the scheme, as would seem from their positions 
 in argument on this appeal, reasoned in this wise: "Now, there are 
 defects in the organization of the Cincinnati, Lafayette and Chicago 
 Railroad Company; they have made a slip in some particulars, and if 
 we can so manage as to get a condemnation proceeding through the 
 court without notice to that company, and thereby get into possession,
 
 666 CINCINNATI, ETC., R. CO. V. DANVILLE, ETC., R. CO. 177 
 
 we can then assail their organization, convince the court that they can 
 have no standing in court on account of those defects, and thus keep 
 that possession, no matter how acquired." That is the very argu- 
 ment they urge here to sustain the decree of the court below dismiss- 
 ing appellant's bill to restrain them from thus obtaining possession, on 
 the ground of fraud and want of jurisdiction in the proceedings to 
 condemn. It is apparent from the fact of those proceedings, when 
 considered with the surrounding circumstances, that the former, 
 though ostensibly for the ordinary purpose of condemning land not ap- 
 propriated to the railroad uses, for appellee's rights of way, were, in 
 reality, but in the execution of a scheme devised for the fraudulent 
 and inequitable purpose of getting possession of appellant's right of 
 way without making compensation, and then to seize upon alleged 
 defects in appellant's organization as a means of retaining it against 
 justice and right. The morality of the act is supported by the same 
 reasoning which would be resorted to in justification of a contemplated 
 theft from one non compos mentis, "He is incapable of appearing in 
 court to vindicate his rights." 
 
 An elaborate printed argument has been presented by appellee's 
 counsel to show that appellant was not rightfully organized, and that 
 therefore it could acquire no right of way, and especially that it can 
 have no standing in court in its claim for protection against this con- 
 templated invasion of its possession. He says the act of 1849 was re- 
 pealed by the constitution of 1870. 
 
 There is, in our opinion, no basis for the position that the sections 
 of the act of 1849, so far as they provide for the formation of such 
 corporations, are abrogated by the constitution. They are not incon- 
 sistent with any of its provisions. Then, there being such a law au- 
 thorizing the formation of railroad corporations, and articles of associ- 
 ation having been prepared and filed with the secretary of state, and 
 he having given the certificate provided for, and there having been a 
 user of the franchises purporting to be invested in the association, the 
 latter became a de facto corporation, and under the settled law of this 
 court neither the eligibility of the directors nor the rightfulness of the 
 existence of the corporation could be inquired into collaterally in this 
 suit. Tarbell v. Page, 24 111. 46; Mitchel et aL v. Deeds, 49 111. 
 416; Thompson v. Candor, 60 111. 244. 
 
 In Mitchell v. Deeds, before cited, the court, page 422, said : "The 
 law is well settled in this state, that, under the plea of nul tiel corpo- 
 ration, the plaintiff need only show an organization in fact and a user 
 of corporate franchises." 
 
 So, by parity of reasoning, such organization in fact, and user, are 
 all that is necessary to maintain a bill in equity against a mere stranger 
 seeking to interfere with the property of such de facto corporation. 
 Here it was indisputably shown that there was such an organization 
 in fact, followed by user of corporate franchises. That was sufficient. 
 So, also, it was shown that the directors were elected under color of 
 authority and were acting as such. They were, therefore, de facto 
 officers of the corporation. Their title to the office could not be
 
 1/7 CORPORATIONS BY ESTOPPEL. 667 
 
 brought in question and decided collaterally in this suit. Lawson et 
 al. v. Kolbenson et al., 61 111. 418, and authorities there cited. 
 
 Appellee had authority to exercise the right of eminent domain, 
 but, by the statute prescribing the mode of its exercise, it could not 
 have appellant's right of way condemned for even a qualified or con- 
 joint use without describing it in the petition as such right of way, 
 and alleging inability to agree as to compensation. This proceeding, 
 which might, perhaps, have been lawful and proper but for circum- 
 stances which were studiously concealed, was for an inequitable pur- 
 pose. It was designed and carried forward for the purpose of getting 
 possession of the right of way, of which appellant was in quiet pos- 
 session as owner, without making appellant a party or paying to it 
 any compensation. No other object was intended by, and no other 
 result could follow, the carrying the proceeding through to a finality. 
 It was, in this view, a proper case for an injunction. In Goodenough 
 v. Sheppard, 28 111. 81, it was held that a person in the quiet pos- 
 session of real estate as owner may obtain an injunction to restrain 
 others from dispossessing him by means of process growing out of 
 litigation to which he was not a party. It does not lie with appellee 
 to say, in justification of this inequitable proceeding, that the ap- 
 pellant was not so far rightfully organized or authorized to con- 
 struct the railroad in question as to be capable of holding lands for 
 the purposes of a right of -way. This is a question solely between 
 appellant and the persons from whom title was obtained, or between 
 appellant and the people of the state, when proper proceedings shall 
 arise to require its decision. 
 
 It is obvious, from the record, that the court below made inquisition 
 into the rightfulness of appellant's corporate existence, and dismissed 
 the bill for defects in its organization. This was error. The decree 
 will be reversed, and cause remanded for further proceedings not in- 
 consistent with this opinion. 
 
 Decree reversed. 
 
 Note,. See, also, 1843, Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276 ; 1846, 
 Elizabeth City Academy v. Lmdsey, 28 N. C. (6 Ired.) 476. 45 Am. Dec. 500; 
 1873, Stockton & L. G. R. Co. v. Stockton & R. Co., 45 Cal. 680; 1878, Alder- 
 man v. School Directors, etc., 91 111. 179; 1889, Golden Gate M. & M. Co. v. 
 Joshua H. M. W., 82 Cal. 184; 1893, Crenshaw v. Ullman, 113 Mo. 633, 20 S. 
 W. Rep. 1077. But see, 1885, Doboy & U. I. Tel. Co. v. D. E. Magathias, -25 
 Fed Rep. (U. S. C. C.) 697.
 
 668 SASSER V. STATE OF OHIO. 178 
 
 Sec. 178. 
 
 (b) Or crimes affecting the corporation. 
 
 SASSER v. THE STATE OF OHIO. 1 
 1844. IN THE SUPREME COURT OF OHIO. 13 Ohio Rep. 453-489. 
 
 [These are writs of error to the court of common pleas of the 
 county of Hamilton. 
 
 In the first of these cases the plaintiff was indjcted for "having in 
 his possession, and secretly keeping, a bank-note plate, for the pur- 
 pose of striking and printing false and counterfeited bank-notes, to 
 wit, false and counterfeited bank notes in the likeness and similitude 
 of true and genuine bank notes of the Bank of Tennessee, of the 
 denomination of $20," etc. The second count was the same, with 
 the addition that the possession was for the purpose of printing coun- 
 terfeited bank notes. At the October term, 1844, he was found guilty 
 on the second count, and not guilty on the first, and sentenced, upon 
 the second count, to imprisonment in the penitentiary for five years. 
 A bill of exceptions was taken during the trial, from which it appears 
 that the prosecuting attorney proved, by parol, that there was such a 
 bank as the one named in the indictment, and that its bills, of the de- 
 nomination specified, were current in Ohio. The plaintiff objected 
 to this proof, and insisted that the act incorporating the Bank of Ten- 
 nessee was the only evidence that could be introduced; which objec- 
 tion was overruled.] 
 
 BIRCHARD, J. * * * Did the court err in admitting the testimony ob- 
 jected to ? This presents a question not free from difficulty, and yet the 
 decision below is believed to be consistent with the uniform and oft- 
 repeated adjudications upon similar questions since the first organiza- 
 tion of the state. The general rule is, that the best evidence must be 
 given which the nature of the case admits of. The rule does not re- 
 quire that the strongest possible assurance of the point in question 
 shall be given, but that no evidence shall be received of a character 
 which presupposes that better and higher evidence is in the possession 
 or power of the party offering it. Were these banks suitors in court, 
 claiming the exercise of corporate rights, the offer by them of parol 
 proof to maintain the right, unless it were a right acquired by pre- 
 scription, would be within the rule, for it would carry a presumption 
 against them, that, if produced, their charters would show that the 
 franchise in question was not conferred. Hence the rule in Lewis v. 
 Bank of Kentucky, 12 Ohio Rep. 151: "The corporators have full 
 knowledge of their powers and capacity, and the means of establishing 
 them." When they exercise powers under the authority of a written 
 charter, the non-production of that charter and the attempt to supply 
 
 1 Statement of facts abridged. Arguments omitted, and part of opinion 
 omitted.
 
 178 CORPORATIONS BY ESTOPPEL. 669 
 
 it by parol evidence is an indirect admission that the charter is suffi- 
 cient, and that, if they can not make out by parol a better one than 
 exists on paper, they must fail. An analogous point was ruled by 
 Lord Mansfield, in Roe v. Harvey, 7 Burr. 2484. No such implica- 
 tion necessarily arises when parol proof of the actual existence of a 
 bank in a sister state is offered by a third party, and especially when 
 offered by the public prosecutor against a person charged with coun- 
 terfeiting the bills or plates of such bank, because the act of counter- 
 feiting implies, on his part, an admission that there is such a bank, 
 and that its genuine issues and plates are authorized and of value. It 
 is irrational to presume that men will take the trouble to counterfeit 
 paper which is wholly worthless. All men are presumed to act ac- 
 cording to their interest. No one could have any interests in forging 
 valueless notes. Rules of law are never founded upon unnatural 
 premises. On the contrary, it is, in general, safe to abolish a rule, 
 when the sound reason upon which it was established has ceased to 
 exist. 
 
 Admitting the proposition, that if the bank notes in question were 
 issued by an unauthorized bank they would be nullities, and that, in 
 that case, the plates might be secretly kept without incurring the pen- 
 alty of the law, it does not follow that the evidence offered below was 
 incompetent. The rules of presumptive evidence apply to corpora- 
 tions as well as individuals, and a charter may be presumed from the 
 long exercise of corporate rights. U. S. Bank v. Dandridge, 12 
 Wheat. 70. The proof offered in this case showed that paper of the 
 description alleged to be counterfeited was current in Ohio, and reputed 
 to be the paper of legally established institutions of Virginia and Ten- 
 nessee. Proof that their paper had obtained general circulation and 
 acquired universal confidence in a state like this, at a time when pub- 
 lic attention is turned towards all corporations, both foreign and 
 domestic, with eager and jealous scrutiny, certainly raised a violent 
 presumption that the banks had a legitimate existence, and lawfully 
 possessed the powers which they had exercised. Coupled with the 
 other legal presumption, that no one will counterfeit the valueless 
 paper of an unauthorized bank, and we think the proof, unrebutted, 
 sufficient for the prosecution. This made out a prima facie case, 
 and was ample to cast upon the accused the burden of proving that 
 the laws of Virginia and Tennessee restricted banking generally, or 
 by these institutions in particular. The People v. Davis, 21 Wend. 
 309, is a case in point. Davis was indicted for having in his pos- 
 session a counterfeit note of the Morris Canal and Banking Company, 
 and the question was whether the prosecution were bound to prove 
 the existence of the company by the production of the charter, and it 
 was held they were not that they might prove it in the ordinary way, 
 and "that secondary evidence, such as the acts and operations of the 
 company, and the like, had been invariably received at the oyer and 
 terminer." Is there any real danger in continuing this rule of evi- 
 dence? It may be presumed that, if it were palpably mischievous, 
 or, even by possibility, occasionally dangerous in practice, it would
 
 6/O SASSER V. STATE OF OHIO. 1/8 
 
 not have stood without question for forty years in Ohio, and in 
 many of our sister states for a still longer period. But this case even 
 does not show that injustice has been caused by its application. We 
 know, as a matter of fact, that each of the two institutions is legally 
 constituted, and recognized as such, by the courts of Virginia and 
 Tennessee. No actual wrong was committed by the decision com- 
 plained of, because the proof offered established nothing that was un- 
 true. It is attacked, not for the individual wrong it has wrought in 
 this case, but for the public good, lest, peradventure, it may work 
 harm hereafter to somebody if allowed to stand as a precedent. 
 
 In argument, it is admitted that parol proof has hitherto "always 
 been held sufficient in similar cases; but, it is said, this is because 
 counsel have not objected that it was secondary evidence, and that omis- 
 sions of counsel should not be allowed to establish a rule of practice, 
 in opposition to the paramount principles of law." If the argument 
 be sound that this kind of evidence, when offered by a third party, 
 does not raise the inference that higher evidence, in the possession of 
 the party, is withheld, and if the act of forgery implies a confession, 
 by the forger, that the instrument which it purports to imitate is valid, 
 it can not well be said to be secondary evidence, because it does not 
 fall within the reason that distinguishes the two classes of proof. Is 
 it always within the power of the prosecutor to prove the charters of 
 banks incorporated by our sister states ? That they may be procured 
 by taking sufficient pains and ample time is not doubted. Certified 
 copies of any legislative act may be had on application to the execu- 
 tives of the states of Virginia and Tennessee. But under our consti- 
 tution, an accused person is entitled to "a speedy public trial." He 
 can not lawfully be detained, and committed for trial, without evi- 
 dence. Nor is that evidence, on a question of commitment, which is 
 no evidence on a final trial. What, then, would be the effect of a 
 rule that would, indispensably, require the production of the act in- 
 corporating a foreign and distant bank in like cases? It would afford 
 immunity to crime in innumerable cases. It would be as fatal to the 
 success of many necessary prosecutions for counterfeiting as a rule 
 that would permit the forged signature of the officer of a bank to be 
 disproved by him alone a rule which has long since ceased to be rec- 
 ognized by the most enlightened tribunals of this country, and, at this 
 day, is not law in England. Hess v. The State, 5 Ohio Rep. 7; 
 Commonwealth v. Gary, 2 Pick. 47. 
 
 Some courts still consider the testimony of experts touching the 
 genuineness of the handwriting as secondary and inferior evidence to 
 the testimony of the supposed writer; others avoid the general rule 
 by assuming that the testimony of each is primary evidence, while all 
 alike admit the evidence and avoid the application of the rule which 
 would exclude it. So, in cases of many public officers, proof of offi- 
 cial character is permitted by parol when third parties make the 
 issue, and even when the officer is a party. Thus one may show him- 
 self to be a constable by proving his own acts in that capacity, and by 
 general reputation ; Johnson v. Stedman, 3 Ohio Rep. 94, That he
 
 178 CORPORATIONS BY ESTOPPEL. 6/1 
 
 is a collector of taxes; Eldred v. Sexton, 5 Ohio Rep. 215. The rea- 
 son of the decision in these cases is applicable here. "It is more con- 
 sistent with the ends of justice than to establish a contrary rule." It 
 is not conclusive evidence, but is so prima facie, and, unless contra- 
 dicted, must be conclusive. The character of a bank, indeed, whose 
 paper is in general circulation, performing the offices of money in a 
 business community like ours, becomes as well known as the official 
 character of a constable or tax-gatherer who resides amongst us. The 
 people in general are as well informed upon the subject as upon many 
 matters of public history. There is no county in the state where men of 
 integrity can not be found competent to state whether paper, the money 
 in general circulation among the people, is the paper of a real or unau- 
 thorized institution. The continuance of the rule that has obtained 
 is, therefore, perfectly consistent with the security of individual right ; 
 and, while it subserves public convenience, the mere fact it is at war 
 with a technical rule, if it be so at war, furnishes no good reason for 
 changing the practice. * * * 
 Judgment affirmed. 
 
 Nate. See, also, 1886, Stultz v. Turnpike Co., 48 N. J. L. 596; 1893, Canal 
 Street G. R. Co. v. Paas, 95 Mich. 372. But compare, 1888, Plank-road Co. v. 
 Hilton, 69 Mich. 115; 1899, James v. State, 77 Miss. 370, 78 Am. St. Rep. 527. 
 
 As to injuries to non-dealers generally by the apparent corporation, it 
 would seem that if they have done nothing to recognize the corporate exist- 
 ence there could be no estoppel ; yet if the corporation shows it is a de facto 
 one, the logic of the cases would seem to be that a non-dealer who is not 
 estopped could not bold members individually liable, or successfully impeach 
 the corporate existence, even if he is injured by such de facto corporation ; 
 however, if the apparent corporation can not show that it has acquired a de 
 facto existence by being organized under a valid law, in good faith, followed 
 by corporate acts, a non-dealer could ignore the apparent corporate existence. 
 
 NOTE TO ART VI. EXTENT OF THE DOCTRINE OF ESTOPPEL. 
 
 It is usual to say that in order to obtain a de facto corporate existence there 
 must be a valid law under which to organize, an apparent compliance with the 
 law, a bonafide attempt to organize under the law, and a user of corporate 
 franchises. See Elliott on Corporations, 72; Clark on Corporations, 
 41, 42, and Finnegan v. Noerenberg, supra, p. 614, and Society Perun v. 
 Cleveland, supra, p. 617. If, therefore, any of these elements are wanting 
 there can be no de facto corporation, and the only ground for holding a pre- 
 tended corporation, where one or more of these elements is wanting, to be 
 such must be upon grounds of estoppel, or something analogous thereto. It 
 seems, however, that there is no perfect basis for an estoppel except against 
 the pretended corporation itself or its members, for it or they only have mis- 
 led others to believe it to be a corporaton. No one who contracts with such 
 a pretended corporation as a corporation, has misled it or its members as to 
 its real nature, for they know as much about it as he. The most that can be 
 said is that the party so contracting is willing to accept the corporate security 
 for the performance of the contract, and should not afterward be allowed to 
 insist upon a different security, such as the individual or partnership liability 
 of the members. The fact is, he has not misled the corporation, hut it has 
 misled him yet, perhaps, not to his damage, when he willingly accepted the 
 corporate security. Hence it would not be equitable to claim a greater secu- 
 rity, when, upon being offered a certain security, viz., the corporate security, 
 he accepted it. This is hardly an estoppel, but rather a mere term of tlie
 
 6/2 
 
 NOTES TO ARTICLE VI. 
 
 contract upon which the minds of the parties met, although it was false in 
 fact and known to be so by the pretended corporation at the time. 
 
 As to the validity of the law under which the corporation claims to be organ- 
 ized there are three conceivable conditions : (1) A law in fact prohibiting 
 such a corporation. (2) No law at all. (3) An unconstitutional law. It 
 would seem there could be no de facto corporation in either case, and it is 
 generally so held. Can there be a corporation by estoppel? .According to the 
 decision'iu Boyce v. The Trustee, etc., supra, p. 642; Jones v. Aspen Hard- 
 ware Co., supra, p. 637, and Snyder v. Studebaker, supra, p. 634, there could 
 not be a corporation under any circumstances of estoppel, either in favor 
 of or against the pretended corporation ; but it would seem that estoppels 
 might arise in all of these cases, as well as others ; yet in the first two 
 a prohibitory law, and no law at all public policy might override all grounds 
 of estoppel and say, in such cases, no corporate existence should be recog- 
 nized. See Wright v. Lee, 2 S. D. 596: Empire Mills v. Alston Grocery Co., 
 15 S. W. Rep. (Tex. App.) 200, 505; Building and Loan Assn. v. Chamber- 
 lain, 4 S. D. 271, 56 N. W. Rep. 897 ; Oregonian R. Co. v. Oregonian R. & N. 
 Co., 23 Fed. Rep. 233; but compare, 1870, Smith v. Sheeley, 12 Wall. (U. S.) 
 358, and 1883, Saunders v. Farmer, 62 N. H. 572; 1898, Carroll v. National 
 Bank, 19 Wash. 639, 54 Pac. Rep. 32. 
 
 But in the third case the unconstitutional law many cases hold there can 
 be corporations by estoppel (many erroneously calling them de facto corpora- 
 tions). See, 1870, Smith v. Sheeley, 12 Wall. (U. S.) 358; 1876, St. Louis v. 
 Shields, 62 Mo. 247 ; 1878, McCarthy v. Lavasche, 89 111. 270, supra, p. 253 ; 
 1878, Dows v. Naper, 91 111. 44; 1880, Freeland v. "Insurance Co.", 94Ta. StI 
 504; 1881, McClinch v. Sturgis, 72 Maine 288; 1883, Saunders v. Farmer, 62 N. 
 H. 572 ; 1884, Catholic Church v. Tobbein, 82 Mo. 418, on 424 ; 1887, Fresno, etc., 
 Irrigation Company v. Warner, 72 Cal. 379, 17 A. & E. Corp. Cas. 37; 1889, 
 Winget v. Quincy B. & H. Assn., 128 111. 67; 1892, Wright v. Lee, 2 S. D. 596, 
 37 Am. & E. C. C. 588; 1893, Building & L. Assn. v. Chamberlain, 4 S. D. 271, 
 44 Am. & E. C. C. 49; 1893, Black River Improvement Co. v. Holway, 85 
 Wis. 344; 1894, Georgia S. & F. R. Co. v. Mercantile T. & D. Co., 94 Ga/306; 
 1895, Coxe v. State, 144 N. Y. 396; 1898, Gardner v. Minn. & S. L. R. Co., 
 73 Minn. 517, 76 N. W. Rep. 282; 1899, Richards v. Minn. Sav. Bank, 75 Minn. 
 196, 77 N. W. Rep. 822; but compare, 1889, Eaton v. Walker, 76 Mich. 579, 
 contra. 
 
 As to the next two requisites of de facto existence apparent compliance 
 with the law, and bonafide attempt to organize both being questions of fact, 
 it would seem that estoppels should be allowed to arise as in other cases. But 
 in both of these cases it should be remembered that the law will not allow its 
 privileges to be used, even if literally followed, as an engine for accomplish- 
 ing frauds (see Metcalf v. Arnold, supra, p. 97), or without any effort in good 
 faith to comply with it (as, see Montgomery v. Forbes, supra, p. 594, and 
 Walton v. Oliver, supra, p. 565). 
 
 As to user, it seems that meeting, subscribing stock and completing organ- 
 ization is sufficient user to make a de facto existence, if the other elements are 
 present. See, 1893, Union Water Co. v. Kean, 52 N. J. Eq. Ill, 44 Am. & E. 
 C. C. 13. But no organization, though corporate powers are claimed, is not 
 such user as makes a corporation de facto See Walton v. Oliver, supra, p. 565, 
 and Montgomery v. Forbes, supra, p. 594. In Eaton v. Walker, 76 Mich. 579, 
 it was held that organization under an unconstitutional law, and assuming to 
 net as a corporation, was not such riser as made a de facto existence, and, un- 
 der the facts of that case, it was held that no estoppel arose. See Angell & 
 Ames, 83, 172, 635-6; Beach, 13, 14, 866, 871; Boone, 104, 118, 121, 
 239; Clark, 43, 44; Cook, 637; Elliott, 81-88; Morawetz, 750, 774, 
 778 n ; Taylor, 146-151,537-9,739; I Thompson, 518-533; VII Thompson, 
 8213. The matter is closely allied to the subject of pleading and proof, upon 
 which the cases are in much conflict. See, infra, 327-333.
 
 179 PARTNERSHIP LIABILITY. 673 
 
 ARTICLE VII. EFFECT OF FAILURE TO COMPLY WITH CONDITIONS, 
 AND NO ESTOPPEL, UPON THE LIABILITY OF MEMBERS OF THE 
 PRETENDED CORPORATION ; THEORIES. 
 
 Sec. 179. (i) Makes the associates partners (if the pretended 
 corporation was for a business purpose) and liable as such, or 
 with the rights of such. 
 
 MARTIN ET AL., APPELLANTS, v. FEWELL. 1 
 
 1883. IN THE SUPREME COURT OF MISSOURI. 79 Missouri Rep. 
 
 401-412. 
 
 HOUGH, C. J. This is an action of assumpsit by plaintiffs as 
 partners against defendants as partners. There are three counts in 
 the petition. The first is to recover judgment for goods alleged to 
 have been sold by plaintiffs to defendants, March 30, 1877, amount- 
 ing to $553.89; the second count is for goods sold August 14, 1877, 
 amounting to $72.09, and the third is for goods sold October 9, 1877, 
 amounting to $422.40. In addition to the usual averments as to the 
 sale and delivery of goods, each count contains substantially the fol- 
 lowing allegations: That at the time of said sales the defendants 
 were partners in the retail mercantile business in Calhoun, Henry 
 county; that one M. Woods was the general agent of defendants, and 
 was by them authorized to conduct, manage and superintend said 
 business, to buy and sell goods and merchandise, and to do all things 
 in and about said business as fully as if he were himself sole owner 
 thereof, and to do all things usual and customary to be done by mer- 
 chants carrying on that sort of business ; that M. Woods, as such 
 agent, and with the knowledge and approbation of these defendants, 
 carried on said business under the name "M. Woods," and the de- 
 fendants had no other partnership designation ; that prior to Decem- 
 ber, 1876, plaintiffs had had dealings with said defendants, and had 
 sold and delivered to them goods and merchandise, through Woods as 
 defendant's agent; that plaintiffs had at no time business transactions 
 with Woods in any other capacity than as agent for defendants. 
 
 The answer contains a general denial, and also alleges that the 
 goods in the petition mentioned were sold and delivered by plaintiffs 
 to the "Calhoun Grange Store Company," a duly organized corpora- 
 tion of Missouri, and not the defendants; that the certificate of incor- 
 poration was duly filed in the recorder's office of Henry county, on 
 
 the day of , 1876, and on May 18, 1877, a similar certificate 
 
 was filed with the secretary of state, and on the same day the said 
 secretary executed to said Calhoun Grange Store Company a certifi- 
 cate of incorporation as provided by law. The replication is a gen- 
 eral denial of the new matter pleaded in the answer. * 
 
 1 Only part of the opinion given. 
 43 WIL. CASES.
 
 6/4 MARTIN V. FEWELL. 1/9 
 
 At the request of the defendants, the court gave the following in- 
 structions: 
 
 1. If the jury believe from the evidence that prior to the sale of 
 any goods by the plaintiffs to Woods for the grange store in question, 
 the defendants had, for the purpose of organizing a business corpora- 
 tion for running and conducting what is commonly known as a grange 
 store, agreed to subscribe and pay shares of stock to such organization, 
 and did take such stock with such understanding and for such pur- 
 pose, and took initiative measures for the incorporation of said busi- 
 ness, and organized as if incorporated, and elected directors for the 
 management and control of said association, and designated said 
 Woods to conduct and superintend said store for such directors, and 
 did make and acknowledge the articles of association read in evidence, 
 and at the time of the first sale of any goods by plaintiffs to said 
 Woods, said defendants, through directors, were acting under the 
 said articles of association as a corporation, and not otherwise, and 
 the said Woods had no authority from them to buy goods except as 
 the agent of said association, then, although said articles of incorpo- 
 ration may not have been filed and recorded as by statute provided, 
 the defendants are not liable as partners to the plaintiffs for any goods 
 bought of them by said Woods. 
 
 2. Even though the articles of association read in evidence were 
 not filed with the secretary of state, yet, if defendants were acting 
 alone under such articles of association, claiming to be a corporation, 
 such omission to file the same with the secretary of state did not, of 
 itself, make the defendants liable as partners for any goods bought for 
 the store after said articles were actually drawn up, signed and ac- 
 knowledged. * * * 
 
 The court, of its own motion, gave the following instruction to the 
 jury: 
 
 If you believe from the evidence that the defendants, or some of 
 them, in the fall of 1875, or in the spring of 1876, made an agreement 
 with each other to contribute money or capital for the purpose of car- 
 rying on the business of buying and selling merchandise for their 
 mutual profit, and that they did so contribute and carry on said busi- 
 ness, either personally or by their agent, then such of defendants as 
 did these things became and were partners in such business, and each 
 partner was individually liable for all the partnership debts, provided 
 that it does not further appear from the evidence that they did not 
 intend to act and carry on business as partners, but that they intended 
 to do business as an incorporated company and each one to be liable 
 only for the amonnt of his stock. 
 
 Upon the giving of these instructions the plaintiffs took a nonsuit, 
 and on the refusal of the court to set the same aside, they appealed to 
 this court. * * * 
 
 The only question remaining to be determined is whether, on the 
 facts stated in the first and second instructions given at the instance of 
 the defendants, and in the instructions given by the court of its own 
 motion, the defendants are liable as co-partners. Neither the case of 
 Hurt v. Salisbury, 55 Mo. 311, nor that of Richardson v. Pitts, 71
 
 179 PARTNERSHIP LIABILITY. 6/5 
 
 Mo. 128, relied upon by the counsel for the plaintiffs, furnishes a dis- 
 tinct answer to this inquiry. The first case was a suit upon a note 
 executed by certain individuals as directors assuming' to represent a 
 corporation which had no legal existence, and this court held that the 
 parties who signed the note were liable thereon. In the case last 
 named certain members of an inchoate corporation, whose incorpora- 
 tion was incomplete by reason of a failure to file the articles of associa- 
 tion with the secretary of state, advanced money for the benefit of the 
 joint enterprise under obligations incurred by them upon the supposi- 
 tion that the association was duly incorporated, and they were ad- 
 judged to be entitled to contribution from their associate members 
 beyond the amount of stock severally subscribed for by such associ- 
 ates. The effect of this decision is to create the relation and liability 
 of partners as between the members of an unincorporated association, 
 so far as the debts of the association contracted in good faith and paid 
 by any of its members are concerned, and to establish a different rule 
 from that laid down in Ward v. Brigham, 127 Mass. 24. The de- 
 cision of this court is supported by the cases of Hill v. Beach, 12 N. 
 J. Eq. 31 ; Hodgson v. Baldwin, 65 111. 532; Flagg v. Stowe, 85 111. 
 164. Vide, also, Ferris v. Thaw, 72 Mo. 446. 
 
 In Pettis v. Atkins, 60 111. 454; Bigelow v. Gregory, 73 111. 197; 
 Abbott v. Smelting Co., 4 Neb. 416; Frost v. Walker, 60 Maine 
 468; Wells v. Gates, 18 Barb. 554; National Union Bank v. Lan- 
 don, 45 N. Y. 410, and Tappan v. Bailey, 4 Met. 529, it is held that 
 members of an unincorporated association, notwithstanding their sub- 
 scription and payment for a specified number of shares of the capital 
 stock of the association, are liable as co-partners for the debts of the 
 association. These decisions we regard as applicable to the case at 
 bar. By reference to the testimony it will be seen that in 1875, more 
 than a year before the articles of association were signed by the de- 
 fendants, the store was established and shares of stock were subscribed 
 for and Woods was appointed to make the purchases and superintend 
 the sales. All this was done, it is true, with the understanding that 
 the promoters of the enterprise were to become a corporation, and the 
 purpose of the promoters undoubtedly was to limit their liability to 
 the amounts severally subscribed by them. 
 
 If by reason of an unexecuted intention to become a corporation 
 the defendants could carry on the business of merchandising from 
 1875 until May, 1877, without incurring in the meantime the liability 
 of partners, we do not see why they could not have continued so to 
 act as a corporation for a much longer period, buying and selling 
 through an agent, and enjoying all the privileges of a corporation 
 without being liable to be sued as such. No mere intention on the 
 part of the members of an unincorporated association to be a corpo- 
 ration -will suffice to restrict their individual liability to that imposed 
 by the statute upon corporate shareholders. Not being a corporation, 
 their liability can not be a corporate liability, but must be that of a 
 joint-stock company, unless the provisions of the statute in relation 
 to limited partnerships shall have been complied with, of -which
 
 6/6 MARTIN V. FEWELL. 1/9 
 
 there is not even the slightest intimation in this case. There is no 
 question but that the goods -were purchased by Woods of the plaintiffs 
 for the defendants, and went into the store of the defendants, and 
 were sold by Woods for their benefit, and a ruling which would turn 
 the plaintiffs out of court, and compel them to collect the whole 
 amount of their claims from Woods, or the directors in charge, who 
 could in turn go against the defendants for contribution under the 
 decision of this court in Richardson v. Pitts, supra, would be not 
 only manifestly unjust, but utterly indefensible. Under the logic of 
 the case last cited, the defendants are liable as partners directly to the 
 plaintiffs for the debts of the association incurred before they became 
 incorpoi'ated. 
 
 For the dents incurred after they became a corporation, their lia- 
 bility will depend upon the fact of actual notice of their incorpora- 
 tion to the plaintiffs at the time such debts were incurred. When 
 partners have dealt as such with a seller, and after becoming incor- 
 porated, continued to deal as before, having their bills made in the 
 same way, without giving any notice of their altered condition, they 
 will continue to be liable as partners, unless the seller have knowl- 
 edge thereof derived from some other source. Whether the plaintiffs 
 had such notice or knowledge is a question of fact for the jury. 
 
 For the reasons given, the judgment will be reversed, and the cause 
 remanded. All the judges concur. 
 
 Note. See, 1857, Abbott v. Aspinwall, 26 Barb. (N. Y.) 202; 1858, Hill v. 
 Beach, 12 N. J. Eq. 31 ; 1866, Medill v. Collier, 16 Ohio St. 599 ; 1874, Stowe v. 
 Flagg, 72 111. 397; 1874, Whipple y. Parker, 29 Mich. 369; 1877, FJagg v. 
 Stowe, 85 111. 164; 1878, Jessup v. Carnegie, 12 Jones & S. (N. Y.) 260; 1880, 
 Ferris v. Thaw, 72 Mo. 446; 1881, Coleman v. Coleman, 78 Ind. 344; 1881, 
 Kaiser v. Lawrence Sav. Bank, 56 Iowa 104, 41 Am. Rep. 85; 1883, Clegg v. 
 Hamilton & W. Co. G. Co., 61 Iowa 121 ; 1884, Robinson v. Harris, 5 Ky. L. 
 R. 928 ; 1884, Bamberger v. White, 6 Ky. L. R. 292 ; 1885, Smith v. Warden, 86 
 Mo. 382; 1891, Empire Mills v. Alston Grocery Co., 4 Texas App. 346, 12 L. R. 
 A. 366; 1895, Taylor v. Branham, 35 Fla. 297", 17 So. Rep. 552; 1895. Jones v. 
 Aspen Hardware Co., 21 Colo. 263, 52 Am. St. Rep. 220, supra, p. 637; 1896, 
 Lehman v. Knapp, 48 La. Ann. 1148, 20 So. Rep. 674 ; 1896, New York Nat'l Ex. 
 Bank v. Crowell, 177 Pa. St. 313, 35 Atl. Rep. 613; 1897, Liebold v. Green, 69 
 111. App. 527; 1898, Weir Furnace Co. v. Bodwell, 73 Mo. App. 389; 1899. 
 Hequembourg v. Edwards, 155 Mo. 514, 50 S. W. Rep. 908; 1899, Christian & 
 C. G. Co. v. Fruitdale L. Co., 121 Ala. 340, 25 So. Rep. 566. But see, supra, 
 p. 625. Beach, 162; Clark, 45; Elliott, 83; Morawetz, 748; Taylor, 
 148, 739; I Thompson, 218, 506; III Thompson, 2940, 2968-2993.
 
 180 PARTNERSHIP LIABILITY. 6/7 
 
 Sec. 180. (2) Does not result in a partnership liability; but if 
 any liability, either a corporate one, or one resting only upon 
 those who have participated in the acts, or authorized them 
 to be done, or ratified them. 
 
 FAY AND ANOTHER v. NOBLE AND OTHERS. 
 
 1851. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 7 
 Cushing's (Mass.) Rep. 188194. 
 
 This was a replevin for seventy-two tons of pig iron. The defend- 
 ants pleaded the general issue, and specified in defense a title in them- 
 selves under a mortgage from the West Boston Iron Company. 
 
 At the trial in the court of common pleas, before Wells. C. J., 
 the following facts were in evidence: "Prior to May, 1848, Leonard 
 Fuller and one Kendall owned and carried on at Boston a machine 
 shop and an establishment for making iron castings. On the 22d of 
 March, 1848, they, with others, were incorporated as a manufactur- 
 ing corporation, under the name of the West Boston Iron Company, 
 for the purpose of carrying on the same business (St. 1848, ch. 70, 8 
 Special Laws 879) ; and in May, 1848, attempted to and supposed 
 they did organize as such corporation ; and Fuller and Kendall then 
 transferred the real and personal estate employed by them in said 
 business to the corporation, receiving payment therefor in shares of 
 stock in the corporation. The shares so received by Fuller amounted 
 to more than three-fourths of the whole number of shares into which 
 the capital stock purported to have been divided. From the time of 
 this supposed organization until November, 1848, Fuller acted as the 
 general agent of the company, and, on the 25th of September, 1848, 
 purporting to act in that capacity, borrowed money of the plaintiffs, 
 gave the note of the company therefor, and conveyed the pig iron in 
 question to the plaintiffs as collateral security for its payment. 
 
 The plaintiffs put into the case the records of said supposed organ- 
 ization and of the proceedings under the same, and contended that, from 
 an inspection of these records, it appeared the company had not been 
 legally organized as a corporation; and so the court rules against the 
 objection of the defendants. Two witnesses, called by the plaintiffs, 
 testified, in answer to questions by the defendants, that the proceed- 
 ings therein recorded were truly set forth. To this evidence the 
 plaintiffs objected, but the judge admitted it as evidence of the actual 
 agreement of the associates among themselves whether they were to 
 be regarded as corporators, as partners or otherwise, as to the manner 
 in which the business should be transacted and of the extent of the 
 authority given to Fuller as their agent. 
 
 In November, 1848, a reorganization of the company as a corpo- 
 ration took place, and on the i4th of that month the corporation so 
 reorganized conveyed all their property to the defendants by the mort-
 
 678 FAY V. NOBLE. 1 80 
 
 gage relied on by the defendants, who took possession under this mort- 
 gage of the iron in controversy. 
 
 The plaintiffs requested the judge to instruct the jury, among other 
 things, that, as there had been no legal organization of the corpora- 
 tion at the time of the conveyance to the plaintiffs, the parties then 
 holding shares therein and conducting the business for their common 
 benefit were in law to be deemed partners, and could not, by any 
 agreement among themselves limit the power of the members as such 
 so as to affect the plaintiffs, unless knowledge of such limitation was 
 brought home to the plaintiffs, the burden of proving which was on 
 the defendants; that Fuller, as one of the partners and the managing 
 partner and principal owner, had full powers to give the notes of the 
 company to raise money and pledge their property for the payment 
 thereof ; and that although Fuller dealt with the plaintiffs as agent, 
 they were not estopped to show and avail themselves of the fact that 
 he was actually a partner and principal owner. 
 
 The presiding judge submitted the case to the jury, with instruc- 
 tions upon this point, of which the following is the material part: 
 
 "The proceedings, prior to November, 1848, did not prove a legal 
 organization of the corporation, and consequently no corporate acts 
 were done prior to November, 1848, when the new organization was 
 effected. But, although not acting as a corporation, the individual as- 
 sociates were acting as an association connected together for the pur- 
 pose of carrying on business ; this association was riot necessarily a 
 partnership, with the usual powers and liabilities of a partnership, 
 but it was a question of fact what were the terms of this agreement of 
 association ; and it being testified and proved that the writings offered 
 as records of the corporation contained a true statement of the acts of 
 the associates, these writings were admissible evidence to prove the 
 actual agreement of the associates as between themselves ; and it was 
 for the jury, from this and other evidence, to determine what this 
 agreement of association was. If it was a partnership without any 
 limitation as to the powers of the individual members, each partner 
 had a right to bind the partnership by a contract made for partnership 
 purposes ; and among other powers, had a right to borrow money in 
 the name of the partnership, and pledge the partnership property as 
 security for repayment. It was, however, competent for partners to 
 limit the powers of individual members of the company by an agree- 
 ment that the conduct of the business should be confided wholly to 
 the management of agents chosen for that purpose ; and where this 
 was done, a partner not selected as agent could not bind the company 
 by an agreement with an individual who knew the fact that the power 
 of transacting the business of the concern had been delegated to these 
 agents." 
 
 The jury returned a verdict for the defendants, and the plaintiffs 
 excepted. 
 
 BIGELOW, J. Upon the evidence introduced at the trial of this case 
 in the court below, the presiding judge ruled that prior to November, 
 1848, there was no legal organization of the corporation called the
 
 180 PARTNERSHIP LIABILITY. 679 
 
 West Boston Iron Company, and therefore no corporate acts were 
 done prior to that time. The whole case was tried and submitted to 
 the jury on this assumption. As this point was so ruled at the request 
 of the plaintiffs, and as the verdict was in favor of the defendants, no 
 exception was taken thereto, and we are not called upon to determine 
 its correctness. 
 
 The plaintiffs contended and asked the court to rule that inasmuch 
 as there had been no legal organization of said corporation prior to 
 November. 1848, the parties holding shares in said unorganized cor- 
 poration were in law to be deemed co-partners and subject to all lia- 
 bilities as such. The court did not give this precise instruction to the 
 jury, but directed them in substance that said parties, by virtue of 
 their being subscribers for and holders of stock in said company, were 
 either general co-partners, with the usual powers and liabilities as 
 such, or co-partners acting under certain restrictions and limitations 
 as to the rights and duties of individual members and through an 
 agent with limited authority, and it was left to the jury to determine 
 upon the nature and character of this co-partnership, and also the au- 
 thority of Fuller as agent or co-partner to act in its behalf. 
 
 It seems to us, upon careful consideration of the case, that these 
 instructions were not warranted by the facts proved, and although 
 they do not form the precise ground of the exceptions taken by the 
 plaintiffs, yet we think them so erroneous as to render it necessary to 
 order the case to a new trial. 
 
 We are not aware of any authority, certainly none was cited at the 
 argument, to warrant the instruction that in consequence of an omis- 
 sion to comply with the requisitions of law in the organization of a 
 corporation, by which its proceedings were rendered void, persons 
 who had subscribed for and taken stock in the company thereby be- 
 came co-partners. The doctrine seems to us to be quite novel and 
 somewhat startling. Surely it can not be, in the absence of all fraud- 
 ulent intent (and none was proved or alleged in this case), that such 
 a legal result follows as to fasten on parties involuntarily, for such a 
 cause, the enlarged liability of co-partners ; a liability neither contem- 
 plated nor assented to by them. The very statement of the proposi- 
 tion carries with it a sufficient refutation. No such result can follow 
 unless a principle of law be established, founded on no authority, and 
 required by no public exigency. Corporations are known and recog- 
 nized legal entities, with rights and powers clearly defined and well 
 understood, and wholly distinct and different from those of individuals 
 and co-partnerships. Persons who subscribe for and take stock in them 
 are subject to certain fixed and limited liabilities, which they volunta- 
 rily assume, and these liabilities are not to be extended and enlarged 
 so as to affect innocent parties beyond the letter of the law. A co- 
 partnership can not take upon itself the functions of a corporation, 
 nor can a corporation or its members be made subject to the liabilities 
 of a copartnership, in the absence of all statutory provisions imposing 
 such liabilities. The personal liability of the members of a joint- 
 stock company or co-partnership is inconsistent with the character and
 
 680 FAY V. NOBLE. 
 
 nature of a corporation, of which the law properly recognizes only 
 the creature of the charter, and knows not the individuals. Ang. & 
 Ames on Corp., 535, 536. On looking into Revised Statutes, ch. 
 38 and 44, to the provisions of which the corporation in question was 
 made subject, we find various enactments by which officers and mem- 
 bers are made individually liable for debts contracted by corporations 
 in case of non-compliance with certain requisitions ; but no provision 
 is made by which such individual liability attaches by reason of any 
 omission to organize in the manner prescribed by law. The statute, 
 it is true, prescribes the mode of organization, but it annexes no pen- 
 alty or liability to the neglect or omission to comply with it. We are 
 unable to see, therefore, any principle of law upon which the instruc- 
 tions given to the jury on this point can rest. 
 
 It follows, as a necessary consequence of what we have already 
 said, that the records of the corporation were improperly admitted and 
 submitted to the jury as evidence of an agreement or understanding 
 among the shareholders in the corporation as to their own rights and 
 liabilities as members of a co-partnership, and of the extent of author- 
 ity given to Fuller as agent of such co-partnership. They were not 
 made or kept for any such purpose. They were only the records and 
 by-laws of a corporation, not the agreements of individuals, in the na- 
 ture of articles of co-partnership ; and they could have no legitimate 
 tendency to prove the facts for which they were offered and used at 
 the trial. 
 
 Without examining at greater length the rulings of the court set out 
 in the bill of exceptions, we think it manifest that the whole trial pro- 
 ceeded under a misapprehension. If the court were correct in decid- 
 ing that there -was no organization of the corporation, and that all its 
 proceedings were void, the case resolved itself into a few simple ele- 
 ments. Being unorganized, and incompetent to act as a corporation, 
 it could not create agents , or confer any aitthority on any one to act in 
 its behalf, and therefore all those who acted or purported to act as its 
 agents were acting without authority. There was no principal to 
 appoint an agent. It is a familiar principle of law that a person 
 who acts as agent withoiit atithority or without a principal is him- 
 self regarded as a principal, and has all the rights and is subject to 
 all the liabilities of a principal. Story on Agency, section 264. If a 
 person, purporting to act as agent of a corporation which had no 
 valid existence, makes contracts and does other acts as its agent, he 
 becomes the principal, and is personally liable therefor. If he pur- 
 chases property, as agent, without authority, the title vests in him, so 
 far at least as regards third persons, and he has the sole right to dis- 
 pose of it to others. Story on Agency, section 264^, note ; Hampton 
 v. Speckenagle, 98. & R. 212. Applying this principle to the case 
 at bar, it is very clear that Fuller was not the agent of a co-partner- 
 ship, for none existed; he was not the agent of individuals, as such, 
 because he was not authorized to act; he was not the agent of the 
 West 'Boston Iron Company, because if the court were right in decid- 
 ing that it had never organized, and that its proceedings were void,
 
 180 PARTNERSHIP LIABILITY. 68 1 
 
 it never had the power to appoint him agent. Clearly, then, he 
 acted -without authority from any one. If he purchased, he pur- 
 cJuised for himself. In him only did the property vest, and as 
 against all but the vendors he had the sole right to dispose of it to 
 others. In this view, the question of co-partnership which was sub- 
 mitted to the jury was wholly immaterial, and diverted their atten- 
 tion from the real point in issue. We are therefore of opinion that 
 there was a mistrial, and that the verdict must be set aside and a new 
 trial had at the bar of this court. 
 
 To same effect, 1879, Ward v. Brigham, 127 Mass. 24; First National Bank 
 v. Almy, 117 Mass. 476; Trowbridge v. Scudder, 11 Gush. 83; 1892, Ruther- 
 ford v. Hill, 22 Ore. 218, 29 Am. St. R. 596; Humphreys v. Mooney, 5 Colo. 
 282; Gartside Coal Co. v. Maxwell, 22 Fed. Rep. 197. 
 
 See the following oases holding there is not necessarily a partnership liabil- 
 ity ; many, however, are cases of estoppel. 1846, State v. How, 1 Mich. 
 (1 Man.) 512; 1872, Blanchard v. Kaull, 44 Gal. 440; 1874, Fuller v. Rowe, 57 
 N. Y. 23; 1880 Humphreys v. Mooney, 5 Colo. 282; 1884, Garteide Coal Co. 
 v. Maxwell, 22 Fed. Rep. (U. S. C. C.) 197 ; 1885, Johnson v. Corser, 34 Minn. 
 355; 1890, Snider's Sons' Co. v. Troy, 91 Ala. 224, supra, p. 656; 1890, Cory v. 
 Lee, 93 Ala. 468, 8 So. Rep. 694; 1892, Rutherford v. Hill, 22 Ore. 218, 29 Am. 
 St. R. 596; 1894, Railroad Gazette v. Wherry, 58 Mo. App. 423; 1894, Wilson 
 Cotton Mills v. C. C. R. Cotton Mills, 115 N. C. 475; 1895, Clark v. Richard- 
 son, 17 Ky . L. Rep. 514, 31 S. W. Rep. 878 ; 1895, First National Bank v. Harper, 
 61 Minn. 375, 63 N. W. Rep. 1097 ; 1805, American Mirror & G. B. Co. v. Bulk- 
 ley, 107 Mich. 447, 65 N. W. Rep. 291; 1896, First Nat'l Bank v. Dovetail B. 
 &'G. Co., 143 Ind. 534, 42 N. E. Rep. 924; 1896, Gow v. Collen & P. L. Co., 109 
 Mich. 45, 66 N. W. Rep. 676 ; 1896, Hogue v. Capital Nat'l Bank, 47 N. B. 929, 
 66 N. W. Rep. 1036; 1897, Sentell v. Hewitt, 50 La. Ann. 3, 22 So. Rep. 970; 
 1898, Cole v. Great B. L. & L. Co., 8 Kan. App. 860, 54 Pac. Rep. 920; 1899, 
 Richards v. Minn. Sav. Bk., 75 Minn. 196, 77 N. W. Rep. 822. See, also, 
 supra, p. 625; text-book references, supra, p. 672.
 
 TITLE IV. THE BODY CORPORATE, ITS ANATOMY, INTERNAL 
 STRUCTURE AND CONSTITUTION. 
 
 CHAPTER 8. 
 
 MEMBERS, PARTS, ORGANS OF ACTION, WITH THEIR FUNC- 
 TIONS AND MUTUAL RELATIONS. 
 
 SUBDIVISION I. MEMBERS, INTEGRAL PARTS AND ORGANS OF 
 
 ACTION. 
 
 ARTICLE I. MEMBERS. 
 
 Sec. 181. Necessity of members. 
 
 "It is plain that a joint-stock company or trading corporation can 
 not possibly exist without stockholders or members. It would be a 
 contradiction in terms to speak of an association existing without as- 
 sociates composing it." i Morawetz, 33. 
 
 Note. See, also, supra, 96, 97. 
 
 Sec. 182. Acquisition of membership, 
 (i) Non-stock companies. 
 
 THE AMERICAN LIVE STOCK COMMISSION COMPANY v. THE 
 CHICAGO LIVE STOCK EXCHANGE. 1 
 
 1892. IN THE SUPREME COURT OF ILLINOIS. 143 111. Rep. 210- 
 241, 36 Am. St. Rep. 385. 
 
 [Bill by commission company against stock exchange for an in- 
 junction.] 
 
 MR. CHIEF JUSTICE BAILEY. * * * The live stock exchange is a cor- 
 poration, not for pecuniary profit, organized March 13, 1884, under the 
 laws of this state, the* objects for which it was organized, as declared 
 by its articles of incorporation, being: "To establish and maintain 
 a commercial exchange; to promote uniformity in the customs and 
 
 1 Statement of facts abridged and rearranged. Arguments omitted, and 
 only so much of opinion given as relates to the single point. 
 
 (682)
 
 1 82 ACQUISITION OF MEMBERSHIP. 683 
 
 usages of our merchants ; to provide for the speedy adjustment of all 
 disputes between its members; to facilitate the receiving of live stock, 
 as well as provide for good management and the inspection thereof, 
 thereby guarding against the sale or use of unsound or unhealthy 
 meats ; to secure to members a corporation in furtherance of their 
 legitimate purposes." Said corporation has no capital stock, and is 
 itself engaged in no commercial business, but limits its corporate en- 
 terprise to furnishing to its members facilities for carrying on, each 
 for himself, the business of buying, selling and dealing in live stock, 
 meats and other like commodities, and to adopting and enforcing by- 
 laws, rules and regulations by which the business of its members shall 
 be conducted and governed [pp. 2256]. 
 
 The complainant is a joint-stock corporation, organized May 3, 1889, 
 under the laws of this state, with a capital stock of $100,000, divided 
 into shares of $100 each, the shareholders consisting principally, if 
 not exclusively, of persons and firms engaged in the business of ship- 
 ping live stock to the Union Stock Yards at Chicago for sale. The 
 principal office of said corporation is located at the stock yards, and 
 the objects for which said corporation was formed, as declared by its 
 articles of incorporation, are as follows: 
 
 'To engage in the business of buying, selling and handling live 
 stock upon commission at the Union Stock Yards, state of Illinois, and 
 at such other points throughout the United States as may be deemed 
 advisable, and also to encourage the stockholders of said corporation 
 to raise, improve, feed and ship to market live stock; and in order to 
 better effectuate said latter object, it is hereby expressly stipulated and 
 agreed by and between the parties hereto, that the net earnings of 
 said corporation shall be distributed among the stockholders thereof 
 annually in the following manner, to wit: Sixty-five per cent, of said 
 net earnings shall be distributed to said stockholders in the ratio of 
 the number of stock shipped by each stockholder to the said corpora- 
 tion for sale during the current year for which said dividend shall be 
 declared, and the remaining 35 per cent, of said net earnings shall be 
 distributed to the shareholders in said corporation in the ratio of the 
 amount owned by each shareholder in said corporation. It is hereby 
 further expressly agreed and stipulated that no one person shall have 
 the right to subscribe for or own more than twenty-five shares of stock 
 in said corporation at any time during the existence of said proposed 
 corporation." 
 
 Said corporation, on being organized, appointed Rogers as its man- 
 ager, and he applied for admission as a member of the exchange, 
 and was admitted a member thereof, his initiation fee being paid by 
 the presentation of an outstanding certificate of membership which 
 had been purchased with the money of the complainant. The evi- 
 dence shows, and upon this point there seems to be no dispute, that 
 when Rogers applied for membership no disclosure was made by him 
 as to the plan upon which the complainant corporation was organ- 
 ized, and particularly the obligation which it assumed by its articles 
 of incorporation, to distribute annually among its shareholders sixty-
 
 684 AMERICAN, ETC., CO. V. CHICAGO, ETC., EXCHANGE. 182 
 
 five per cent, of its net earnings, in the proportion of the number of 
 live stock shipped by each to said corporation for sale. Rogers was_ 
 admitted to membership upon investigation by the exchange of his 
 own personal character and credit, and in ignorance of this peculiar 
 feature of the scheme upon which the corporation represented by him 
 was organized. 
 
 The complainant thereupon embarked in the business of receiving 
 consignments of live stock, both from its shareholders and others, and 
 in selling the same on commission at the stock yards, the rates of 
 commission charged by it in all cases being in conformity to the 
 schedule of rates established by the exchange. Said business was 
 managed by Rogers, who, being a member of the exchange, was en- 
 abled to avail himself in the management of said business of all the 
 privileges which such membership afforded. 
 
 In November, 1889, the complainant having realized a considerable 
 sum of money as the net profits of its business up to that time, dis- 
 tributed such net profits to its shareholders as required by its articles 
 of incorporation, and the exchange being informed of such distribu- 
 tion, and regarding it as a virtual evasion of its rules establishing min- 
 imum rates of commissions, instituted proceedings against the com- 
 plainant and its manager for a violation of its rules. Rogers set up, 
 in defense of these charges, in substance, that the complainant was not 
 a member of the exchange nor subject to its jurisdiction ; that so far 
 as his action as a member of the exchange was concerned he had 
 strictly conformed to said rules by charging and collecting the rates of 
 commissions thereby established, and having collected them, he had 
 accounted for and paid the same over to his principal, the complain- 
 ant, as it was his legal duty to do, and that he had no responsibility 
 for the disposition which the complainant had subsequently seen fit to 
 make of the same. These suggestions seem to have been acquiesced 
 in by the exchange, as the proceedings against both the complainant 
 and its manager appear to have been thereupon abandoned. 
 
 The exchange, however, for the purpose, as may well be presumed, 
 of protecting itself against similar evasions of its rules in the future, 
 amended its eighth rule so as to provide, in substance, that no person 
 should be received for membership in the exchange who, in any man- 
 ner, acts for or represents any other live stock corporation whose char- 
 ter, regulations, rules or by-laws provided for discrimination in rates 
 or charges for commissions between stockholders and other patrons 
 or customers, whether under the guise of dividends, drawbacks or any 
 other scheme or device whatever, and that no member of the exchange 
 should act as agent or otherwise for any live stock corporation whose 
 charter, regulations, rules or by-laws provide for such discrimination, 
 and subjecting a member thus offending to suspension or expulsion. 
 At the same time rule nine was so amended as to prohibit all mem- 
 bers of the exchange from buying any live stock or causing the same 
 to be bought, at the stock yards from any corporation or live stock 
 company which is or may be regularly selling live stock for non-resi- 
 dents on commission, unless some one or more of the stockholders of
 
 1 82 ACQUISITION OF MKMBKRSHIP. 683 
 
 such company are members of the exchange in good standing [pp. 
 230-2]. 
 
 The case sought to be made by the complainant is presented under 
 two aspects: First, it is claimed that, either by itself or through its 
 general manager, the complainant is or is entitled to lie admitted a 
 member of the exchange, and it accordingly prays for an injunction 
 restraining the exchange from taking any steps to try the complainant 
 for a violation of its rules, or to impose upon the complainant's privi- 
 leges as a member any illegal or unreasonable restraints, and it 
 also prays that the certificate of membership in Roger's hands be is- 
 sued to the complainant. Secondly, it claims that if it is not a mem- 
 ber and entitled to the privileges of membership, the exchange should 
 be restrained from putting in force certain rules it has adopted for the 
 government of its own members, and particularly its amendments to 
 rules 8 and 9. 
 
 We are unable to see upon what principle it can be justly claimed 
 that the complainant is a member of the exchange or entitled to the 
 privileges of membership, or that it is in a position where it can insist 
 upon being admitted to membership as a matter of right. Whatever 
 may have been its rights while Rogers, its manager, was a member, 
 those rights no longer exist, as by its own admission Rogers is no 
 longer its manager, and is no longer a member of the exchange. Nor 
 can there be any just pretense that the complainant itself is a member 
 or has ever applied for membei'ship. The exchange is a corporation, 
 having rules or by-laws determining the qualifications for member- 
 ship and prescribing the mode in which members may be admitted, 
 and there is no pretense that the complainant has ever brought itself 
 within the terms of said rules or by-laws, so as to be entitled to mem- 
 bership. Rule 8 of the exchange provides as follows: 
 
 "On and after May i, 1884, any person of good character and 
 credit and of legal age, whose interests are centered at the Union Stock 
 Yards, on presenting a written application indorsed by two members, 
 and stating the name and business avocation of the applicant, after 
 ten days' notice of such application shall have been posted on the bul- 
 letin of the exchange, may be admitted to membership in the associa- 
 tion upon approval by at least seven affirmative ballot-votes of the 
 board of directors, and upon payment of an initiation fee of $500, or 
 on presentation of a certificate of unimpaired or unforfeited member- 
 ship duly transferred, and by signing an agreement to abide by the 
 rules, regulations and by-laws of the association, and all amendments 
 that may in due form be made thereto." 
 
 Said association had an undoubted right to adopt this rule, and as 
 it prescribes the mode and the only mode in 'which membership in the 
 exchange can be obtained, no one can justly claim to be a member who 
 has not been admitted in the mode thus prescribed. 
 
 It may well be questioned whether, under this rule, a corporation 
 in its corporate character can be admitted to membership in the ex- 
 change, as said rule seems to contemplate only the admission of nat- 
 ural persons. But even if that were otherwise, there is no pretense
 
 686 AMERICAN, ETC., CO. V. CHICAGO, ETC., EXCHANGE. 182 
 
 that the complainant itself has ever made application for membership, 
 or that any of the subsequent steps necessary to vest an applicant 
 with the character and rights of membership have been taken, or that 
 they have resulted favorably to the complainant. Nor is it pretended 
 that since Rogers ceased to be the complainant's manager, and thereby 
 ceased to be its representative on the exchange, any formal applica- 
 tion for membership has been made by Titus, its general manager, or 
 by any other person in its behalf, but the evidence, on the other hand, 
 is clear and undisputed that no such application has been made. The 
 fact alleged in the bill, if it be a fact, that the complainant has re- 
 quested the exchange to issue the certificate of membership formerly 
 held by Rogers to Titus avails the complainant nothing, as the ex- 
 change is under no obligation to admit a member upon such request, 
 but can, in conformity with its rules, admit to membership only upon 
 formal application duly presented and approved in the manner in 
 said rules prescribed. The equitable or even legal ownership of the 
 unimpaired or unforfeited certificate of membership formerly issued 
 to Rogers and duly transferred to it, does not constitute it a member, 
 or entitle it to any rights as such. The only 'way in which the com- 
 plainant can avail itself of such certificate, is by tendering it in lieu 
 of the prescribed initiation fee in case the complainant or its repre- 
 sentative, on proper application, shall be admitted to membership, 
 or, in case such application should not be granted, then by selling 
 it for a consideration to some other person who may desire to become 
 a member. 
 
 It may also be noticed, in immediate connection with the point now 
 under consideration, that a court of chancery has no power to order 
 the exchange to issue the certificate of membership formerly held by 
 Rogers to the complainant or its general manager, so as to constitute 
 it or him a member. Before an applicant can become a member his 
 application must, among other things, be indorsed by two members, 
 and must receive the approval of at least seven members of the board 
 of directors, voting by ballot. Members and directors of such corpo- 
 rations, in acting upon applications for membership, are necessarily 
 entitled to a freedom which is not subject to judicial compulsion. No 
 two members can be compelled to indorse an application, nor can any 
 seven members of the board of directors be compelled to vote in its 
 favor, but both are entitled to act upon their own judgment and ac- 
 cording to their own choice. In other words, a court of chancery will 
 not undertake to force upon a corporation of this character a member 
 against the will of those whose duty it is to pass upon applications for 
 membership. 
 
 The complainant then, not being a member of said exchange, nor 
 entitled, either directly or indirectly, to any of the rights arising from 
 membership therein, the question is presented whether it can complain 
 of any of the rules adopted by the exchange for the government of the 
 conduct of its own members, or invoke the aid of a court of equity to 
 restrain their enforcement [pp. 227230], * * * 
 
 Held, it can not. 
 
 Judgment affirmed.
 
 1 83 INTEGRAL PARTS. ./ 68/ 
 
 M</ 
 Sec. 183. Same. (2) Stock companies. 
 
 (A.) By subscription. 
 ( I ) Statutory contract. 
 
 See Sedalia, etc., Co. v. Wilkerson, supra, p. 459; Philadelphia Savings 
 Institution, supra, p. 464; Coppage v. Hutton, supra, p. 469. 
 
 Sec. 184. Same. (2) Common law contracts. 
 
 i . Agreements to subscribe. 
 See Thrasher v. Pike, supra, p. 471 , Strasburgh v. Echternacht, supra, p. 473. 
 
 2. Agreements subscribing. 
 
 Bryant's Pond, etc., v. Felt, supra, p. 474 ; Hudson Real Estate Co. v. Tower, 
 supra, p. 478; Peninsular Co. v. Duncan, supra, p. 482; Tonica, etc., Ry. v. 
 McNeely, supra, p. 491 ; Minneapolis Co. v. Davis, supra, p. 492. 
 
 3. Agreement with promoter. 
 
 Minneapolis Co. v. Davis, supra, p. 492; San Joaquin Land Co. v. West, 
 supra, p. 497 ; West v. Crawford, supra, p. 500. 
 
 4. Underwriting. 
 In re Licensed Victuallers, supra, p. 502. 
 
 5. Application, allotment, etc. 
 In re Florence Land & Pub. Works Co., supra, p. 504. 
 
 Sec. 185. Same. (B.) Transfer, see infra % p. 1654, et seq. 
 
 Sec. 186. Same. (C.) Estoppel, see supra, p. 510. 
 
 ARTICLE II. INTEGRAL PARTS. 
 
 Sec. 187. In general. 
 
 "Many aggregate corporations are composed of distinct parts, 
 which are called integral parts, without any one of which the cor-
 
 688 ROSE V. TURNPIKE CO. 1 88 
 
 poration would not be comptete, although none of them are by 
 themselves a corporation. Thus, where a corporation consists of 
 a mayor, alderman and commonalty, the mayor, the alderman 
 and the commonalty are three integral parts ; but neither of them 
 has any corporate capacity distinct from the other two, and, there- 
 fore, the mayor can not, in his political character of mayor, take 
 in succession anything as a sole corporation ; nor the aldermen, as 
 a select body, take anything to them and their successors as an ag- 
 gregate corporation. In many aggregate corporations there is 
 one particular person, who is called the head, and who forms one 
 of the integral parts ; such is the mayor of a city corporation, and 
 the chancellor in the general corporations of the English universi- 
 ties. The corporation of St. Mary's church, in Philadelphia, con- 
 sisting of three clerical and eight lay members, was considered by 
 the court to be a corporation, composed of two distinct classes or 
 integral parts. 1 " Angell and Ames, Corporations, 97. 
 
 Sec. 188. Same. 
 
 "A corporation was founded by the name of Brothers and Sisters, 
 and all the Sisters are dead, and the Brothers make lease, and held 
 void, for then it was no corporation." Manwood v. Lovelace, 
 Time of Queen Eliz., 6 Viner's Abr. 282, 12. 
 
 Sec. 189. Same. Directors are not integral parts. 
 ROSE v. TURNPIKE CO.* 
 
 1834. IN THE SUPREME COURT OF PENNSYLVANIA. 3 Watts (Pa.) 
 
 Rep. 46-49. 
 
 [Action of assumpsit by the Turnpike Company against Rose. By 
 the act of incorporation a president, six managers and a treasurer were 
 to be elected for one year and until such other officers should be 
 chosen ; and meetings were to be held on the first Monday of June 
 of each year for that purpose, ''and at such other times as they shall be 
 summoned by the managers, in such manner and form as shall be 
 prescribed by their by-laws." The first election was held September 
 4, 1827; the next August 28, 1828; the next September 8, 1829, and 
 afterward on the first Monday of June, 1830, 1831 and 1832, and suit 
 was brought after the last date. The defendant contended that in 
 consequence of the neglect to elect officers on the day fixed by the 
 
 1 7 Serg. & R. 517. 
 
 1 Statement of facts abridged. Arguments and parts of opinion omitted.
 
 1 89 INTEGRAL PARTS. 689 
 
 charter previous to 1830, dissolved the corporation and the suit could 
 not be maintained.] 
 
 SERGEANT, J. The principle seems to be settled in England that 
 a corporation is dissolved when an integral part is gone and the re- 
 maining parts are incapable of restoring it or of doing any corporate 
 act. The question seems chiefly to have arisen in relation to munici- 
 pal corporations composed of mayor, alderman and burgesses, insti- 
 tuted for the government of towns in their judicial concerns, police 
 or trade. When these corporations have fallen into such a state by 
 the loss of an integral part that they are incapacitated from continu- 
 ing their succession or accomplishing the purpose for which they 
 were created, the crown has treated them as dissolved and granted a 
 new charter. To prevent the occurrence of a dissolution, when the 
 mayor or head officer was an integral part, and there was a failure to 
 elect, the statute n Geo. i, ch. 4, was passed, providing for an elec- 
 tion on another day. 
 
 Our corporations bear little resemblance to the English municipal 
 corporations, either in design or constitution. The present, like many 
 of our corporations for civil purposes, either by special act of assem- 
 bly or under the act of I79 1 ? is n t a corporation composed of several 
 integral parts. The stockholders constitute the company, and the 
 managers and officers are their agents, necessary for the conduct and 
 management of the affairs of the company, but not essential to its 
 existence as such nor forming an integral part. The corporation ex- 
 ists per se, so far as is requisite to the maintenance of perpetual suc- 
 cession and holding and preserving its franchises. The non-existence 
 of the managers does not imply the non-existence of the corporation. 
 The latter is dormant during that time ; its functions are suspended 
 for want of the means of action, but the capacity to restore its func- 
 tionaries by means of elections remains. 
 
 The total dissolution of a body politic, its political death and reso- 
 lution into its original elements, would be attended with such moment- 
 ous consequences that it ought not lightly to happen. Not only would 
 it affect its property right and responsibilities, but the beneficial pur- 
 poses for which it was created would be frustrated, and the com- 
 munity as well as individuals holding stock be injured. No class 
 of corporations would be exempt. Whether religious, charitable 
 or literary; whether for turnpikes, bridges, banks, insurances, canals, 
 railroads or any other purpose, all must be embraced within the rule, 
 and if by accident, inadvertence or design there is one omission to 
 elect managers on the day appointed, or the election made is void, 
 the whole edifice of the corporation falls into ruins, and can only be 
 constructed by legislative interference; even then, perhaps, after a 
 lapse of time, and with some doubts as to its power to revest former 
 rights and to restore its identity. I see no reason why the company 
 may not retain all their rights, powers and privileges, though there be 
 a suspension of the power of action; nor why this power of action, 
 though dormant for a time, may not be revived by a new election of 
 
 44 WIL. CASKS.
 
 690 ORGANS OF ACTION. 190 
 
 the managers and officers competent to carry on its affairs conform- 
 ably to the directions of the charter. That may be done on the day 
 appointed by the act, it not being required that the managers, officers 
 or any other persons should preside at or do any act in reference to 
 the election which is conducted entirely under the control of the stock- 
 holders. * * * 
 
 ARTICLE III. ORGANS OF ACTION. 
 
 Sec. 190. In general. 
 
 "As has been stated by Kyd, there are three different kinds of 
 assemblies in corporations, which he styles legislative, electoral 
 and administrative. I. The legislative assembly possesses the 
 power of making laws ; such as the court of common council in 
 London, the court proprietors of the Bank of England and of the 
 East India and South Sea Companies. [Also the convocation in 
 the University of Oxford, and the congregation or senate in the 
 University of Cambridge.] 2. The electoral assembly is that 
 which is authorized to elect officers; such are, in general, the pro- 
 prietors in stock companies ; and the body at large of every corpo- 
 ration, when the power of election has not been vested in a minor 
 body. 3. The administrative have the management of particular 
 affairs, such as the courts of assistants in the city companies of Eu- 
 rope, the court of directors of a bank and other stock companies. 
 The same body of men may, therefore, and frequently do, possess 
 distinct powers. In private corporations (which, to 
 
 some extent, may be said to be towns in miniature) the electoral 
 power is generally in the body at large, though it may be vested in 
 a body selected solely to make elections, or in the legislative or 
 administrative assembly. The qualification of persons to exercise 
 the above powers must, of course, depend upon the charter and 
 the by-laws. By the constitution of the railway companies in 
 England, the proper organs through which they may act are 
 threefold: I. The general assembly of the company. 2. The 
 board of directors; and 3. A duly constituted agent." Angell and 
 Ames on Corporations, 98. 
 
 "The various classes of persons by whom the affairs of a corpo- 
 ration are practically conducted are : I . Officers, being those 
 who are parts of the organization; 2. Agents, who are not 
 parts of the organization, but represent it to the public; and 
 3. Servants, who do not even represent it, but only labor to ad- 
 vance its objects." i Abbott's Digest of Corporation Law, p. 2.
 
 191 ORGANS OF ACTION. 69! 
 
 Sec. 191. Same. 
 
 THE METHODIST EPISCOPAL CHURCH v. SHERMAN. 1 
 1874. IN THE SUPREME COURT OF WISCONSIN. 36 Wis. 404-409. 
 
 [Suit by the church to recover on an alleged agreement by the de- 
 fendant to pay one hundred dollars necessary to complete the church 
 edifice. The Rev. Dr. Hatfield was engaged to conduct the services 
 at the dedication, and he was requested by an informal meeting of the 
 trustees, pastor and class leaders to solicit subscriptions during the 
 dedication exercises, but was not appointed agent to receive such by 
 any vote of either trustees or the corporation. He called for subscrip- 
 tions and named a person to write down names and amounts as sub- 
 scribed. Defendant agreed to take or be put down for the last 
 hundred dollars necessary, and his name was so put down. A few 
 days later, and before any meeting had been held, one of the trustees 
 called on the defendant to perform his agreement, at which time he 
 undertook to revoke his promise. Judgment below was for the plaint- 
 iff and defendant appealed.] 
 
 RvAN,C. J. * * * The respondent is a corporation aggregate, having 
 a board of. trustees to manage its affairs. We need not stop to consider 
 how far the power to contract is in the aggregate body or in the select 
 body. It must be wholly in the one or the other, or partly in both. 
 There may be a doubt whether it can contract by parol, except through 
 an agent authorized by vote. A. & M. Turnpike Co. v. Hay, 7 Mass. 
 107. But, pretermitting that question, it could certainly contract 
 only through the aggregate body by vote, or through the select body 
 by vote, or through an agent authorized by vote of one body or the 
 other, or both, Angell and Ames, 231, 232. 
 
 It does not appear in the record that Dr. Hatfield was appointed 
 agent to receive subscriptions by vote of either body. On the con- 
 trary, it does appear by the evidence of one of the trustees that his 
 only show of authority was a request at an informal meeting of the 
 trustees, pastor and class leaders. This gave him no authorty for the 
 corporation. 
 
 He solicited subscriptions, during a religious service, for a religious 
 purpose. Manifestly there was present no formal meeting of the cor- 
 poration aggregate or of the select body. The appellant then made 
 the offer when there was present no body or agent authorized to ac- 
 cept it for the corporation. It remained a mere offer, which the 
 appellant might retract until accepted by the corporation. Addison 
 on Con., 36. * * * 
 
 Judgment reversed. 
 
 Note. In Cammeyer v. United German Lutheran Church, 2 Sandf. Ch. (N. 
 Y.) 186 (1844), it was held that "where the exercise of corporate acts is vested 
 
 1 Statement of facts abridged. Arguments and part of the opinion omitted.
 
 692 WIGHT V. SPRINGFIELD, ETC., R. CO. IQ2 
 
 in a select body, an act done by the persons composing that body, in a mass 
 meeting of all the corporators, or in union, or amalgamated with other like 
 bodies, parts of the corporation, is not a valid corporate act." See, also, cases 
 infra, modes of action, pp. 833-854. 
 
 As to who is a corporate officer, see, 1825, Dedham Bank v. Chickenng, 
 3 Pick (Mass.) 335; 1827, Union Bank v. Ridgely, 1 Harr. & G. (Md.) 
 324- 1843, Commonwealth v. Cuyler, 5 W. & S. (Pa.) 275; 1844, Com- 
 monwealth v. Wyman, 49 Mass. (8 Met.) 247; 1846, Burr v. McDonald, 
 3 Gratt (Va.) 215; 1853, Union Co. v. James, 21 Pa. St. 525; 1854, Es. 
 parte Bailey, 27 Eng. L. & Eq. 190; 1857, Commonwealth v. Tuckerman, 76 
 Mass. (10 Gray) 173 ; 1872, Commonwealth v. Christian, 9 Phila. (Pa.) 556 ; 1890, 
 Brand v. Godwin, 8 N. Y. Supp. 339. 
 
 As to how officers differ from mere agents, see Salem v. Gloucester Bank, 
 17 Mass 1 ; Foster v. Essex Bank, 17 Mass. 479 ; Ehrenzeller v. Union Canal 
 Co., 1 Rawle (Pa.) 181, 188; Weatherby v. Saxony, etc., Co., 29 Atl. Rep. 
 
 As to difference between officers and servants, employes, etc., see, 1865, 
 Hovey v. Ten Broek, 3 Rob. (N. Y.) 316; 1868, Coffin v. Reynolds, 37 N. Y. 
 640 1874, Hill v. Spencer, 61 N. Y. 274 ; 1875, Adams v. Goodrich, 55 Ga. 233 ; 
 1882 Wakefield v. Fargo, 90 N. Y. 213 ; 1882, Gordon v. Jennings, L. R. 9 Q. 
 B. Div. 45; 1887, Sleeper v. Goodwin, 67 Wis. 577; 1889, Vane v. Newcombe, 
 132 U. S. 220; 1890, Pendergast v. Yandes, 124 Ind. 159; 1890, Hand v. Cole, 
 88 Tenn. 400; 1891, Louisville, etc., R. Co. v. Wilson, 138 U. S. 501; 1894, 
 Clark's Appeal, 100 Mich. 448; 1897, Palmer v. Van Santvoord, 153 N. Y. 612; 
 1898, Cocking v. Ward, Tenn. Oh. App. , 48 S. W. Rep. 287; 1899, Bris- 
 tor v. Smith, 158 N. Y. 157. 
 
 Sec. 192. Qualification of agents and officers. 
 
 WIGHT v. SPRINGFIELD AND NEW LONDON RAILROAD 
 COMPANY. 1 
 
 1875. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 117 
 Mass. Rep. 226228, 19 Am. Rep. 412. 
 
 [Petition for mandamus to compel respondent to admit petitioner to 
 act as one of its directors. The city of Springfield was the lawful 
 owner of 1,500 of the 2,000 shares of- stock of the railroad company; 
 at a duly called meeting of the shareholders of the railroad company, 
 the city of Springfield was represented by five persons properly se- 
 lected for that purpose, one of whom was the petitioner. At this 
 meeting the petitioner received a large majority of the votes of the 
 shares of stock for director, but he not being himself a shareholder, 
 the president of the meeting refused to declare him elected, and the 
 corporation, by its officers, have since refused to recognize him as a 
 director, or allow him to act as such.] 
 
 GRAY, C. J. Although the directors of a railroad corporation are 
 usually chosen by the stockholders from their own number, there is 
 no rule of law that makes the holding of stock an indispensable qual- 
 ification of a director, unless prescribed by some act of the legislature 
 or by-law of the corporation. The only adjudication upon the sub- 
 ject cited at the argument supports this view. State v. McDaniel, 
 22 Ohio St. 354- And the statutes expressly requiring directors of 
 banks and insurance companies to be members of the corporation, and 
 the first directors of a railroad corporation incorporated under the gen- 
 
 1 Statements of facts abridged, and only part of opinion given.
 
 I Q2 QUALIFICATION OF OFFICERS. 693 
 
 eral law to be associates, strengthens the conclusion that the legisla- 
 ture intended to leave the qualifications of directors in the permanent 
 organization of such a corporation to the determination of the stock- 
 holders. * * * 
 Mandamus to issue. 
 
 Note. 1. Unless statute or charter prevents, a corporation can select whom- 
 soever it pleases to be its officers, agents or servants: 1847, Hoyt v. Bridge- 
 water C. M. Co., 6 N. J. Eq. (2 Halst.) 253, on 275 ; 1847, Sargent v. Webster, 54 
 Mass. (13 Mete.) 497, 46 Am. Dec. 743; 1870, Densmore Oil Co. v. Densmore, 
 64 Pa. St. 43; 1872, State v. McDaniel, 22 Ohio St. 354; 1876, British Provi- 
 dent Life, etc., Assn., L. R. 5 Ch. Div. 306; Iu80, Opinion of Attorney-Gen- 
 eral, 7 Pa. Co. Ct. Rep. 178. 
 
 2. In general the corporation may by by-laws prescribe qualifications of 
 its officers or directors: 1841, Dispatch Line of Packets v. Bellamy Mfg. Co., 
 12 N. H. 205, 37 Am. Dec. 203; 1844, Cammeyer v. United Church, 2 Sandf. 
 Ch. 186; 1862, Richards v. Merrimac & C. R. Co., 44 N. H. 127; 1870, Peo- 
 ple v. Northern R. Co., 42 N. Y. 217, on 230 ; 1871, Hazelhurst v. Savannah G. & 
 N. A. R. Co., 43 Ga. 13 ; 1892, Cross v. West Virginia Cent. & P. R. Co., 37 W. 
 Va. 342, 18 L. R. A. 582, 16 S. E. Rep. 587. But not contrary to statutory 
 provisions: 1876, British Provident Life, etc., Assn., L. R. 5 Ch. Div. 306. 
 
 3. As to residence and citizenship, there is no rule, unless by statute or 
 charter provision, that requires an officer or director to be a resident or citi- 
 zen of the state creating the corporation. Statutes, however., frequently pro- 
 vide that a part of the directors shall be residents of the state creating the 
 corporation. 1827, McCall v. Byram Mfg. Co., 6 Conn. 428; 1850, Conant v. 
 Millaudon, 5 La. Ann. 542; 1868, Matthews v. Theological Sem. R. P. Ch., 
 etc., 2 Brewst. (Pa.) 541 ; 1887, State v. Smith, 15 Ore. 98, 15 Pac. Rep. 137, 386 ; 
 
 1890, Commonwealth v. Detwiler, 131 Pa, St. 614, 18 Atl. Rep. 990, 992; 1892, 
 Horton v. Wilder, 48 Kan. 222, 29 Pac. Rep. 566; 1893, Hulings v. Lumber 
 Co., 38 W. Va. 351, 18 S. E. Rep. 620. 
 
 4. Neither is an officer or director required to be a shareholder, unless the 
 statute, charter, or a by-law so provides : 1841 , Dispatch Line of Packets v. 
 Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203; 1847, Hoyt v. Bridgewater 
 Copper M. Co., 6 N. J. Eq. 253; 1872, State v. McDaniel, 22 Ohio St. 354; 
 1889, Fey v. Peoria Watch Co., 32 111. App. 618; 1898, Bristol Bank & T. Co. 
 v. Jonesboro B. & T. Co., 101 Tenn. 545. But statute, charter or by-law 
 frequently so requires, a,nd then generally they must be holders in their 
 own right and in good faith: 1841, Dispatch Line, etc., v. Bellamy, etc., 12 N. 
 H. 205; 1852, Bartholomew v. Bentley, 1 Ohio St. 37; 1889, Bainbridge v. 
 Smith, 41 Ch. Div. 462, 33 Am. & E. C. C. 172, n. 182; 1891, In re Newcomb, 
 18 N. Y. Supp. (N. Y.) 16; 1892, Chemical National Bank v. Colwell, 132 N. 
 Y. 250; 1893, State v. Mfs. Assn., 50 Ohio St. 145, 24 L. R. A. 252; 1894, 
 Frank v. Lewis Foundry & M. Co., 24 Pittsburg L. J. (N. S.) 33. But see, 
 
 1891, In re Argus Printing Co., 1 N. Dak. 434, 26 Am. St. Rep. 639, 36 Am. 
 & E. Corp. C. 101, 48 N. W. Rep. 347, 12 L. R. A. 781, and 1894, Greenough v. 
 Alabama G. S. R. Co., 64 Fed. Rep. (C. C.) 22; 1898, Haiues v. Kinderhook 
 & H. Ry. Co., 33 App. Div. (N. Y.) 154.
 
 694 METROPOLITAN R. CO. V. MANHATTAN R. CO. 193 
 
 SUBDIVISION II. FUNCTIONS OF MEMBERS, DIRECTORS AND OF- 
 FICERS. 
 
 ARTICLE I. MEMBERS AND DIRECTORS. 
 
 Sec. 193. The members of the corporation wield such powers as 
 are extraordinary or unusual in their nature, whereas the 
 directors manage the ordinary business of the corporation ; 
 and fundamental changes in the character or business usually 
 require action by both the shareholders and the executive and 
 administrative officers. 
 
 METROPOLITAN ELEVATED R. CO. v. MANHATTAN ELEVATED 
 
 R. CO. 1 
 
 1884. IN THE COURT OF COMMON PLEAS, CITY AND COUNTY OF 
 
 NEW YORK. 2 ii Daly's (N. Y. Com. Pleas) Rep. 373-528, 
 
 14 Abb. New Cas. 103-316, 15 Am. & Eng. R. Cas. 1-94. 
 
 [Action to set aside a tripartite agreement made between the New 
 York Elevated Railroad Company, the Metropolitan Elevated Rail- 
 way Company and the Manhattan Elevated Railway Company, 
 whereby the first two were to lease their roads to the latter, which as- 
 sumed the performance of certain contracts and the payment of cer- 
 tain bonds of the former; the Manhattan Company being unable to 
 perform its part of the agreements, after much litigation, and by way 
 of settlement, supplementary agreements were entered into which 
 would enable the Manhattan Company to continue in the control of 
 the roads on the basis of concessions made by the other companies. 
 These supplemental agreements were executed by the Metropolitan 
 Company, by authority of its directors, without the assent or ratifica- 
 tion of the shareholders. New directors of this company being elected, 
 it brought suit to set aside the supplemental agreements on the ground 
 of fraud, breach of trust, etc., on the part of the former directors.] 
 
 VAN BRUNT, J. * * * That the directors of a corporation are 
 agents seems to be clearly recognized in all the cases in which the 
 relations of directors and shareholders to their corporation have been 
 discussed. 
 
 It is said in Twin Lick Oil Co. v. Marbury (91 U. S. 587, 589) 
 that the directors are the officers or agents of the corporation, and 
 
 1 Statement of facts greatly abridged. Only so much of the opinion as re- 
 lates to the authority of directors is given. Copies of all agreements and 
 leases are given in 14 Abb. N. C., pp. 125, 130 and 166, and are valuable as 
 forms. 
 
 2 No appeal was taken. All parties accepted this as a correct exposition of 
 the law. The most eminent counsel in New York were engaged in the case.
 
 193 FUNCTIONS OF MEMBERS AND DIRECTORS. 695 
 
 represent the interests of that abstract legal entity, and of those who 
 own the shares of its stock. 
 
 In Cumberland Coal, etc., Co. v. Sherman (30 Barb. 553, 571) 
 the court says: "There can be no question at the present time that a 
 director of a corporation is the agent or trustee of the stockholders." 
 
 In Angell & Ames on Corporations, 771, it is stated that "The 
 stockholders compose the company, and the managers, directors or 
 officers are their agents, necessary for the management of the affairs 
 of the company, but they are not essential to its existence as such, not 
 forming one of the integral parts." 
 
 In Abbott v. American Hard Rubber Co. (33 Barb. 578) the court 
 says, at the foot of page 591 : "Boards of directors are agents of the 
 corporation to manage its affairs and carry out the purpose and ob- 
 ject of its formation." 
 
 The directors thus being the agents of the corporation, what are 
 their powers and from whence are they derived, and how must cor- 
 porate powers residing in the corporation, the right to exercise which 
 is not vested in the directors, be brought into operation? These ques- 
 tions are so intimately connected that they must be disposed of to- 
 gether. 
 
 The powers of directors are such as are conferred by the charter of 
 their corporation and the laws pertaining thereto, and such corporate 
 powers as are not conferred by law upon the directors remain in the 
 corporation to be exercised, or at least set in motion by its component 
 parts, the shareholders. 
 
 In the case at bar the charter provided that the directors were to 
 manage the business and affairs of the company ; and the question in- 
 volved in this branch of the case is whether this language conferred 
 'the right to exercise every corporate power possessed by the corpora- 
 tion or merely to manage the ordinary business and affairs of the com- 
 pany for the carrying on of which it was organized, leaving the right 
 remaining in the shareholders composing the company to set in motion 
 or confirm corporate action within the limits of its powers, but ex- 
 traordinary and unusual in its nature. 
 
 Within the sphere of their duties the right of the directors is un- 
 doubtedly exclusive, and, further, all corporate acts must be done 
 through them, as they are exclusive executive and administrative 
 authority, but, nevertheless, all corporate powers do not reside in the 
 board of directors. 
 
 It is true that the court says, in McCullough v. Moss (5 Denio 567, 
 575), that: "When a charter invests a board with the power to man- 
 age the concerns of a corporation the power is exclusive in its charac- 
 ter. The corporators have no right to interfere with it, and courts 
 will not, even on a petition of a majority, compel the board to do an 
 act contrary to its judgment." 
 
 That case was an action to recover upon a promissory note, which 
 the corporation in the exercise of its legitimate business could have 
 made, and the question presented was whether execution was proved. 
 The note was signed by the president and secretary of the company,
 
 696 METROPOLITAN R. CO. V. MANHATTAN R. CO. 193 
 
 but no authority from the board of directors, who, by the charter, 
 were to conduct the affairs of the company, to the president and sec* 
 retary, was shown. Some resolution of the shareholders was shown, 
 but it had no relation to this question, and then the court uses the lan- 
 guage above quoted. This case nowhere decides that the directors 
 are clothed with all the corporate powers. It may be cited as an au- 
 thority for the proposition that the shareholders can not compel the 
 directors to act in any manner against their judgment in the exercise 
 of a corporate power which remains in the corporation. 
 
 For example, if the power to lease was vested in the corporation, 
 but the directors could not, because of the limitation in the charter, exer- 
 cise this power, the shareholders could not cause the lease to be exe- 
 cuted and delivered, nor could they compel the directors to execute and 
 deliver the same against their own judgment ; all that the shareholders 
 could do would be to authorize the directors to act or confirm an act 
 of the directors which would be incomplete without such ratification. 
 
 The case of Hoyt v. Thompson (19 N. Y. 207) is also claimed to 
 be an authority against the suggestion made above ; but upon an ex- 
 amination it will be seen that much is said in respect to the relation 
 of directors to their corporation, and their rights and powers, and the 
 sources from which they are derived, which was not at all necessary 
 to the decision of the question involved, and is directly contrary to the 
 principles announced in the United States Supreme Court in a case 
 where the direct question was presented. 
 
 The adjudication in the case of Hoyt v. Thompson had necessarily 
 to be put upon the ground that the act under investigation was "ordi- 
 nary business," and in that case a distinction was plainly recognized 
 between "ordinary business" and such as was within the corporate 
 powers, but unusual and not coming within the general business of 
 the corporation. The court held that although the charter of the cor- 
 poration declared that its powers should be exercised by a board of 
 directors, consisting of a specified number, yet the board might dele- 
 gate its authority to agents or to a quorum of less than a majority of 
 the number. 
 
 The court further held that when a by-law of the corporation de- 
 clared that five directors should be a quorum for the transaction of 
 "ordinary business," the general business of the corporation was em- 
 braced in the authority- thus delegated, including as incident thereto 
 the power of pledging or assigning assets of the corporation for the 
 purpose of securing a debt, it appearing that such pledge was made 
 for the purpose of enabling the corporation to continue its business ; 
 and this is all that this case decides which is pertinent to the questions 
 involved in the case at bar. 
 
 It is true that the learned judge who wrote the opinion in the case 
 of Hoyt v. Thompson uses the following language: 
 
 "The board of directors of a corporation do not stand in the same 
 relation to the corporate body which a private agent holds toward his 
 principal. In the strict relation of principal and agent, all the 
 authority of the latter is derived by delegation from the former, and
 
 193 FUNCTIONS OF MEMBERS AND DIRECTORS. 697 
 
 if the power of substitution is not conferred in the appointment, it can 
 not exist at all. But in corporate bodies the powers of the board of 
 directors are, in a very important sense, original and undelegated. The 
 stockholders do not confer, nor can they revoke, these powers. They 
 are derivative only in the sense of being received from the state in the 
 act of incorporation. The directors convened as a board are the 
 primary possessors of all the powers which the charter confers." 
 
 The whole of this argument was devoted to establishing the power 
 of the board of directors to delegate the authority to manage the ordi- 
 nary business of the corporation to five of their number, and had no 
 other purpose. 
 
 That the directors convened as a board are not the primary pos- 
 sessors of all the powers which the charter confers is expressly held 
 by the United States Supreme Court in the case of the Railway Com- 
 pany v. Allerton, 85 U. S. (18 Wall.) 233 1 . In that case the charter 
 provided as follows: 
 
 "Section 3. The capital stock of said corporation shall be one 
 hundred thousand dollars, and may be increased from time to time at 
 the pleasure of said corporation. 
 
 "Section 4. All the corporate powers of said corporation shall be 
 vested in and exercised by a board of directors, and such officers and 
 agents as said board shall appoint." 
 
 An increase of the capital stock of the corporation by the direc- 
 tors, without the assent of the stockholders, was held to be void, as 
 beyond the power of the board of directors, although the charter 
 provided that all the corporate powers of the corporation should be 
 vested in and exercised by a board of directors, etc., and that the 
 powers thus granted to the directors refer only to the ordinary busi- 
 ness transactions of the corporation. The necessary conclusion to be 
 drawn from the reasoning employed in that case is, that the board of 
 directors are the managers of the business which the corporation is 
 chartered to carry on, and they have the control and management of 
 that business ; but that they have no power to effect organic and fun- 
 damental changes in the corporation or its business without the con- 
 sent of the corporation. The Metropolitan Company was chartered 
 for the purpose of making, constructing, maintaining and operating 
 a railway upon certain streets, avenues, thoroughfares and places in 
 the city of New York. This was its business, and this was all the 
 business upon the execution of which it entered. Could it be im- 
 agined that a change more fundamental could possibly be made than 
 that a corporation, chartered for the above purpose, should lease its 
 road and properties to another corporation and deliver possession of 
 the same for all time, and thus change its business from that of mak- 
 ing, constructing, maintaining and operating a railroad to that of re- 
 ceiving rent for the use of such road? 
 
 In considering this question, it is not at all improper to look for a 
 moment at the result arising from a rule that the directors ate the 
 primary possessors of all the powers which tne charter confers. If 
 1 Supra, p. 442.
 
 698 METROPOLITAN R. CO. V. MANHATTAN R. CO. 193 
 
 the board of directors have the power, without the assent of the share- 
 holders, to lease the properties of the corporation for all time, then 
 the shareholders may be deprived of, not only the administration of 
 their property through its agents, the directors, but its very possession, 
 without a moment's warning. A board of directors are elected for one 
 year to manage the business and affairs of the corporation, such busi- 
 ness being the operating and maintaining a railroad. At the time of 
 their election the shareholders have no intimation that anything else 
 is to be done by the directors, and the expectation is that such direc- 
 tors, at the end of their year in office, will turn over the property 
 committed to them to their successors in office, with an account of 
 their stewardship. Can it be possible that this board, elected for only 
 one year, without any notice or warning, has the power to terminate 
 the business of the corporation and transfer all the properties to an- 
 other corporation ? It seems to me clearly not. This is not the 
 management of the business of the corporation. It is terminating 
 the business, to carry on which it was incorporated. It is just as fun- 
 damental and radical a change as an increase of its capital stock, or 
 the entering upon a new business by a corporation authorized by its 
 charter can possibly be. Although I have not intended to quote as 
 authority any decision except those of our own state, or of the United 
 States Supreme Court, I must refer to the language used by the learned 
 court in the case of Cass v. Manchester, 13 Rep. 167, in which it 
 was held that directors had no power to make a lease, even for five 
 years, without the consent of the shareholders. The court says: 
 
 ''But if this conclusion is the result of too strict a construction of 
 the charter, we are of the opinion that the power in question is not 
 exercisable independently of the judgments of the stockholders. The 
 directors and officers of a corporation are its exclusive executive 
 agents, and, as it can only act by and through them, the powers vested 
 in the corporation are deemed to be conferred upon its representatives, 
 but they are, nevertheless, trustees for the stockholders. The law 
 recognizes the stockholders as the ultimately controlling power in the 
 corporation, because they may, at each authorized election, entirely 
 change the organization, and may at any time keep the trustees within 
 the line of faithful administration, by an appeal to a court of equity. 
 Hence, it has been held that the directors of a corporation can not 
 alone increase its capital stock, where such increase was authorized 
 by its charter 'at the pleasure of said corporation,' and where it was 
 provided that 'all powers of such corporation shall be vested in and 
 exercised by a board of directors,' etc. ; and this for the reason that 
 the general power to perform all corporate acts, refers to the ordinary 
 business transactions of 'the corporation,' and not to a change so fun- 
 damental and organic. (18 Wall. 234.) 
 
 "The change proposed is not organic, but it is thorough and fun- 
 damental, as it affects the administration of the company's affairs. It 
 involves a withdrawal from the control and management of the stock- 
 holders of the entire property of the corporation for at least five years ; 
 it will preclude, for a like period, the exercise by the stockholders of
 
 193 FUNCTIONS OF MEMBERS AND DIRECTORS. 699 
 
 their judgment as to the particular character and method of conduct- 
 ing the business affairs of the corporation ; and it denies to the stock- 
 holders any right of suggestion or disapproval of the conditions, when 
 such relinquishment of important corporate faculties may be conceded. 
 Surely a power which will be attended with such consequences does 
 not relate 'to the ordinary business transactions,' nor 'to the orderly 
 and proper administration of the affairs' of the company; and hence 
 can not be exercised by the directors without express authority to 
 them." 
 
 In opposition to this view is cited by the learned counsel for the de- 
 fendants the case of The Excelsior Fire Ins. Co. (16 Abb. Pr. 8, 
 14), in which it was said: 
 
 "The statute says 'the company is authorized to reduce the number 
 of its directors,' etc. It makes no provision for a meeting of the 
 stockholders for that purpose. In the absence of any provision of that 
 character the power is vested in the board of directors. Stockhold- 
 ers, as such, possess no powers in the management of a corporation, 
 except specially authorized so to do by their charter. Their power 
 ends with the election of the directors." 
 
 Also, in Elwell v. Dodge (33 Barb. 336, 339), the court says: 
 
 'A general resolution of the directors delegating the power to trans- 
 fer property or choses in action to meet the exigencies of the corn- 
 puny, or a ratification of this particular transfer, by act or resolution 
 of the board, or acceptance and appropriation of the fruits of the 
 transaction, if a special resolution authorizing the transfer and use of 
 this note was wanting, would be sufficient to sustain the indorsement 
 as the act of the company, even as against the company, and might 
 have been proved had the precise point now made been then taken." 
 
 The language of Judge Selden, in the case of Robertson v. Bullions 
 (n N. Y. 243, 250), is also referred to. He says: 
 
 "What, then, are the powers, rights and obligations of this class of 
 corporate officers, and to what extent has this court jurisdiction over 
 them ? * * * These officers are trustees in the same sense with 
 the president and directors of a bank or of a railroad company. They 
 are the officers of the corporation, to whom is delegated the power of 
 managing its concerns for the common benefit of themselves and all 
 other corporators, and over whom the body corporate retains control 
 through its power to supersede them at every recurring election." 
 
 In the Matter of St. Ann's Church (23 How. Pr. 285), Judge 
 Emott says: 
 
 "The officers thus chosen are not trustees in the sense in which an 
 individual becomes or is made a private trustee ; they are simply of- 
 ficers of the corporation. As such officers they represent the cor- 
 poration; they are its managing agents, and they may act for the 
 corporation as fully as the directors or agents of an ordinary corpora- 
 tion may act in its behalf. A corporation ordinarily acts through its 
 officers, and through them only. The power of managing its con- 
 cerns is delegated to its officers, and they are to manage them for the 
 common benefit of themselves and all the other corporators. These
 
 700 METROPOLITAN R. CO. V. MANHATTAN R. CO. 193 
 
 officers are liable, it may be, to judicial proceedings to control their 
 action where it is fraudulent or destructive of the rights and interests 
 of the corporation. They are responsible, however, more directly 
 and practically, to the corporate body itself, through the power of the 
 corporators to supersede them at their elections." 
 
 In the case of Dana v. The Bank of the United States, 5 Watts & 
 S. (Pa.) 223, 246, the following passage occurs: 
 
 "This, I take it (that is to say, the election), is the utmost that the 
 stockholders can do according to the tenor and -design of the act under 
 which they must all act until an election of the directors shall come 
 around, when the former, if dissatisfied with the conduct of the latter 
 in managing the affairs of the bank, may turn any one, or more, 
 or the whole of them, out of the direction, and place it in other 
 hands." 
 
 The claim made by virtue of these decisions is that the stockhold- 
 ers have no power to do anything in relation to any matter whatever 
 pertaining to their corporation, except that if dissatisfied with the 
 conduct of their directors in managing the affairs of the corporation 
 they may turn them out at the next election ; and this is certainly the 
 language of all the above decisions. But how inapplicable is such 
 remedy to an act of the directors which has terminated the business 
 of the corporation and placed all its property in other hands for a 
 thousand years ; will that give back the property to the corporation ; 
 will that set right any maladministration if the directors had the power 
 to thus act? Clearly not, and the language was intended to apply to 
 cases where the action taken was neither radical nor fundamental in 
 its character. For mismanagement of the ordinary business of the 
 company, the turning out of the directors is a reasonably adequate 
 redress; but when the directors have divested the company of all its 
 property, it is difficult to see how any remedy is afforded by turning 
 them out. Further, the courts of this state, as has already been seen, 
 expressly recognize the fact, notwithstanding the decision above men- 
 tioned, that the shareholders have certain other rights and privileges 
 beside that of electing directors, viz. : The right to be consulted in 
 respect to change of business, increase of capital stock, dissolving 
 and winding up the affairs of the corporation, sale of any portion of 
 its property necessary for the transaction of its business, etc. 
 
 It need hardly, therefore, be necessary, in view of the principles 
 which have controlled the decisions already quoted, to discuss further 
 the question that there are powers reserved to the corporation which 
 can not be exercised by the directors without the assent of the share- 
 holders, and that the shareholders, under some circumstances, at least, 
 may exercise other functions than simply those of electing their board 
 of directors. Nor is it necessary now to dwell upon the scope of the 
 act of 1839, or to attempt to show that bv this act the Metropolitan 
 Railway Company had the power to lease its road and properties. 
 That such power existed is now conceded by the counsel for the 
 plaintiff, in view of the decision of the court of appeals in the case of 
 Woodruff v. The Erie R. Co., 93 N. Y. 609.
 
 193 FUNCTIONS OF MEMBERS AND DIRECTORS. 70 1 
 
 It is claimed by the counsel for the defendants that as far as this 
 state is concerned, at least, the power of a board of directors to lease 
 without the assent of shareholders has been expressly recognized by 
 the legislature of this state, and various acts of the legislature are 
 cited, in which leases of railroads and consolidations of railroads are 
 authorized to be made as the directors shall determine. It seems to 
 me, that instead of these acts being an evidence of a legislative con- 
 struction that, under the act of 1839, directors had the power to lease 
 without the assent of shareholders, it was only because such acts could 
 not be performed by the directors alone that it was thought necessary 
 to confer express powers upon the directors. If the power was con- 
 ferred upon the corporation the directors alone could not exercise it, 
 and, therefore, the legislature conferred the power expressly upon the 
 directors. 
 
 Attention has also been called to various cases where the assent of 
 stockholders is provided for as a condition of corporate action. 
 
 It will be seen that in every case it is a limitation upon corporate 
 action by requiring more than a majority of stockholders to assent, or 
 the conferring of a new power upon corporations and affixing the con- 
 ditions upon which such power is to be exercised. 
 
 I fail to see that legislation of this character in any way aids us in 
 the determination of this question. If, however, a solution of the 
 problem is to be reached by the light of legislative interpretation, 
 chapter 349 of the Laws of 1880 seems to clearly indicate the neces- 
 sity of stockholders' assent, given at a stockholders' meeting, to the 
 leasing of the property of a railroad corporation ; otherwise, what 
 necessity for legislative intervention in the terms of the act re- 
 ferred to ? 
 
 The cases of Fisher v. New York Central, etc., R. Co., 46 N. Y. 
 644, and The Central Cross Town R. Co. v. The Twenty-third Street 
 R. Co., 54 How. Pr. 183, are cited as deciding that a lease may be 
 made without the assent of the shareholders. I have failed to find 
 any such adjudication in either of those cases. All that can be claimed 
 for those cases is that they decide that a lease of its road, made by a 
 railroad corporation, is not ultra vires, and they decide nothing more 
 upon the question of power. 
 
 No question is raised or discussed as to the manner of the exercise 
 of its power by the corporation. There was no person before the 
 court seeking to impeach the lease, who could be heard upon the ques- 
 tion of stockholders' assent. The only question was whether the lease 
 was not actually void, not voidable. 
 
 There is no question but that, admitting that a board of directors 
 alone have no power to lease the property of their corporation, and 
 if such lease is executed by the directors without the assent of the 
 stockholders, such stockholders may accept the lease or repudiate it, 
 and that if they allow the parties to the lease to go on under the lease 
 without any action being taken in respect thereto, within a reasonable 
 time, they will be held to have acquiesced in the -lease and ratified it. 
 Therefore, conceding that the corporation has the power to lease,
 
 702 METROPOLITAN R. CO. V. MANHATTAN R. CO. 1 93 
 
 when the action is taken and the stockholders have acquiesced, no 
 third party can raise the objection that the stockholders have not 
 formally assented. 
 
 In the cases cited the leases had long been in operation, and the 
 time for dissent had long passed, and, therefore, the only question 
 that could be raised was the power of the corporation to act at all. 
 After an examination of the reasoning in all the adujdicated cases 
 (which has been by no means cursory), after a consideration of the 
 principles governing the relations of shareholders of a corporation and 
 its directors, conceding that a corporation can do HO act unless spe- 
 cially authorized thereto, except through its board of directors, I am 
 irresistibly brought to the conclusion that acts making organic or fun- 
 damental changes in the character or business of the corporation, can 
 not be done either by the directors alone, or by the shareholders alone ; 
 but that both the executive and administrative officers of the corpora- 
 tion must unite with the shareholders of the corporation, who confer 
 the right to act upon the individuals intrusted with the office of di- 
 rectors ; that directors are merely temporary officers of the corporation, 
 by virtue of their office entitled to manage the business and affairs of 
 the corporation during their term of office, without interference from 
 the stockholders, but they can not say that a new board of directors, 
 although duly elected by the stockholders, shall never thereafter inter- 
 fere with the management of the properties of the corporation, be- 
 cause they have placed their possessions and management into other 
 hands forever. * * * 
 
 Judgment for plaintiff. 
 
 Note. Functions of shareholders. In general shareholders have the 
 right, to : 
 
 (1) Elect directors. 1865, Mottu v. Primrose, 23 Md. 482; 1881, State v. 
 Merchant, 37 O. S. 251. 
 
 (2) Pass on amendments to the charter. 1818, Marlborough Manufactur- 
 ing Co. v. Smith, 2 Conn. 579; 1850, Commonwealth v. Cullen, 13 Pa. St. 133. 
 53 Am. Dec. 450, supra, p. 417; 1854, Stark v. Burke, 9 La. Ann. 341; 1870, 
 Hope v. Mut. F. Ins. Co., 47 Mo. 93; 1873, Railway Co. v. Allerton, 85 U. S. 
 233, supra, p. 442; 1885, Baker's Appeal, 109 Pa. St. 461; 1886, Venner v. 
 Atchison, etc., R., 28 Fed. Rep. 581; 1899, In re Election of Directors of New- 
 ark Lib. Assn., 64 N. J. L. 217, 265, 43 All. Rep. 435; 1899, Alexander v. At- 
 lantic & W. P. R. Co., 108 Ga. 449, 33 S. E. Rep. 866. But see contra, 1855, 
 Dayton & C. R. Co. v. Hatch, 1 Disn. (Ohio) 84; 1858, Illinois River R. Co. 
 v. Zimmer, 20 111. 654. 
 
 (3) Increase or reduce stock. 1860, New York & N. H. R. v. Schuyler, 38 
 Barb. 534; 1871, Eidman v. Bowman, 58 111. 444, 11 Am. Rep. 90; 1873, 
 Chicago City Ry. Co. v. Allerton, 85 U. S. (18 Wall.) 233, supra, p. 442; 1897, 
 McNulta v. Corn Belt Bank, 164 111. 427. 
 
 (4) Make by-laws. 1766, Rex v. Spencer, 3 Burr. 1837 ; 1868, Stevens v 
 Davison, 18 Gratt. (Va.) 819, 98 Am. Dec. 692; 1875, Morton Gravel Co v 
 Wysong, 51 Ind. 4; 1876, People v. Sterling B. C., 82 111. 457, contra; 1876' 
 Thayer v. Herrick, Fed. Gas. 13868; 1877, United Fire Assn. v. Benseman 4 
 Weekly N. C. (Pa.) 1; 1893, Brinkerhoff v. Lumber Co., 118 Mo. 447 infra 
 p. 1162; 1894, Watson v. Sidney, F. W. P. Co., 56 Mo. App. 145. 
 
 (5) Control the issue of stock. 1867, Curry v. Scott, 54 Pa. St. 270- 1868 
 McManus v. P. & R. Co., 58 Pa. St. 330; 1883, Jones v. Morrison 31 Minn' 
 140: 1891, Arkansas V. Ag. Soc. v. Eicholtz, 45 Kan. 164.
 
 194 FUNCTIONS OF OTHER OFFICERS. 703 
 
 (6) Investigate the management. 1880, Star Line v. Van Vliet, 43 Mich. 
 364. 
 
 (7) Check ultra vires acts, and in this case a single dissenting shareholder 
 can enjoin such act. 1850, Bagshaw v. Eastern, etc., R., 19 L. J. (Ch.) 410; 
 1851, Beeman v. Rufford, 1 Sitn. N. S. 5">0; 1867, Hoole v. Great Western R., 
 L. R. 3 Ch. App. 262; 1895, Pollock v. Fanners' L. & T. Co., 157 U. S. 429. 
 
 (8) Prevent the sale of the corporate property, unless the corporation is a 
 failing one. 1861, Abbott v. Hard Rubber Co. ,33 Barb. 578; 1874, Middlesex, 
 etc., R. v. Boston, etc., R., 115 Mass. 347; 1892, People v. Ballard, 134 N. 
 Y. 269. 
 
 (9; Provide for the admission of members. 1837, Comw. v. Gill, 3 Whart. 
 228. 
 
 (10) Remove members or officers. 1758, Rex. v. Richardson, 1 Burr. 517; 
 1865, Evans v. Philadelphia Club, 50 Pa. St. 107, infra, p. 1165; 1882, Imperial 
 Hydropathic Hotel Co., L. R. 23 Ch. Div. 1; 1898, In re Griffing Iron Co., 41 
 Atl. Rep. (N.J.i 931. 
 
 (11) Dissolve the corporation or surrender the corporate franchises. 1813, 
 Smith v. Smith, 3 Dessau. Eq. (S. C.)557; 1843 State v. Atch. R. Co., 5 Rob. 
 (La.) 63; 1870, Wilson v. Proprietors of Central Bridge, 9 R. I. 590; 1897, 
 Pringle v. Eltringham C. Co., 49 La. Ann. 301, 6 A. & E. C. C. (N. S.) 385; 
 1898, Forrester et al. v. B. &-M. C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 
 Rep. 229. 
 
 Functions Of directors. These are usually stated to be to select the inferior 
 officers, agents and servants of the corporation, fix their compensation and 
 direct their actions. 1880, Batchelorv. Planters' National Bank, 78 Ky. 435; 
 1891, Sheridan Elec. L. Co. v. Chatham National Bank, 127 N. Y. 517, 28 N. 
 E. Rep. 467; 1898, Granger y. Am. Brew. Co., 25 Miscl. (N. Y.) 302. Also to 
 control in the ordinary business affairs of the corporation, such as policy of 
 management, expediency of acting or contracting, accepting consideration for 
 corporate property, or service, or appropriation of corporate funds to advance 
 the corporate enterprise. And in these particulars, if they act in good faith, 
 the stockholders can not control their acts. 1840, Burrill v. Pres. and Dir. 
 of Nahant Bank, 2 Mete. (Mass.) 163, 35 Am. Dec. 395; 1850, Gillis v. Bailey, 
 21 N. H. 149; 1*50, Oommw. v. Cullen, 13 Pa. St. 133, 53 Am. Dec. 450; 1863, 
 Miller v. Rutland, etc., R. Co., 36 Vt. 452; 1880, Hun v. Gary, 82 N. Y. 65, 37 
 Am. Rep. 546; 1881, Cleveland & M. R Co. v. Himrod Furnace Co., 37 Ohio 
 St. 321 ; 1884, Louisville, E. & St. L. Ry. Co. v. McVay, 98 Ind, 391 ; 1885, 
 Donohoe v. Mariposa L. & M. Co., 66 Cal. 317; 1891, "Ellerman v. Chicago 
 J. R., 49 N. J. Eq. 217, 35 Am. & E. C. C. 388; 1892, Wheeler v. Pullman I. 
 & S. Co., 143 111. 197; 1896, Blood v. La Serena, 113 Cal. 221, 4 Am. & E. C. 
 C. (N. S.) 451 (this case holding that stockholders can not direct certain 
 officers to do acts of ordinary business by resolution, unless the directors 
 authorize such acts also) ; 1899, Cupit v. Park City Bank, 20 Utah 292, 58 Pac. 
 Rep. 839. 
 
 ARTICLE II. OTHER OFFICERS. 
 
 Sec. 194. The president, etc. 
 
 NATIONAL STATE BANK v. VIGO COUNTY NATIONAL BANK. 1 
 
 1895. IN THE SUPREME COURT OF INDIANA. 141 Ind. Rep. 352- 
 357, 50 Am. St. Rep. 330. 
 
 [Action to set aside two mortgages held by Vigo Bank, purporting 
 to have been executed by Sanford Tool Company by its president, 
 "on his own motion and without any authority or permission to him 
 
 1 Statement of facts abridged. Only pa it of opinion given.
 
 704 NATIONAL STATE BANK V. VIGO, ETC., BANK. 194 
 
 given by said tool company, or its directors or stockholders," and 
 without their consent or subsequent ratification. The Vigo Bank de- 
 murred ; demurrer sustained and exceptions reserved. Sustaining the 
 demurrer is the error assigned.] 
 
 MONKS, J. * * * The statute under which the tool company was 
 organized provides that the business of the corporation shall be man- 
 aged by a board of directors, a majority of whom shall constitute a 
 quorum. Section 3854, R. S. 1881 ; section 5054, R. S. 1894. 
 
 Under this statute the directors have full authority to act for the cor- 
 poration, and represent it in all the matters relating to the corporate 
 business. Brooklyn Gravel Road Co. v. Slaughter, 33 Ind. 185 ; Board, 
 etc., v. Lafayette, etc., R. Co., 50 Ind. 85. 
 
 The president of a corporation, by virtue of his office merely, has 
 very little authority to act for the corporation ; his powers depend 
 upon the nature of the company's business and the authority given 
 him by the board of directors. The board of directors may invest 
 him with authority to act as the chief executive officer of the company ; 
 this may be done by resolution or by acquiescence in the course of 
 dealing and manner of transacting the business of the corporation. 
 Taylor Corp., 202, 236, 238, and notes; Martin v. Webb, no U. 
 S. 7; Northern, etc., R. Co. v. Bastian, 15 Md. 494; Dougherty v. 
 Hunter, 54 Pa. St. 380; Stokes v. New Jersey Pottery Co., 46 N. J. 
 Law 240; Louisville, etc., R. W. Co. v. McVay, 98 Ind. 391 ; 17 
 Am. and Eng. Encyc. of Law, pp. 135, 136, 137, and notes; Jones 
 Chat. Mort., 51. 
 
 When a contract is made in the name of a corporation by the presi- 
 dent, in the usual course of business, which the directors have the 
 power to authorize him to make, or to ratify after it is made, the 
 presumption is that the contract is binding on the corporation until it 
 is shown that the same was not authorized or ratified. Patterson v. 
 Robinson, 116 N. Y. 193; Eureka Iron and Steel Works v. Bresna- 
 han, 60 Mich. 332; i Morawetz Corp., 538; i Beach Corp., 203; 
 17 Am. & Eng. Ency. of Law, p. 124. 
 
 One dealing with the president of a corporation, in the usual course 
 of business, and within the powers which the president has been ac- 
 customed to exercise without objection from the directors, has the 
 right to assume that the president has been invested with those powers, 
 i Morawetz Corp., 538; i Beach Corp., 203; First Nat'l Bank 
 v. Kimberlands, 16 W. Va. 555 ; Eureka Iron and Steel Works v. 
 Bresnahan, supra. 
 
 Each paragraph of the complaint, however, alleges that said mort- 
 gages were executed without any authority whatever, and were never 
 ratified after they were executed, and we are of the opinion that the 
 second, third and fourth paragraphs were sufficient to withstand the 
 demurrer. * * * 
 
 Judgment reversed. 
 
 Note. See, also, as to functions and powers of president. 1872, Smith v. 
 Smith, 62 111. 493; 1874, Titus v. Cairo, etc., R. Co., 37 N. J. L. 98; 1881,
 
 195 INTERNAL RELATIONS (iLNKRALLY. 7O5 
 
 Mining Co v. Anglo-Cal. Bank, 104 U. S. 192; 1891, Wait v. Nashua Armor)' 
 \ssn 66 N H. 581, 49 Am. St. Rep. 630, 14 L. R. A. 356; 1895, Merrill v. 
 Hurley 6 S D. 592, 55 Am. St. Rep. 859; 1896, Board of Trade v. Nelson, 162 
 111. 431, 53 Am. St. Rep. 312; 1896, Ford v. Hill, 92 Wis. 188, 53 Am. St. Rep. 
 902; 1897, Swasey v. Emerson, 168 Mass. 118,60 Am. St. Rep. 368; 1897, 
 White v. Taylor, 113 Mich. 543; 1897, Jones v. Williams, 139 Mo. 1, 61 Am. 
 St Rep 436, 37 L. R. A. 682; 1897, Brush, etc., Co. v. Montgomery, 114 Ala. 
 433 21 So. Rep. 960; 1898, Pacific Bank v. Stone, 121 Cal. 202; 1899, Cham- 
 bers v. Lancaster, 160 N. Y. 342, 54 N. E. Rep. 707; 1899, Moore Mercantile 
 Co. v. Arnold, 108 Ga. 449, 34 S. E. Rep. 176; 1899, White v. Elgin Creamer. 
 Co., 108 Iowa 522, 79 N. W. Rep. 283. 
 
 As to functions and powers of rice-president, see: 1872, Smith v. Smith, 62 
 111. 493; 1890, Huse v. Ames, 104 Mo. 91; 1891, Wait v. Nashua Armory 
 Assn., 66 N. H. 581, 49 Am. St. Rep. 630, 14 L. R. A. 356; 1892, Shaffer v. 
 Halm, 111 N. C. 1; 1895, Missouri, etc., Co. v. Faulkner, 88 Tex. 649; 1897, 
 Pond v. Nat'l Mtg. & D. Co., 6 Kan. App. 750. 
 
 .4s to powers of secretary, see : 1889, Read v. Buffum, 79 Cal. 77; 1893, 
 Hastings v. Brooklyn, etc., Co., 138 N. Y. 473; 1895, Wolf &Gaines v. Daven- 
 port, etc., R. Co., 93 Iowa 218; 1899, Colorado S. Co. v. Am. Pub. Co., 97 Fed. 
 Rep. 843. 
 
 As to functions and powers of treasurer, see: 1881, Mining Co. v. Anglo-Cal. 
 Bank, 104 U. S. 192; 1889, Craft v. South Boston R. Co., 150 Mass. 207, 5 L, 
 R. A. 641; 1893, Merchants' National Bank v. Citizens', etc., Co., 159 Mass. 
 505; 1894, Appeal of Philler, 161 Pa. St. 157; 1898, Chicago, etc., Co. v. Chi- 
 cago National Bank, 176 111. 224; 1899, Colorado S. Co. v. Am. Pub. Co., 97 
 Fed. Rep. 843; 1899, First National Bank v. Garretson, 107 Iowa 196. 
 
 As to functions and powers of general managers, general superintendents, gen- 
 eral agents, eashiers, road-master, division superintendent, station-master, yard- 
 master, station agent, foreman, conductor, etc., see: 1884, The Louisville, Evans- 
 ville & St. L. R. Co. v. McKay, 98 Ind. 391, where the cases are collected 
 and discussed. 
 
 Further as to powers of general manager, see : 1898, Helena National Bank 
 v. Rocky, etc., Co., 20 Mont. 379, 63 Am. St. Rep. 628; 1898, Butte & B. Con. 
 M. Co. v. Mont. Ore. P. Co., 21 Mont. 539, 10 Am. & E. C. C. (N. S.) 415, note 
 419; 1899, New South Brewing, etc., Co. v. Shuck, 20 Ky. L. Rep. 2005, 10 A. 
 & E. C. C. (N. S.) 423. 
 
 SUBDIVISION III. INTERNAL RELATIONS AND CONSTITUTION. 
 
 ARTICLE I. THE CORPORATE FRANCHISES. 
 
 Sec. 195. The franchises of the corporation itself . "A cor- 
 poration aggregate is an artificial body of men, composed of 
 divers constituent members, ad instar corporis humani, the lig- 
 aments of which body politic or artificial body are the fran- 
 chises and liberties thereof, whicli bind and unite all its mem- 
 bers together; and the whole frame and essence of the corpora- 
 tion consists therein." Argument of Sergeant Pemberton in 
 King v. London, Carth. 217 (1692). 
 
 See, also, People v. Utica Insurance Co., 15 Johns. (N. Y.) 358, supra, p. 
 113; Spring Valley Water- Works v. Schottler, 62 Cal. 69, supra, p. 120, on pp, 
 
 45 WIL. CASES.
 
 J706 INTERNAL RELATIONS GENERALLY. 196 
 
 121 123 129; State, exrel. Waring, v. Medical Society, 38 Ga. 608, supra, p. 
 136, on p. 137; Fietsam v. Hay, 122 111. 293, mpra, p. 141, on pp. 141-442; 
 Memphis & L. R. Co. v. Railroad Commrs., 112 U. S. 609, supra, p. 143, on 
 pp 146-147; Wales v. Stetson, 2 Mass. 143, supra, p. 150, on p. 151; Biggins 
 v. Downward, 8 Hous. ^Del.) 227, supra, p. 152, on pp. 155-156. Note to arti- 
 cle iv, supra, p. 157. 
 
 Note. It has been said that "All the functions of a corporation are in one 
 sense franchises. The right to hold property in the corporate name, to sue 
 and be sued in that capacity, to have and use a corporate seal, and by that to 
 contract, and some others perhaps, are franchises, which constitute the very 
 definition of a corporation." Chief Justice Redfield,in State v. Boston, etc., 
 R. Co., 25 Vt. 442 (1853). Also Perley, C. J., in Pierce v. Emery, 32 N. H. 
 507 (1856), says: "A corporation is itself a franchise belonging to the mem- 
 bers of the corporation ; and a corporation, being itself a franchise, may hold 
 other franchises, as rights and franchises of the corporation, * *- '' and 
 being itself a franchise, consists and is made up of its rights and franchises." 
 
 It is sometimes difficult to distinguish between a franchise and a mere 
 license. Many of the courts hold that the right of way of a street railroad 
 company or the right to lay gas or water pipes, or erect telegraph or tele- 
 phone poles in the streets of a city granted by the 'city council is a franchise. 
 See, 1883, Hovelman v. Kansas City R. Co., 79 Mo. 632, on 643; 1885, New 
 Orleans, etc., R. Co. v. Delamore, 114 U. S. 501 ; 1888, State v. Madison, etc., 
 R. Co., 72 Wis. 612; 1888, People v. O'Brien, 111 N. Y. 1, 7 Am. St. Rep. 684, 
 2 L. R. A. 255; 1894, Detroit Citizens' S. R. Co. v. Detroit, 64 Fed. Rep. 628, 
 26 L. R. A. 667 ; 1896, Stevens v. City of Muskegon, 111 Mich. 72 ; 1897, Tower 
 v. Tower & S. S. R. Co., 68 Minn. 500, 64 Am. St. Rep. 493; 1897, Wright v. 
 Milwaukee, etc., R. Co., 95 Wis. 29, 60 Am. St. Rep. 74; 1897, Milwaukee 
 Elec. R. Co. v. Milwaukee, 95 Wis. 39, 60 Am. St. Rep. 81 ; 1897, State v. 
 East Fifth St. R. Co., 140 Mo. 539, 62 Am. St. Rep. 742, 38 L. R. A. 218; 1898, 
 Suburban etc., Co. v. Inhabitants, etc., 41 Atl. Rep. 865 (N. J. Ch ) ; 1898, 
 Ghee v. Northern Union Gas Co., 158 N. Y. 510; 1899, People v. Suburban R. 
 Co., 178 111. 594; 1899. East St. L. C. R. Co. v. E. St. L., 182 111. 433; 1899. 
 Township of Hamtramck v. Rapid R., 122 Mich. 472, 81 N. W. Rep. 337. 
 
 Other cases hold such grants to be licenses only. See, 1878, People v. Mu- 
 tual, etc., Co., 38 Mich. 154; 1885, Galveston, etc., R. Co. v. Gulf City, etc., 
 R. Co., 63 Texas 529; 1888, Atchison, etc., R. Co. v. Nave, 38 Kan. 744, 5. 
 Am. St. Rep. 800, note 804; 1893, Lake Roland El. Co. v. Baltimore, 77 Md. 
 352, 20 L. R. A. 126; 1894, City of Belleville v. Citizens', etc., R. Co., 152 111. 
 171, 26 L. R. A. 681. 
 
 Sec. 196. Franchises of the members. "It is likewise a fran- 
 chise for a number of persons to be incorporated and subsist 
 as a body politic ; with power to maintain perpetual succes- 
 sion, and do other corporate acts; and each individual mem- 
 ber of such corporation is also said to have a franchise or 
 freedom." Blackstone's Comm., Bk. II, p. *37. 
 
 See, also, State, ex rel. Waring, v. Medical Society, 38 Ga. 608, supra, p. 136 ; 
 Fietsam v. Hay, 122 111. 293, supra, p. 141; Memphis & L. R. Co. v. R. Com- 
 missioners, 112 U. S. 609, supra, p. 143. 
 
 Note. In Board of Trade of Chicago y. The People, 91 111. 80, it was held 
 that a member did not have a franchise in his membership sufficient to give 
 a court of appeals jurisdiction in appeal, under a statute authorizing appeals 
 in cases involving a franchise. The court's argument is given above in note 
 on pp. 161, 162. See cases infra on the right of corporations to expel mem- 
 bers, p. 1165.
 
 197 CONTRACTS IN THE CORPORATE CHARTER 707 
 
 ARTICLE II. CONTRACTS CONTAINED IN THE CHARTER OF A COR- 
 PORATION. 
 
 Sec. 197. ( I ) III general. ' ' The charter of a corporation having a 
 capital stock is a contract between three parties, and forms 
 the basis of three distinct contracts. The charter is a contract 
 between the state and the corporation; second, it is a con- 
 tract between the corporation and the stockholders; third, it 
 is a contract between the stockholders and the state." Cook 
 Stock and Stockholders, 3d ed., 492. 
 
 "The contracts which are ordinarily found in the charter of a pri- 
 vate corporation fall into three classes : ( i ) Those between 
 the state and the incorporators. * * * (2) Contracts 
 between the corporation and the stockholders. * * * (3) 
 Contracts between the corporation and persons dealing with 
 the corporation, such as statements in the charter or law, that 
 the capital stock shall be a certain amount." Elliott Corpora- 
 tions, 98; Beach Corp., 2224. 
 
 By incorporation for business purposes, the corporators acquire 
 from the state a franchise to employ certain methods of acting (which 
 they could not otherwise lawfully exercise), and certain designated 
 funds or property, in attaining or furthering certain specified objects. 
 It is the dedication of certain funds, by the mutual and express con- 
 sent of the state and the corporators, to the attainment of certain pur- 
 poses, in a certain way. Because the state believes the purposes de- 
 sirable, it authorizes the peculiar method; because the corporators 
 deem the method necessary or desirable, and the end profitable, they 
 contribute the funds. The peculiar method is by the state authoriz- 
 ing a changing body of persons, through a specified form of organiza- 
 tion, and under a designated name, to act and be considered as one 
 person in whom are vested the funds contributed, and upon whom is 
 placed the duty of applying them to the purposes named. The state 
 has the right to have the funds so applied ; so does the corporation ; 
 so do the members ; so do those who are selected to act in the corpo- 
 rate name ; so do those who become creditors in the performance of 
 the corporate functions. In this way there arise many implied con- 
 tracts or grants of franchises, as to the purposes to be accomplished, 
 the method of accomplishing them, and the application of the funds 
 thereto, protected under the national constitutional provision that "no 
 state shall pass any law impairing the obligation of contracts." (Art. 
 i, 10, ch. i.
 
 70S DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 Sec. 198. Same. 
 
 TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD. 1 
 
 1819. IN THE SUPREME COURT OF THE UNITED STATES. 4 Wheaton 
 (17 U. S.) Rep. 5i8- 7l5 . 
 
 February 2, 1819. The opinion of the court was delivered by 
 MARSHALL, Ch. J. This is an action of trover, brought by the trust- 
 ees of Dartmouth College against William H. Woodward, in the state 
 court of New Hampshire, for the book of records, corporate seal and 
 other corporate property, to which the plaintiffs allege themselves to 
 be entitled. A special verdict, after setting out the rights of the par- 
 ties, finds for the defendant, if certain acts of the legislature of New 
 Hampshire, passed on the 27th of June, and on the i8th of December, 
 1816, be valid and binding on the trustees, without their assent, and 
 not repugnant to the constitution of the United States ; otherwise, it 
 finds for the plaintiffs. The superior court of judicature of New 
 Hampshire rendered a judgment upon this verdict for the defendant, 
 which judgment has been brought before this court by writ of error. 
 The single question now to be considered is, do the acts to which the 
 verdict refers violate the constitution of the United States ? 
 
 This court can be insensible neither to the magnitude nor delicacy 
 of this question. The validity of a legislative act is to be examined ; 
 and the opinion of the highest law tribunal of a state is to be revised 
 an opinion which carries with it intrinsic evidence of the diligence, 
 of the ability and the integrity with which it was formed. On more 
 than one occasion this court has expressed the cautious circumspection 
 with which it approaches the consideration of such questions; and 
 has declared that in no doubtful case would it pronounce a legisla- 
 tive act to be contrary to the constitution. But the American people 
 have said, in the constitution of the United States, that "no state shall 
 pass any bill of attainder, ex post facto law, or law impairing the ob- 
 ligation of contracts." In the same instrument, they have also said, 
 "that the judicial power shall extend to all cases in law and equity 
 arising under the constitution." On the judges of this court, then, is 
 imposed the high and solemn duty of protecting, from even legislative 
 violation, those contracts which the constitution of our country has 
 placed beyond legislative control ; and, however irksome the task may 
 be, this is a duty from which we dare not shrink. 
 
 1 Facts are sufficiently stated in the opinions, and supra, p. 426. Arguments, 
 and parts of the opinions of Story and Washington, JJ., omitted. The case 
 was argued in the state court by Mason, Smith and Webster, for plaintiffs, 
 and by Sullivan and Bartlett, for defendants ; in the United States Supreme 
 Court by Webster and Hopkinson, for plaintiff in error, and by Holmes and 
 William Wirt, attorney-general, for defendants in error. The decision of the 
 state court is reported (without the arguments of counsel) in 1 N. H. Ill, and 
 reprinted (with the arguments of counsel) in 65 N. H. 473. Farrar's Report 
 (1817, 1819) contains decisions of both courts. The original charter and the 
 acts of the state legislature are given in full in 4 Wheat. 519-551.
 
 198 CONTRACTS IX THE CORPORATE CHARTER. 
 
 The title of the plaintiffs originates in a charter dated the I3th day 
 of December, in the year 1769, incorporating twelve persons therein 
 mentioned by the name of "The Trustees of Dartmouth College," 
 granting to them and their successors the usual corporate privileges 
 and powers, and authorizing the trustees, who are to govern the col- 
 lege, to fill up all vacancies which may be created in their own body. 
 
 The defendant claims under three acts of the legislature of New 
 Hampshire, the most material of which was passed on the 27th of 
 June, 1816, and is entitled "an act to amend the charter and enlarge 
 and improve the corporation of Dartmouth College." Among other 
 alterations in the charter, this act increases the number of trustees to 
 twenty-one, gives the appointment of the additional members to the 
 executive of the state, and creates a board of overseers, with power 
 to inspect and control the most important acts of the trustees. This 
 board consists of twenty-five persons. The president of the senate, 
 the speaker of the house of representatives of New Hampshire, and 
 the governor and lieutenant-governor of Vermont, for the time being, 
 are to be members ex officio. The board is to be completed by the 
 governor and council of New Hampshire, who are also empowered to 
 fill all vacancies which may occur. The acts of the iSth and 26th of 
 December are supplemental to that of the 27th of June, and are prin- 
 cipally intended to carry that act into effect. The majority of the 
 trustees of the college have refused to accept this amended charter, 
 and have brought this suit for the corporate property, which is in pos- 
 session of a person holding by virtue of the acts which have been 
 stated. 
 
 [The circumstances constituted a contract.] It can require no argu- 
 ment to prove, that the circumstances of this case constitute a 
 contract. An application is made to the crown for a charter to in- 
 corporate a religious and literary institution. In the application* it 
 is stated, that large contributions have been made for the object, -which 
 will be conferred on the corporation, as soon as it shall be created. 
 The charter is granted, and on its faith the property is conveyed. 
 Surely, in this transaction every ingredient of a complete and legiti- 
 mate contract is to be found. The points for consideration are: i. 
 Is this contract protected by the constitution of the United States? 2. 
 Is it impaired by the acts under which the defendant holds? 
 
 i. [Character of contracts protected by the constitution.] On the 
 first point it has been argued that the word "contract," in its broadest 
 sense, would comprehend the political relations between the govern- 
 ment and its citizens; would extend to offices held within a state, for 
 state purposes, and to many of those laws concerning civil institutions, 
 which must change with circumstances, and be modified by ordinary 
 legislation; which deeply concern the public, and which, to preserve 
 good government, the public judgment must control. That even mar- 
 riage is a contract, and its obligations are affected by the laws respect- 
 ing divorces. That the clause in the constitution, if construed in its 
 greatest latitude, would prohibit these laws. Taken in its broad, un- 
 limited sense, the clause would be an unprofitable and vexatious inter-
 
 710 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 ference with the internal concerns of a state, would unnecessarily and 
 unwisely embarrass its legislation and render immutable those civil 
 institutions which are established for purposes of internal government, 
 and which, to subserve those purposes, ought to vary with varying 
 circumstances. That as the framers of the constitution could never 
 have intended to insert in that instrument a provision so unnecessary, 
 so mischievous and so repugnant to its general spirit, the term "con- 
 tract" must be understood in a more limited sense. That it must be 
 understood as intended to guard against a power of at least doubtful 
 utility, the abuse of which had been extensively felt, and to restrain 
 the legislature in future from violating the right to property. That 
 anterior to the formation of the constitution a course of legislation had 
 prevailed in many, if not in all, of the states which weakened the 
 confidence of man in man, and embarrassed all transactions between 
 individuals by dispensing with a faithful performance of engagements. 
 To correct this mischief by restraining the power which produced it 
 the state legislatures were forbidden "to pass any law impairing the 
 obligation of contracts," that is, of contracts respecting property un- 
 der which some individual could claim a right to something beneficial 
 to himself, and that since the clause in the constitution must in con- 
 struction receive some limitation, it may be confined, and ought to be 
 confined, to cases of this description, to cases within the mischief it 
 was intended to remedy. 
 
 The general correctness of these observations can not be contro- 
 verted. That the framers of the constitution did not intend to re- 
 strain the states in the regulation of their civil institutions, adopted for 
 internal government, and that the instrument they have given us is 
 not to be so construed, may be admitted. The provision of the con- 
 stitution never has been understood to embrace other contracts than 
 those which respect property, or some object of value, and confer 
 rights which may be asserted in a court of justice. It has never been 
 understood to restrict the general right of the legislature to legislate 
 on the subject of divorces. Those acts enable some tribunals, not to 
 impair a marriage contract, but to liberate one of the parties because it 
 has been broken by the other. When any state legislature shall pass an 
 act annulling all marriage contracts, or allowing either party to annul 
 it without the consent of the other, it will be time enough to inquire 
 whether such an act be constitutional. 
 
 The parties in this case differ less on general principles, less on true 
 construction of the constitution in the abstract, than on the application 
 of those principles to this case, and on the true construction of the 
 charter of 1769. This is the point on which the cause essentially de- 
 pends. If the act of incorporation be a grant of political power, if it 
 create a civil institution to be employed in the administration of the 
 government, or if the funds of the college be public property, or if 
 the state of New Hampshire, as a government, be alone interested in 
 its transactions, the subject is one in which the legislature of the state 
 may act according to its own judgment, unrestrained by any limita- 
 tion of its power imposed by the constitution of the United States.
 
 198 CONTRACTS IN THE CORPORATE CHARTER Jl I 
 
 But if this be a private eleemosynary institution, endowed with a 
 capacity to take property for objects unconnected with government, 
 whose funds are bestowed by individuals, on the faith of the charter; 
 if the donors have stipulated for the future disposition and manage- 
 ment of those funds in the manner prescribed by themselves, there 
 may be more difficulty in the case, although neither the persons who 
 have made these stipulations, nor those for whose benefit they were 
 made, should be parties to the cause. Those who are no longer in- 
 terested in the property may yet retain such an interest in the preser- 
 vation of their own arrangements as to have a right to insist that those 
 arrangements shall be held sacred. Or, if they have themselves dis- 
 appeared, it becomes a subject of serious and anxious inquiry, whether 
 those whom they have legally empowered to represent them forever 
 may not assert all the rights which they possessed while in being ; 
 whether, if they be without personal representatives, who may feel 
 injured by a violation of the compact, the trustees be not so completely 
 their representatives, in the eye of the law, as to stand in their place, 
 not only as respects the government of the college, but also as respects 
 the maintenance of the college charter. It becomes then the duty of 
 the court most seriously to examine this charter and to ascertain its 
 true character. 
 
 [Provisions of the charter.] From the instrument itself, it appears 
 that about the year 1754 the Rev. Eleazer Wheelock established, at 
 his own expense and on his own estate, a charity school for the in- 
 struction of Indians in the Christian religion. The success of this 
 institution inspired him with the design of soliciting contributions in 
 England for carrying on and extending his undertaking. In this pious 
 work he employed the Rev. Nathaniel Whitaker, who, by virtue of a 
 power of attorney from Dr. Wheelock, appointed the Earl of Dart- 
 mouth and others trustees of the money which had been and should 
 be contributed ; which appointment Dr. Wheelock confirmed by a 
 deed of trust, authorizing the trustees to fix on a site for the college. 
 They determined to establish the school on Connecticut river, in the 
 western part of New Hampshire ; that situation being supposed favor- 
 able for carrying on the original design among the Indians, and also 
 for promoting learning among the English ; and the proprietors in the 
 neighborhood having made large offers of land on condition that the 
 college should there be placed. Dr. Wheelock then applied to the 
 crown for an act of incorporation ; and represented the expediency of 
 appointing those whom he had, by his last will, named as trustees in 
 America to be members of the proposed corporation. "In consid- 
 eration of the premises, for the education and instruction of the youth 
 of the Indian tribes," etc., "and also of English youth, and any 
 others," the charter was granted, and the trustees of Dartmouth Col- 
 lege were, by that name, created a body corporate, with power, for 
 the use of the said college, to acquire real and personal property, and to 
 pay the president, tutors and other officers of the college such salaries 
 as they shall allow. 
 
 The charter proceeds to appoint Eleazer Wheelock, "the founder of
 
 712 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 ! said college," president thereof, with power, by his last will, to ap- 
 point a successor, who is to continue in office until disapproved by 
 the trustees. In case of vacancy the trustees may appoint a president, 
 and in case of the ceasing of a president, the senior professor or tutor, 
 being one of the trustees, shall exercise the office until an appoint- 
 ment shall be made. The trustees have power to appoint and dis- 
 place professors, tutors and other officers, and to supply any vacancies 
 which may be created in their own body by death, resignation, 
 removal or disability; and also to make orders, ordinances and laws 
 for the government of the college, the same not being repugnant to 
 the laws of Great Britain, or of New Hampshire, and not excluding 
 any person on account of his speculative sentiments in religion, or his 
 being of a religious profession different from that of the trustees. 
 This charter was accepted, and the property, both real and personal, 
 which had been contributed for the benefit of the college, was con- 
 veyed to, and vested in, the corporate body. 
 
 From this brief review of the most essential parts of the charter, it 
 is apparent that the funds of the college consisted entirely of private 
 donations. It is, perhaps, not very important who were the donors. 
 The probability is, that the Earl of Dartmouth and the other trustees 
 in England were, in fact, the largest contributors. Yet the legal con- 
 clusion, from the facts recited in the charter, would probably be that 
 Dr. Wheelock was the founder of the college. The origin of the 
 institution was undoubtedly the Indian chanty school, established by 
 Dr. Wheelock, at his own expense. It was at his instance, and to 
 enlarge this school, that contributions were solicited in England. The 
 person soliciting these contributions was his agent; and the trustees 
 who received the money were appointed by, and act under, his author- 
 ity. It is not too much to say that the funds were obtained by him in 
 trust, to be applied by him to the purposes of his enlarged school. 
 The charter of incorporation was granted at his instance. The per- 
 sons named by him in his last will as the trustees of his charity school 
 compose a part of the corporation, and he is declared to be the 
 founder of the college, and its president for life. Were the inquiry 
 material, we should feel some hesitation in saying that Dr. Wheelock 
 was not, in law, to be considered as the founder (i Bl. Comm.48i)of 
 this institution, and as possessing all the rights appertaining to that 
 character. But be this as it may, Dartmouth College is really en- 
 dowed by private individuals, who have bestowed their funds for the 
 propagation of the Crmstian religion among the Indians, and for the 
 promotion of piety and learning generally. From these funds the sala- 
 ries of the tutors are drawai, and these salaries lessen the expense of 
 education to the students. It is then an eleemosynary (r Bl. Comm. 
 471), and so far as respects its funds, a private, corporation. 
 
 [Character of the corporation created.] Doits objects stamp on it a 
 different character? Are the trustees and professors public officers, 
 invested with any portion of political power, partaking in any degree 
 in the administration of civil government, and performing duties which 
 flow from the sovereign authority? That education is an object of
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 713 
 
 national concern, and a proper subject of legislation, all admit. That 
 there maybe an institution, founded by government, and placed en- 
 tirely under its immediate control, the officers of which would be pub- 
 lic officers, amenable exclusively to government, none will deny. But 
 is Dartmouth College such an institution? Is education altogether 
 in the hands of government? Does every teacher of youth become 
 a public officer, and do donations for the purpose of education nec- 
 essarily become public property, so far that the will of the legisla- 
 ture, not the will of the donor, becomes the law of the donation ? 
 These questions are of serious moment to society, and deserve to be 
 well considered. 
 
 Doctor Wheelock, as the keeper of his charity school, instructing 
 the Indians in the art of reading and in our holy religion, sustaining 
 them at his own expense, and on the voluntary contributions of the 
 charitable, could scarcely be considered as a public officer, exercising 
 any portion of those duties which belong to government; nor could 
 the legislature have supposed that his private funds, or those given by 
 others, were subject to legislative management, because they were ap- 
 plied to the purposes of education. When, afterwards, his school 
 was enlarged, and the liberal contributions made in England and in 
 America enabled him to extend his care to the education of the 
 youth of his own country, no change was wrought in his own character 
 or in the nature of his duties. Had he employed assistant tutors with the 
 funds contributed by others, or had the trustees in England established 
 a school, with Dr. Wheelock at its head, and paid salaries to him and 
 his assistants, they would still have been private tutors; and the fact 
 that they were employed in the education of youth could not have 
 converted them into public officers, concerned in the administration 
 of public duties, or have given the legislature a right to interfere in 
 the management of the fund. The trustees, in whose care that fund 
 was placed by the contributors, would have been permitted to exe- 
 cute their trust, uncontrolled by legislative authority. 
 
 Whence, then, can be derived the idea that Dartmouth College has 
 become a public institution, and its trustees public officers exercising 
 powers conferred by the public for public objects ? Not from the source 
 whence its funds were drawn ; for its foundation is purely private and 
 eleemosynary not from the application of those funds ; for money 
 may be given for education, and the persons receiving it do not, by 
 being employed in the education of youth, become members of the 
 civil government. Is it from the act of incorporation ? Let this sub- 
 ject be considered. 
 
 A corporation is an artificial being, invisible, intangible, and ex- 
 isting only in contemplation of law. Being the mere creature of 
 'law, it possesses only those properties which the charter of its crea- 
 tion confers upon it, either expressly or as incidental to its very exist- 
 ence. These are such as are supposed best calculated to effect the 
 object for which it was created. Among the most important arc im- 
 mortality, and, if the expression may be allowed, individuality ; 
 properties by which a perpetual succession of many persons are con-
 
 714 DARTMOUTH COLLEGE V. WOODWARD. 
 
 sidered as the same, and may act as a single individual. They enable 
 a corporation to manage its own affairs and to hold property without 
 the perplexing intricacies, the hazardous and endless necessity of per- 
 petual conveyances for the purpose of transmitting it from hand to 
 hand. It is chiejly for the purpose of clothing the bodies of men 
 in succession with these qualities and capacities that corporations 
 were invented and are in use. By these means a perpetual succession 
 of individuals are capable of acting for the promotion of the par- 
 ticular object, like one immortal being. But this being does not share 
 in the civil government of the country, unless that be the purpose for 
 which it was created. Its immortality no more confers on it political 
 power or a political character than immortality would' confer such 
 power or character on a natural person. It is no more a state instru- 
 ment than a natural person exercising the same powers would be. If, 
 then, a natural person employed by individuals in the education of 
 youth or for the government of a seminary in which youth is educated 
 would not become a public officer or be considered as a member of 
 the civil government, how is it that this artificial being, created by 
 law for the purpose of being employed by the same individuals for 
 the same purposes, should become a part of the civil government of 
 the country? Is it because its existence, its capacities, its powers, are 
 given by law? Because the government has given it the power to 
 take and to hold property in a particular form and for particular pur- 
 poses, has the government a consequent right substantially to change 
 that form or to vary the purposes to which the property is to be ap- 
 plied ? This principle has never been asserted or recognized, and is 
 supported by no authority. Can it derive aid from reason? 
 
 The objects for which a corporation is created are universally such 
 as the government wishes to promote. They are deemed beneficial 
 to the country; and this benefit constitutes the consideration, and in 
 most cases the sole consideration of the grant. In most eleemosynary 
 institutions, the object would be difficult, perhaps unattainable, with- 
 out the aid of a charter of incorporation. Charitable or public-spirited 
 individuals, desirous of making permanent appropriations for chari- 
 table or other useful purposes, find it impossible to effect their design 
 securely and certainly without an incorporating act. They apply to 
 the government, state their beneficent object, and offer to advance the 
 money necessary for its accomplishment, provided the government 
 will confer on the instrument which is to execute their designs the 
 capacity to execute them. The proposition is considered and ap- 
 proved. The benefit to the public is considered as an ample com- 
 pensation for the faculty it confers, and the corporation is created. If 
 the advantages to the public constitute a full compensation for the 
 faculty it gives, there can be no reason for exacting a further compen- 
 sation, by claiming a right to exercise over this artificial being a 
 power which changes its nature, and touches the fund for the security 
 and application of which it was created. There can be no reason for 
 implying in a charter, given for a valuable consideration, a power
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 715 
 
 which is not only not expressed, but is in direct contradiction to its 
 express stipulations. 
 
 From the fact, then, that a charter of incorporation has been 
 granted, nothing can be inferred which changes the character of the 
 institution, or transfers to the government any new power over it. 
 The character of civil institutions does not grow out of their incorpo- 
 ration, but out of the manner in which they are formed, and the objects 
 for which they are created. The right to change them is not founded 
 on their being incorporated, but on their being the instruments of 
 government, created for its purposes. The same institutions, created 
 for the same objects^ though not incorporated, would be public insti- 
 tutions, and, of course, be controllable by the legislature. The in- 
 corporating act neither gives nor prevents this control. Neither, in 
 reason, can the incorporating act change the character of a private 
 eleemosynary institution. 
 
 We are next led to the inquiry for whose benefit the property given 
 to Dartmouth College was secured? The counsel for the defendant 
 have insisted that the beneficial interest is in the people of New 
 Hampshire. The charter, after reciting the preliminary measures 
 which had been taken, and the application for an act of incorpora- 
 tion, proceeds thus: "Know ye, therefore, that we, considering the 
 premises, and being willing to encourage the laudable and charitable 
 design of spreading Christian knowledge among the savages of our 
 American wilderness, and also that the best means of education be 
 established in our province of New Hampshire, for the benefit of 
 said province, do of our special grace," etc. Do these expressions 
 bestow on New Hampshire any exclusive right to the property of the 
 college, any exclusive interest in the labors of the professors? Or do 
 they merely'indicate a willingness that New Hampshire should enjoy 
 those advantages which result to all from the establishment of a semi- 
 nary of learning in the neighborhood? On this point, we think it im- 
 possible to entertain a serious doubt. The words themselves, unex- 
 plained by the context, indicate that the "benefit intended for the' 
 province" is that which is derived from "establishing the best means 
 of education therein," that is, from establishing in the province 
 Dartmouth College, as constituted by the charter. But if these 
 words, considered alone, could admit of doubt, that doubt is com- 
 pletely removed by an inspection of the entire instrument. 
 
 The particular interests of New Hampshire never entered into the 
 minds of the donors, never constituted a motive for their donation. 
 The propagation of the Christian religion among the savages, and the 
 dissemination of useful knowledge among the youth of the country, 
 were the avowed and the sole objects of their contributions. In these 
 New Hampshire would participate, but nothing particular or exclu- 
 sive was intended for her. Even the site of the college was selected, 
 not for the sake of New Hampshire, but becacse it was "most sub- 
 servient to the great ends in view," and because liberal donations of 
 land were offered by the proprietors, on condition that the institution 
 should be there established. The real advantages from the location
 
 716 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 of the college are, perhaps, not less considerable to those on the west 
 than to those on the east side of Connecticut river. The clause 
 which constitutes the incorporation, and expresses the object for 
 which it was made, declares those objects to be the instruction of the . 
 Indians, "and also of English youth, and any others." So that the 
 objects of the contributors, and the incorporating act, were the same ; 
 the promotion of Christianity, and of education generally, not the in- 
 terests of New Hampshire particularly. 
 
 From this review of the charter it appears that Dartmouth College 
 is an eleemosynary institution, incorporated for the purpose of per- 
 petuating the application of the bounty of the donors to the specified 
 objects of that bounty ; that its trustees or governors were originally 
 named by the founder and invested with the power of perpetuating 
 themselves ; that they are not public officers ; nor is it a civil institu- 
 tion, participating in the administration of government, but a charity 
 school, or a seminary of education, incorporated for the preservation 
 of its property and the perpetual application of that property to the 
 objects of its creation. 
 
 , [Rig-ht of trustees to complain.] Yet a question remains to be consid- 
 ered, of more real difficulty, on which more doubt has been entertained 
 than on all that have been discussed. The founders of the college, 
 at least those whose contributions were in money, have parted with 
 the property bestowed upon it, and their representatives have no in- 
 terest in that property. The donors of land are equally without 
 interest so long as the corporation shall exist. 
 
 Could they be found, they are unaffected by any alteration in its 
 constitution, and probably regardless of its form, or even of its exist- 
 ence. The students are fluctuating, and no individual among our 
 youth has a vested interest in the institution which can b'e asserted in 
 a court of justice. Neither the founders of the college, nor the youth 
 for whose benefit it was founded, complain of the alteration made in 
 its charter, or think themselves injured by it. The trustees alone 
 complain, and the trustees have no beneficial interest to be protected. 
 Can this be such a contract as the constitution intended to withdraw 
 from the power of state legislation ? Contracts, the parties to which 
 have a vested beneficial interest, and those only, it has been said, are 
 the objects about which the constitution is solicitous, and to which its 
 protection is extended. 
 
 The court has bestowed on this argument the most deliberate con- 
 sideration, and the result will be stated. Dr. Wheelock, acting for 
 himself and for those who, at his solicitation, had made contributions 
 to his school, applied for this charter, as the instrument which should 
 enable him and them to perpetuate their beneficent intention. It was 
 granted. An artificial, immortal being was created by the crown, 
 capable of receiving and disti'ibuting forever, according to the will of 
 the donors, the donations which should be made to it. On this being the 
 contributions which had been collected were immediately bestowed. 
 These gifts were made, not indeed to make a profit for the donors or 
 their posterity, but for something, in their opinion, of inestimable
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 
 
 value ; for something which they deemed a full equivalent for the 
 money with which it was purchased. The consideration for which they 
 stipulated is the perpetual application of the fund to its object, in the 
 mode prescribed by themselves. Their descendants may take no in- 
 terest in the preservation of this consideration. But in this respect 
 their descendants are not their representatives ; they are represented 
 by the corporation. The corporation is the assignee of their rights, 
 stands in their place, and distributes their bounty as they would them- 
 selves have distributed it had they been immortal. So, with respect 
 to the students who are to derive learning from this source, the cor- 
 poration is a trustee for them also. Their potential rights, which, 
 taken distributively, are imperceptible, amount collectively to a most 
 important interest. These are, in the aggregate, to be exercised, as- 
 serted and protected by the corporation. They were as completely 
 out of the donors, at the instant of their being vested in the corpora- 
 tion, and as incapable of being asserted by the students, as at present. 
 
 According to the theory of the British constitution, their parliament 
 is omnipotent. To annul corporate rights might give a shock to pub- 
 lic opinion which that government has chosen to avoid, but its power 
 is not questioned. Had parliament, immediately after the emanation 
 of this charter and the execution of those conveyances which followed 
 it, annulled the instrument, so that the living donors would have wit- 
 nessed the disappointment of their hopes, the perfidy of the trans- 
 action would have been universally acknowledged. Yet then, as now, 
 the donors would have no interest in the property; then, as now, 
 those who might be students would have had no rights to be violated ; 
 then, as now, it might be said that the trustees, in whom the rights of 
 all were combined, possessed no private, individual, beneficial in- 
 terests in the property confided to their protection. Yet the contract 
 would, at that time, have been deemed sacred by all. What has since 
 occurred to strip it of its inviolability? Circumstances have not 
 changed it. In reason, in justice and in law, it is now what it was 
 in 1769. 
 
 This is plainly a contract to 'which the donors, the trustees and the 
 crown (to whose rights and obligations New Hampshire succeeds) 
 were the original parties. It is a contract made on a valuable con- 
 sideration. It is a contract for the security and disposition of prop- 
 erty . It is a contract on the faith of which real and personal estate 
 has been conveyed to the corporation. It is, then, a contract within 
 the letter of the constitution, and within its spirit also, unless the 
 fact that the property is invested by the donors in trustees for the pro- 
 motion of religion and education, for the benefit of persons who are 
 perpetually changing, though the objects remain the same, shall cre- 
 ate a particular exception, taking this case out of the prohibition 
 contained in the constitution. 
 
 [Method of interpreting 1 the constitutional provision.] It is more than 
 possible that the preservation of rights of this description was not 
 particularly in the view of the framers of the constitution when the 
 clause under consideration was introduced into that instrument. It is
 
 718 DARTMOUTH COLLEGE V'. WOODWARD. 198 
 
 probable that interferences of more frequent occurrence, to which the 
 temptation was stronger, and of which the mischief was more exten- 
 sive, constituted the great motive for imposing this restriction on the 
 state legislatures. But although a particular and a rare case may not, 
 in itself, be of sufficient magnitude to induce a rule, yet it must be 
 governed by the rule, when established, unless some plain and strong 
 reason for excluding it can be given. It is not enough to say that this 
 particular case was not in the mind of the convention when the article 
 was framed, nor of the American people when it was adopted. It is 
 necessary to go further and to say that had this particular case been 
 suggested the language would have been so varied as to exclude it, or 
 it would have been made a special exception. The case being within 
 the words of the rule must be within its operation likewise, unless 
 there be something in the literal construction so obviously absurd, or 
 mischievous, or repugnant to the general spirit of the instrument, 
 as to justify those who expound the constitution in making it an ex- 
 ception. 
 
 On what safe and intelligible ground can this exception stand? 
 There is no expression in the constitution, no sentiment delivered by 
 its contemporaneous expounders, which would justify us in making it. 
 In the absence of all authority of this kind, is there, in the nature and 
 reason of the case itself, that which would sustain a construction of the 
 constitution not warranted by its words ? Are contracts of this descrip- 
 tion of a character to excite so little interest that we must exclude 
 them from the provisions of the constitution as being unworthy of the 
 attention of those who framed the instrument? Or does public policy 
 so imperiously demand their remaining exposed to legislative altera- 
 tion as to compel us, or rather permit us, to say that these words, 
 which were introduced to give stability to contracts, and which, in 
 their plain import comprehend this contract, must yet be so construed 
 as to exclude it? 
 
 Almost all eleemosynary corporations, those which are created for 
 the promotion of religion, of charity, or of education, are of the same 
 character. The law of this case is the law of all. In every literary 
 or charitable institution, unless the objects of the bounty be themselves 
 incorporated, the whole legal interest is in trustees, and can be as- 
 serted only by them. The donors, or claimants of the bounty, if -they 
 can appear in court at all, can appear only to complain of the trustees. 
 In all other situations they are identified with, and personated by, the 
 trustees; and their rights are to be defended and maintained by them. 
 Religion, charity and education are, in the law of England, legatees 
 or donees, capable of receiving bequests or donations in this form. 
 They appear in court and claim or defend by the corporation. Are 
 they of so little estimation in the United States that contracts for their 
 benefit must be excluded from the protection of words, which in their 
 natural import include them? Or do such contracts so necessarily 
 require new modeling by the authority of the legislature that the ordi- 
 nary rules of construction must be disregarded in order to leave them 
 exposed to legislative alteration?
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 
 
 All feel that these objects are not deemed unimportant in the 
 United States. The interest which this case has excited proves that 
 they are not. The framers of the constitution did not deem them un- 
 worthy of its care and protection. They have, though in a different 
 mode, manifested their respect for science by reserving to the govern- 
 ment of the Union the power "to promote the progress of science and 
 useful arts by securing for limited times to authors and inventors the 
 exclusive right to their respective writings and discoveries." They 
 have, so far, withdrawn science and the useful arts from the action of 
 the state governments. Why, then, should they be supposed so 
 regardless of contracts made for the advancement of literature, as to 
 intend to exclude them from provisions made for the security of ordi- 
 nary contracts between man and man ? No reason for making this 
 supposition is perceived. 
 
 If the insignificance of the object does not require that we should 
 exclude contracts respecting it from the protection of the constitution ; 
 neither, as we conceive, is the policy of leaving them subject to legis- 
 lative alteration so apparent as to require a forced construction of 
 that instrument in order to effect it. These eleemosynary institu- 
 tions do not fill the place which would otherwise be occupied by 
 government, but that which would otherwise remain vacant. They 
 are complete acquisitions to literature. They are donations to educa- 
 tion ; donations which any government must be disposed rather to 
 encourage than to discountenance. It requires no very critical exami- 
 nation of the human mind to enable us to determine that one great 
 inducement to these gifts is the conviction felt by the giver that the 
 disposition he makes of them is immutable. It is probable that no 
 man ever was, and that'no man ever will be, the founder of a college, 
 believing at the time that an act of incorporation constitutes no 
 security for the institution ; believing that it is immediately to be 
 deemed a public institution, whose funds are to be governed and ap- 
 plied, not by the will of the donor, but by the will of the legislature. 
 All such gifts are made in the pleasing, perhaps delusive, hope, that 
 the charity will flow forever in the channel which the givers have 
 marked out for it. If every man finds in his own bosom strong evi- 
 dence of the universality of this sentiment, there can be but little rea- 
 son to imagine that the framers of our constitution were strangers 
 to it, and that, feeling the necessity and policy cf giving permanence 
 and security to contracts, of withdrawing them from the influence of 
 legislative bodies, whose fluctuating policy and repeated interfer- 
 ences produced the most perplexing and injurious embarrassments, 
 they still deemed it necessary to leave these contracts subject to those 
 interferences. The motives for such an exception must be very 
 powerful to justify the construction which makes it. 
 
 [Reasons suggested for making an exception of such corporations.] The 
 motives suggested at the bar grow out of the original appointment of 
 the trustees, which is supposed to have been in a spirit hostile to the 
 genius of our government, and the presumption, that if allowed to 
 continue themselves, they now are, and must remain forever, what
 
 72O DARTMOUTH COLLEGE V. WOODWARD. ' 1 98 
 
 they originally were. Hence is inferred the necessity of applying to 
 this corporation, and to other similar corporations, the correcting and 
 improving hand of the legislature. It has been urged repeatedly, 
 and certainly with a degree of earnestness which attracted attention, 
 that the trustees, deriving their power from a regal source, must, 
 necessarily, partake of the spirit of their origin ; and that their first 
 principles, unimproved by that resplendent light which has been shed 
 around them, must continue to govern the college and to guide the 
 students. 
 
 Before we inquire into the influence which this argument ought to 
 have on the constitutional question, it may not be amiss to examine 
 the fact on which it rests. The first trustees were undoubtedly 
 named in the charter by the crown ; but at whose suggestion were 
 they named? By whom were they selected? The charter informs us. 
 Dr. Wheelock had represented "that for many weighty reasons it 
 would be expedient that the gentlemen whom he had already nomi- 
 nated, in his last will, to be trustees in America should be of the cor- 
 poration now proposed." When, afterwards, the trustees are named 
 in the charter, can it be doubted that the persons mentioned by Dr. 
 Wheelock in his will were appointed? Some were probably added 
 by the crown, with the approbation of Dr. Wheelock. Among these 
 is the doctor himself. If any others were appointed at the instance of 
 the crown, they are the governor, three members of the council and 
 the speaker of the house of representatives of the colony of New 
 Hampshire. The stations filled by these persons ought to rescue them 
 from any other imputation than too great a dependence on the crown. 
 If, in the revolution that followed, they acted under the influence of 
 this sentiment, they must have ceased to be trustees; if they took part 
 with their countrymen, the imputation, which suspicion might ex- 
 cite, would no longer attach to them. The original trustees, then, or 
 most of them, were named by Dr. Wheelock, and those who were 
 added to his nomination, most probably with his approbation, were 
 among the most eminent and respectable individuals in New Hamp- 
 shire. 
 
 The only evidence which we possess of the character of Dr. Whee- 
 lock is furnished by this charter. The judicious means employed for 
 the accomplishment of his object, and the success which attended his 
 endeavors, would lead to the opinion that he united a sound under- 
 standing to that humanity and benevolence which suggested his un- 
 dertaking. It surely can not be assumed that his trustees were selected 
 without judgment. With as little probability can it be assumed, that 
 while the light of science and of liberal principles pervades the whole 
 community, these originally benighted trustees remain in utter dark- 
 ness, incapable of participating in the general improvement ; that 
 while the human race is rapidly advancing, they are stationary. Rea- 
 soning a priori, we should believe, that learned and intelligent men, 
 selected by its patrons for 'the government of a literary institution, 
 would select learned and intelligent men for their successors ; men as 
 well fitted for the government of a college as those who might be
 
 CONTRACTS IN THE CORPORATE CHARTER. /2I 
 
 chosen by other means. Should this reasoning ever prove erroneous, 
 in a particular case, public opinion, as has been stated at the bar, 
 would correct the institution. The mere possibility of the contrary 
 would not justify a construction of the constitution which should ex- 
 clude these contracts from the protection of a provision whose terms 
 comprehend them. 
 
 The opinion of the court, after mature deliberation, is that this is a 
 contract, the obligation of which can not be impaired without violating 
 the constitution of the United States. This opinion appears to us to 
 be equally supported by reason and by the former decisions of this 
 court. 
 
 2. [Impairment of the obligation of this contract.] We next proceed 
 to the inquiry whether its obligation has been impaired by those acts 
 of the legislature of New Hampshire to which the special verdict re- 
 fers ? 
 
 From the review of this charter which has been taken it appears 
 that the whole power of governing the college, of appointing and re- 
 moving tutors, of fixing their salaries, of directing the course of study 
 to be pursued by the students and of filling up vacancies created in 
 their own body, was vested in the trustees. On the part of the crown 
 it was expressly stipulated that this corporation thus constituted should 
 continue forever, and that the number of trustees should forever con- 
 sist of twelve, and no more. By this contract the crown was bound, 
 and could have made no violent alteration in its essential terms with- 
 out impairing its obligation. 
 
 [Effect of the American revolution.] By the revolution the duties, as well 
 as the powers, of government devolved on the people of New Hamp- 
 shire. It is admitted that among the latter was comprehended the 
 transcendent power of parliament, as well as that of the executive de- 
 partment. It is too clear to require the support of argument that all 
 contracts and rights respecting property remained unchanged by the 
 revolution. The obligations then which were created by the charter 
 to Dartmouth College were the same in the new that they had been 
 in the old government. The power of the government was also the 
 same. A repeal of this charter, at any time prior to the adoption of 
 the present constitution of the United States, would have been an ex- 
 traordinary and unprecedented act of power, but one which could 
 have been contested only by the restrictions upon the legislature to be 
 found in the constitution of the state. But the constitution of the United 
 States has imposed this additional limitation, that the legislature of a 
 state shall pass no act "impairing the obligation of contracts." 
 
 It has been already stated that the act to "amend the charter, and 
 enlarge and improve the corporation of Dartmouth College," in- 
 creases the number of trustees to twenty-one, gives the appointment 
 of the additional members to the executive of the state, and creates a 
 board of overseers, to consist of twenty-five persons, of whom twenty- 
 one are also appointed by the executive of New Hampshire, who have 
 power to inspect and control the most important acts of the trustees. 
 
 46 WIL. CASKS.
 
 722 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 [Effect ol an act to amend the charter.] On the effect of this law, two 
 opinions can not be entertained. Betw e en acting directly, and acting 
 through the agency of trustees and over s eers, no essential difference is 
 perceived. The whole power of governing the college is transferred 
 from trustees, appointed according to the will of the founder ex- 
 pressed in the charter, to the executive of New Hampshire. The 
 management and application of the funds of this eleemosynary insti- 
 tution, which are placed by the donors in the hands of trustees named 
 in the charter, and empowered to perpetuate themselves, are placed 
 by this act under the control of the government of the state. The will 
 of the state is substituted for the will of the donors in every essential 
 operation of the college. This is not an immaterial change. The 
 founders of the college contracted not merely for the peipetual appli- 
 cation of the funds which they gave to the objects for which those funds 
 were given ; they contracted also to secure that application by the con- 
 stitution of the corporation. They contracted for a system which 
 should, so far as human foresight can provide, retain forever the gov- 
 ernment of the literary institution they had formed in the hands of 
 persons approved by themselves. This system is totally changed. 
 The charter of 1769 exists no longer. It is reorganized, and reorgan- 
 ized in such a manner as to convert a literary institution, molded 
 according to the will of its founders, and placed under the control of 
 private literary men, into a machine entirely subservient to the will of 
 government. This may be for the advantage of this college in partic- 
 ular, and may be for the advantage of literature in general ; but it is 
 not according to the will of the donors, and is subversive of that con- 
 tract on the faith of which their property was given. 
 
 In the -view -which has been taken of this interesting case \ the court 
 has confined itself to the rights possessed by the trustees as the assign- 
 ees and representatives of the donors and founders for the benefit 
 of religion and literature. Yet, it is not clear that the trustees ought 
 to be considered as destitute of such beneficial interest in themselves 
 as the law may respect. In addition to their being the legal owners 
 of the property, and to their having a freehold right in the powers 
 confided to them, the charter itself countenances the idea that trustees 
 may also be tutors with salaries. The first president was one of the 
 original trustees ; and the charter provides that in case of vacancy in 
 that office, "the senior professor or tutor, being one of the trustees, 
 shall exercise the office of president until the trustees shall make 
 choice of and appoint a president." According to the tenor of the 
 charter, then, the trustees might, without impropriety, appoint a pres- 
 ident and other professors from their own body. This is a power not 
 entirely unconnected with an interest. Even if the proposition of the 
 counsel for the defendant were sustained ; if it were admitted that 
 those contracts only are protected by the constitution, a beneficial in- 
 terest in which is vested in the party who appears in court to assert 
 that interest, yet it is by no means clear that the trustees of Dart- 
 mouth College have no beneficial interest in themselves. But the 
 court has deemed it unnecessary to investigate this particular point,
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 723 
 
 being of opinion, on general principles, that in these private eleemosy- 
 nary institutions, the body corporate, as possessing the whole legal 
 and equitable interest, and completely representing the donors, for the 
 purpose of executing the trust, has rights which are protected by the 
 constitution. 
 
 It results from this opinion, that the acts of the legislature of New 
 Hampshire, which are stated in the special verdict found in this cause, 
 are repugnant to the constitution of the United States ; and that the 
 judgment on this special verdict ought to have been for the plaintiffs. 
 The judgment of the state court must, therefore, be reversed. 
 
 WASHINGTON, Justice. * * * i. [What is a contract?] It may be 
 -defined to be a transaction between two or more persons, in which each 
 party comes under an obligation to the other, and each reciprocally ac- 
 quires a right to whatever is promised by the other. Powell on Cont. 6. 
 Under this definition, says Mr. Powell, it is obvious that every feoff- 
 ment, gift, grant, agreement, promise, etc., may be included, because 
 in all there is a mutual consent of the minds of the parties concerned 
 in them upon an agreement between them respecting some property 
 or right that is the object of the stipulation. He adds, that the ingre- 
 dients requisite to form a contract are, parties, consent and an obliga- 
 tion to be created or dissolved ; these must all concur, because the 
 regular effect of all contracts is, on one side, to acquire, and on the 
 other to part with, some property or rights; or to abridge, or to re- 
 strain natural liberty, by binding the parties to do, or restraining them 
 from doing something which before they might have done or omitted. 
 If a doubt could exist that a grant is a contract, the point was decided in 
 the case of Fletcher v. Peck, 6 Cranch 87, in which it was laid down that 
 a contract is either executory or executed ; by the former, a party binds 
 himself to do, or not to do, a particular thing; the latter is one in 
 which the object of the contract is performed, and this differs in noth- 
 ing from a grant ; but whether executed or executory, they both con- 
 tain obligations binding on the parties, and both are equally within 
 the provisions of the constitution of the United States, which forbids 
 the state governments to pass laws impairing the obligation of con- 
 tracts. 
 
 If, then, a grant be a contract, within the meaning of the constitu- 
 tion of the United States, the next inquiry is, whether the creation of 
 a corporation by charter be such a grant as includes an obligation of 
 the nature of a contract, which no state legislature can pass laws to 
 impair? A corporation is defined by Mr. Justice Blackstone (2 BL 
 Comm. 37*) to be a franchise, h is, says he, "a franchise for a 
 number of persons, to be incorporated and exist as a body politic, 'with 
 a power to maintain perpetual succession,, and to do corporate acts, 
 and each individual of such corporation is also said to have a fran- 
 chise or freedom." This franchise, like other franchises, is an in- 
 corporeal hereditament, issuing out of something real or personal, or 
 concerning or annexed, to, and exercisable -within a thing corporate. 
 To this grant, or this franchise, the parties are the king and the 
 persons for "whose benefit it is created, or trustees for them. The
 
 724 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 assent of both is necessary. The subjects of the grant are not only 
 privileges and immunities, but property, or, -which is the something, 
 a capacity to acquire and to hold property in perpetuity. Certain 
 obligations are created, binding both on the grantor and the grantees. 
 On the part of the former, it amounts to an extinguishment of the 
 king 's prerogative to bestow the same identical franchise on another 
 corporate body, because it 'would prejudice his prior grant. (2 Bl. 
 Comm. 37.) It implies, therefore, a contract not to reassert the right 
 to grant the franchise to another, or to impair it. There is also an 
 implied contract that the founder of a private charity, or his heirs, or 
 other persons appointed by him for that purpose, shall have the right 
 to visit and to govern the corporation of which he is the acknowledged 
 founder and patron, and also, that in case of its dissolution the re- 
 versionary right of the founder to the property, with which he had 
 endowed it, should be preserved inviolate. 
 
 The rights acquired by the other contracting party are those of 
 having perpetual succession, of suing and being sued, of purchasing 
 lands for the benefit of themselves and their successors, and of having 
 a common seal and of making by-laws. The obligation imposed tipon 
 them, and which forms the consideration of the grant, is that of 
 acting up to the end or design for which they were created by their 
 founder. Mr. Justice Buller, in the case of the King v. Pasmore, 3 
 T. R. 246, says that the grant of incorporation is a compact between 
 the crown and a number of persons, the latter of whom undertake, in 
 consideration of the privileges bestowed, to exert themselves for the 
 good government of the place. If they fail to perform their part of 
 it there is an end of the compact. The charter of a corporation, says 
 Mr. Justice Blackstone (2 Bl. Comm. 484), maybe forfeited through 
 negligence or abuse of its franchises, in which case the law judges 
 that the body politic has broken the condition upon which it was in- 
 corporated, and thereupon the corporation is void. It appears to me, 
 upon the whole, that these principles and authorities prove, incontro- 
 vertibly, that a charter" of incorporation is a contract. 
 
 2. [Impairment of this contract.] Tha next question is, do the acts 
 of the legislature of New Hampshire of the 27th of June and i8th 
 and 26th of December, 1816, impair this contract within the true in- 
 tent and meaning of the constitution of the United States ? Previous 
 to the examination of this question, it will be proper clearly to mark 
 the distinction between the different kinds of lay aggregate corpora- 
 tions, in order to prevent any implied decision by this court of any 
 other case than the one immediately before it. 
 
 We are informed by the case of Philips v. Bury, i Ld. Raym. 5 ; 
 s. c. 2 T. R. 346, which contains all the doctrine of corporations con- 
 nected with this point, that there are two kinds of corporations aggre- 
 gate, viz., such as are for public government and such as are for pri- 
 vate charity. The first are those for the government of a town, city 
 or the like ; and being for public advantage, are to be governed 
 according to the law of the land. The validity and justice of their 
 private laws and constitutions are examinable in the king's conrts. Of
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 725 
 
 these there are no particular founders, and consequently no particular 
 visitor; there are no patrons of these corporations. But private and 
 particular corporations for charity, founded and endowed by private 
 persons, are subject to the private government of those who erect 
 them, and are to be visited by them or their heirs, or such other per- 
 sons as they may appoint. The only rules for the government of 
 these private corporations are the laws and constitutions assigned by 
 the founder. This right of government and visitation arises from the 
 property which the founder had in the lands assigned to support the 
 chanty; and as he is the author of the charity, the law invests him 
 with the necessary power of inspecting and regulating it. The author- 
 ities are full to prove that a college is a private charity, as well as 
 an hospital, and that there is, in reality, no difference between 
 them except in degree, but they are within the same reason, and both 
 eleemosynary. 
 
 These corporations, civil and eleemosynary, which differ from each 
 other so especially in their nature and constitution, may very well dif- 
 fer in matters which concern their rights and privileges, and their 
 existence and subjection to public control. The one is the mere creat- 
 ure of public institution, created exclusively for the public advantage 
 without other endowments than such as the king or government may 
 bestow upon it, and having no other founder or visitor than the king 
 or government, thefundator incipiens. The validity and justice of 
 its laws and constitution are examinable by the courts having juris- 
 diction over them ; and they are subject to the general law of the 
 land. It would seem reasonable that such a corporation may be 
 controlled, and its constitution altered and amended by the govern- 
 ment, in such manner as the public interest may require. Such legis- 
 lative interferences can not be said to impair the contract by which 
 the corporation was formed, because there is, in reality, but one 
 party to it, the trustees or governors of the corporation being merely 
 the trustees for the public, the cestui que trust of the foundation. 
 These trustees or governors have no interest, no privileges or immuni- 
 ties, which are violated by such interference, and can have no more 
 right to complain of them than an ordinary trustee, who is called 
 upon in a court of equity to execute the trust. They accepted the 
 charter for the public benefit alone, and there would seem to be no 
 reason why the government, under proper limitations, should not 
 alter or modify such a grant at pleasure. But the case of a private 
 corporation is entirely different. That is the creature of a private 
 benefaction for a charity or private purpose. It is endowed and 
 founded by private persons, and subject to their control, laws and 
 visitation, and not to the general control of the government; and all 
 these powers, rights and privileges flow from the property of the 
 founder in the funds assigned for the support of the charity. Al- 
 though the king, by the grant of the charter, is, in some sense, the 
 founder of all eleemosynary corporations, because, without his grant 
 they can not exist, yet the patron or endower is the perficient founder, 
 to whom belongs, as of right, all the powers and privileges which
 
 726 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 have been described. With such a corporation, it is not competent 
 for the legislature to interfere. It is a franchise, or incorporeal here- 
 ditament, founded upon private property, devoted by its patron to a 
 private charity, of a peculiar kind, the offspring of his own will and 
 pleasure, to be managed and visited by persons of his own appoint- 
 ment, according to such laws and regulations as he, or the persons so 
 selected, may ordain. 
 
 It has been shown that the charter is a contract on the part of the 
 government, that the property with which the charity is endowed shall 
 be forever vested in a certain number of persons and their successors, 
 to subserve the particular purposes designated by the founder and to 
 be managed in a particular way. If a law increases or diminishes 
 the number of the trustees, they are not the persons which the grantor 
 agreed should be managers of the fund. If it appropriate the fund 
 intended for the support of a particular charity to that of some other 
 charity, or to an entirely different charity, the grant is in effect set 
 aside, and a new contract substituted in its place, thus disappoint- 
 ing completely the intentions of the founder by changing the objects 
 of his bounty. And can it be seriously contended that a law which 
 changes so materially the terms of a contract does not impair it? In 
 short, does not every alteration of a contract, however unimportant, 
 even though it be manifestly for the interest of the party objecting to 
 it, impair its obligations? If the assent of all the parties to be bound 
 by a contract be of its essence, how is it possible that a new contract, 
 substituted for or engrafted on another without such assent, should 
 not violate the old charter? * * * 
 
 Upon the whole, I am of opinion that the above acts of New Hamp- 
 shire, not having received the assent of the corporate body of Dart- 
 mouth College, are not binding on them, and, consequently, that the 
 judgment of the state court ought to be reversed. 
 
 JOHNSON, Justice, concurred, for the reasons stated by the chief 
 justice. 
 
 LIVINGSTON, Justice, concurred, for the reasons stated by the chief 
 justice, and Justices WASHINGTON and STORY. 
 
 STORY, Justice. This is a cause of great importance, and as the 
 very learned discussions as well here as in the state court show, of no 
 inconsiderable difficulty. There are two questions to which the 
 appellate jurisdiction of this court properly applies, i. Whether the 
 original charter of Dartmouth College is a contract within the prohib- 
 itory clause of the constitution of the United States, which declares 
 that no state shall pass any "law impairing the obligation of con- 
 tracts?" 2. If so, whether the legislative acts of New Hampshire of 
 the ayth of June, and of the i8th and 27th of December, 1816, or any 
 of them, impair the obligations of that charter? 
 
 [Nature of an aggregate corporation at common law.] It will be neces- 
 sary, however, before we proceed to discuss these questions, to insti- 
 tute an inquiry into the nature, rights and duties of aggregate corpo- 
 rations at common law ; that we may apply the principles drawn from
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 
 
 this source to the exposition of this charter, which was granted 
 emphatically with reference to that law. 
 
 An aggregate corporation, at common law, is a collection of indi- 
 viduals, united into one collective body, under a special name, and 
 possessing certain immunities, privileges and capacities, in its col- 
 lective character, which do not belong to the natural persons compos- 
 ing it. Among other things, it possesses the capacity of perpetual 
 succession, and of acting by the collected vote or will of its compo- 
 nent members, and of suing and being sued in all things touching 
 its corporate rights and duties. It is, in short, an artificial person, 
 existing in contemplation of law and endowed with certain powers 
 and franchises which, though they must be exercised through the 
 medium of its natural members, are yet considered as subsisting in 
 the corporation itself, as distinctly 'as if it were a real personage. 
 Hence, such a corporation may sue and be sued by its own members, 
 and may contract with them in the same manner as with any stran- 
 gers, i Bl. Comm. 469, 475 ; i Kyd on Corp. 13, 69, 189 ; i Wooddes. 
 471, etc. A great variety of these corporations exist in every coun- 
 try governed by the common law, in some of which the corporate 
 existence is perpetuated by new elections, made from time to time ; 
 and in others, by a continual accession of new members, without any 
 corporate act. Some of these corporations are, from the particular 
 purposes to which they are devoted, denominated spiritual and some 
 lay ; and the latter are again divided into civil and eleemosynary 
 corporations. It is unnecessary, in this place, to enter into any ex- 
 amination of civil corporations. Eleemosynary corporations are 
 such as are constituted for the perpetual distribution of the free- 
 alms and bounty of the founder, in such manner as he has directed; 
 and in this class are ranked hospitals for the relief of poor and im- 
 potent persons, and colleges for the promotion of learning and piety, 
 and the support of persons engaged in literary pursuits, i Bl. Comm. 
 469, 470, 471, 482; i Kyd on Corp. 25; i Wooddes. 474; Attorney- 
 General v. Whorwood, i Ves. 534; St. John's College v. Todington, 
 i W. Bl. 84; s. c. i Burr. 200; Philips v. Bury, i Ld. Raym. 5; s. 
 c. 2 T. R. 346; Porter's Case, i Co. 22b, 23. 
 
 Another division of corporations is into public and private. Pub- 
 lic corporations are generally esteemed such as exist for public polit- 
 ical purposes only, such as towns, cities, parishes and counties, and 
 in many respects they are so, although they involve some private in- 
 terests ; but, strictly speaking, public corporations are such only as are 
 founded by the government for public purposes, where the whole in- 
 terests belong also to the government. If, therefore, the foundation 
 be private, though under the charter of the government , the corpora- 
 tion is private, however extensive the uses may be to which it is 
 devoted, either by the bounty of the founder , or the nature and objects 
 of the institution. For instance, a bank created by the government 
 for its own uses, whose stock is exclusively owned by the government 
 is, in the strictest sense, a public corporation. So, an hospital cre- 
 ated and endowed by the government for general charity. But a
 
 728 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 bank, whose stock is owned by private persons, is a private corpora- 
 tion, although it is erected by the government, and its objects and 
 operations partake of a public nature. The same doctrine may be 
 affirmed of insurance, canal, bridge and turnpike companies. In all 
 these cases the uses may, in a certain sense, be called public, but 
 the corporations are private, as much so, indeed, as if the franchises 
 were vested in a single person. 
 
 This reasoning applies in its full force to eleemosynary corpora- 
 tions. An hospital, founded by a private benefactor, is, in point of 
 law, a private corporation, although dedicated by its charter to gen- 
 eral charity. So a college founded and endowed in the same man- 
 ner, although being for the promotion of learning and piety, it may 
 extend its charity to scholars from every class in the community, and 
 thus acquire the character of a public institution. This is the un- 
 equivocal doctrine of the authorities, and can not be shaken but by un- 
 dermining the most solid foundations of the common law. Philips v. 
 Bury, i Ld. Raym. 5, 9; s. c. 2 T. R. 346. 
 
 It was indeed supposed at the argument that if the uses of an elee- 
 mosynary corporation be for general charity, this alone would consti- 
 tute it a public corporation. But the law is certainly not so. To be 
 sure, in a certain sense, every charity which is extensive in its reach, 
 may be called a public charity, in contradistinction to a charity 
 embracing but a few definite objects. In this sense the language was 
 unquestionably used by Lord Hardwicke in the case cited at the argu- 
 ment; Attorney-General v. Pearce, 2 Atk. 87, i Bac. Abr. tit. Char- 
 itable Uses, E, 589; and in this sense a private corporation may well 
 enough be denominated a public charity. So it would be if the endow- 
 ment, instead of being vested in a corporation, were assigned to a 
 private trustee ; yet in such a case no one would imagine that the trust 
 ceased to be private, or the funds became public property. That the 
 mere act of incorporation will not change the charity from a private to 
 a public one is most distinctly asserted in the authorities. Lord Hard- 
 wicke, in the case already alluded to, says "the charter of the crown can 
 not make a charity more or less public, but only more permanent than it 
 would otherwise be, but it is the extensiveness which w r ill constitute it 
 a public one. A devise to the poor of the parish is a public charity. 
 Where testators leave it to the discretion of a trustee to choose out the 
 objects, though each particular object may be said to be private, yet 
 in the extensiveness of the benefit accruing from them, they may prop- 
 erly be called public charities. A sum to be disposed of by A. B. 
 and his executors at their discretion among poor-house keepers is of 
 this kind." The charity, then, may in this sense be public, although 
 it may be administered by private trustees, and for the same reason it 
 may thus be public, though administered by a private corporation. 
 The fact, then, that the charity is public, affords no proof that the 
 corporation is also public ; and consequently the argument, so far as 
 it is built on this foundation, falls to the ground. If indeed the argu- 
 ment were correct, it would follow that almost every hospital and col-
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 72Q 
 
 lege would be a public corporation ; a doctrine utterly irreconcilable 
 with the whole current of decisions since the time of Lord Coke. 
 
 When, then, the argument assumes that because the charity is pub- 
 lic the corporation is public, it manifestly confounds the popular with 
 the strictly legal sense of the terms. And if it stopped here it 
 would not be very material to correct the error. But it is on this 
 foundation that a superstructure is erected which is to compel a sur- 
 render of the cause. When the corporation is said at the bar to be 
 public, it is not merely meant that the whole community may be the 
 proper objects of the bounty, but that the government have the sole 
 right, as trustees of the public interests, to regulate, control and direct 
 the corporation, and its funds and its franchises, at its own good will 
 and pleasure. Now, such an authority does not exist in the govern- 
 ment, except where the corporation is in the strictest sense public; 
 that is, where its whole interests and franchises are the exclusive prop- 
 erty and domain of the government itself. If it had been otherwise, 
 courts of law would have been spared many laborious adjudications in 
 respect to eleemosynary corporations and the visitorial powers over them 
 from the time of Lord Holt down to the present day. Rex v. Bury, 
 
 1 Ld. Raym. 5; s. c. Comb. 265; Holt 715; i Show. 360; 4 Mod. 
 1 06 ; Skin. 447, and Lord Holt's opinion from his own manuscript, in 
 
 2 T. R. 346. Nay, more, private trustees for charitable purposes 
 would have been liable to have the property confided to their care 
 taken away from them without any assent or default on their part, 
 and the administration submitted, not to the control of law and equity, 
 but to the arbitrary discretion of the government. Yet, whoever thought 
 before that the munificent gifts of private donors for general charity 
 became instantaneously the property of the government, and that 
 the trustees appointed by the donors, whether corporate or unincor- 
 porated, might be compelled to yield up their rights to whomsover 
 the government might appoint to administer them ? If we were to 
 establish such a principle it would extinguish all future eleemosynary 
 endowments, and we should find as little of public policy as w,e now 
 find of law to sustain it. 
 
 [Foundation and visitation of corporations.] An eleemosynary corpo- 
 ration, then, upon a private foundation, being a private corporation, 
 it is next to be considered what is deemed a foundation and who is the 
 founder. This can not be stated w r ith more brevity and exactness 
 than in the language of the elegant commentator upon the laws of Eng- 
 land: "The founder of all corporations (says Sir William Black- 
 stone), in the strictest and original sense, is the king alone, for he 
 only can incorporate a society; and in civil corporations, such as 
 mayor, commonalty, etc., where there are no possessions or endow- 
 ments given to the body, there is no other founder but the king; but 
 in eleemosynary foundations, such as colleges and hospitals, where 
 there is an endowment of lands, the law distinguishes and makes two 
 species of foundation, the one fundatio incipicns. or the incorpora- 
 tion, in which sense the king is the general founder of all colleges 
 and hospitals ; the other fundatio perficiens, or the dotation of it.
 
 730 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 in which sense the first gift of the revenues is the foundation, and he 
 who gives them is, in the law, the founder; and it is in this last sense 
 we generally call a man the founder of a college or hospital." i Bl. 
 Comm. 480, 10 Co. 33. 
 
 To all eleemosynary corporations a visitatorial power attaches as a 
 necessary incident ; for these corporations being composed of individ- 
 uals subject to human infirmities are liable, as well as private persons, 
 to deviate from the end of their institution. The law, therefore, has 
 provided that there shall somewhere exist a power to visit, inquire 
 into, and correct all irregularities and abuses in such corporations, and 
 to compel the original purposes of the charity to be faithfully fulfilled, 
 i Bl. Comm. 480. The nature and extent of this visitatorial power has 
 been expounded with admirable fullness and accuracy by Lord Holt 
 in one of his most celebrated judgments. Philips v. Bury, i Ld. 
 Raym. 5 ; s. c. 2 T. R. 346. And of common right by the donation 
 the founder and his heirs are the legal visitors, unless the founder has 
 appointed and assigned another person to be visitor. For the founder 
 may, if he please, at the time of the endowment, part with his visita- 
 torial power; and the person to whom it is assigned will, in that case, 
 possess it in exclusion of the founder's heirs, i Bl. Com. 482. This 
 visitatorial power is, therefore, an hereditament founded in property, 
 and valuable in intendment of law, and stands upon the maxim that 
 he who gives his property has a right to regulate it in future. It 
 includes also the legal right of patronage, for, as Lord Holt justly 
 observes, "patronage and visitation are necessary consequents one 
 upon another." No technical terms are necessary to assign or vest 
 the visitatorial power; it is sufficient if, from the nature of the duties 
 to be performed by particular persons under the charter, it can be 
 inferred that the founder meant to part with it in their favor, and he 
 may divide it among various persons, or subject it to any modifica- 
 tions or control by the fundamental statutes of the corporation. But 
 where the appointment is given in 'general terms, the whole power 
 vests in the appointee. Eden v. Foster, 2 P. Wms. 325 ; Attorney- 
 General v. Middleton, 2 Ves. 327; St. Johns College v. Todington, 
 i W. Bl. 84; s. c. 2 Burr. 200; Attorney-General v. Clare College, 
 3 Atk. 662 ; s. c. i Ves. 78. In the construction of charters, too, it is 
 a general rule that if the objects of the charity are incorporated, as, for 
 instance, the master and fellows of a college, or the master and poor 
 of a hospital, the visitatorial power, in the absence of any special 
 appointment, silently vests in the founder and his heirs. But where 
 trustees or governors are incorporated to manage the charity, the vis- 
 itatorial power is deemed to belong to them in their corporate charac- 
 ter. Philips v. Bury, i Ld. Raym. 5; s. c. 2 T. R. 346; Green v. 
 Rutherford, i Ves. 472; Attorney-General v. Middleton, 2 Ves. 327; 
 Case of Sutton Hospital, 10 Co. 23, 31. 
 
 When a private eleemosynary corporation is thus created by the 
 charter of the crown, it is subject to no other control on the part of 
 the crown than what is expressly or implicitly reserved by the charter 
 itself. Unless a power be reserved for this purpose, the crown can
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 731 
 
 not, in virtue of its prerogative, without the consent of the corpora- 
 tion, alter or amend the charter, or divest the corporation of any of 
 its franchises, or add to them, or add to or diminish the number of 
 the trustees, or remove any of the members, or change or control 
 the administration of the charity, or compel the corporation to receive 
 a new charter. This is the uniform language of the authorities, and 
 forms one of the most stubborn and well-settled doctrines of the com- 
 mon 5aw. 
 
 But an eleemosynary, like every other corporation, is subject to 
 the general law of the land. It may forfeit its corporate franchises 
 by misuser or non-user of them. It is subject to the controlling 
 authority of its legal visitor, who, unless restrained by the terms of 
 the charter, may amend and repeal its statutes, remove its officers, 
 correct abuses and generally superintend the management of the trusts. 
 Where, indeed, the visitatorial power is vested in the trustees of the 
 charity, in virtue of their incorporation, there can be no amotion of 
 them from their corporate capacity. But they are not, therefore, 
 placed beyond the reach of the law. As managers of the revenues of 
 the corporation they are subject to the general superintending power 
 of the court of chancery, not as itself possessing a visitatorial power, 
 or a right-to control the charity, but as possessing a general jurisdic- 
 tion in all cases of an abuse of trust to redress grievances and sup- 
 press frauds. 2 Fonbl. Eq., B. 2, pt. 2, ch. i, i, note a; Coop. 
 Eq. PI. 292; 2 Kyd on Corp. 195; Green v. Rutherford, i Ves. 462; 
 Attorney-General v. Foundling Hospital, 4 Bro. C. C. 165; s. c. 2 
 Ves. Jr. 42; Eden v. Foster, 2 P. Wms. 325 ; i Wooddes. 476; At- 
 torney-General v. Price, 3 Atk. 108 ; Attorney-General v. Lock, 3 
 Atk. 164; Attorney-General v. Dixie, 13 Ves. 519; Ex parte Kirby 
 Ravensworth Hospital, 15 Ves. 304, 314; Attorney-General v. Earl 
 of Clarendon, 17 Ves. 491, 499; Berkhamstead Free School, 2 Ves. 
 & B. 134; Attorney-General v. Corporation of Carmarthen. Cooper 
 30; Mayor, etc., of Colchester v. Lowten, i Ves. & B. 226; Rex v. 
 Watson, 2 T. R. 199 ; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 
 371 ; Attorney-General v. Middleton, 2 Ves. 327. And where a cor- 
 poration is a mere trustee of a charity, a court of equity will go yet 
 further, and though it can not appoint or remove a corporator, it will 
 yet, in a case of gross fraud or abuse of tmst, take away the trust from 
 the corporation and vest it in other hands. Mayor, etc., of Coventry 
 v. Attorney-General, 7 Bro. P. C. 235; Attorney-General v. Earl of 
 Clarendon, 17 Ves. 491, 499. 
 
 Thus much it has been thought proper to premise respecting the 
 nature, rights and duties of eleemosynary corporations growing out of 
 the common law. We may now proceed to an examination of the 
 original charter of Dartmouth College. 
 
 (Stating facts as to recitals of charter and its terms as above.) 
 
 [Terms of the charter.] Such are the most material clauses of the 
 charter. It is observable, in the first place, that no endowment what- 
 ever is given by the crown, and no power is reserved to the crown or 
 government in any manner to alter, amend or control the charter. It
 
 732 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 is also apparent, from the very terms of the charter, that Dr. Whee- 
 lock is recognized as the founder of the college, and that the charter 
 is granted upon his application, and that the trustees were in fact 
 nominated by him. In the next place, it is apparent that the objects 
 of the institution are purely charitable, for the distribution of the pri- 
 vate contributions of private benefactors. The charity was in the sense 
 already explained a public charity, that, is for the general promotion 
 of learning and piety, but in this respect it was just as much public 
 before as after the incorporation. The only effect of the charter was 
 to give permanency to the design, by enlarging the sphere of its ac- 
 tion and granting a perpetuity of corporate powers and franchises, 
 the better to secure the administration of the benevolent donations. 
 As founder, too, Dr. Wheelock and his heirs would have been com- 
 pletely clothed with the visitatorial power, but the whole govern- 
 ment and control, as well of the officers as of the revenues of the 
 college being with his consent assigned to the trustees in their corpo- 
 rate character, the visitatorial power, which is included in this author- 
 ity, rightfully devolved on the trustees. As managers of the property 
 and revenues of the corporation, they were amenable to the jurisdic- 
 tion of the judicial tribunals of the state, but as visitors, their discre- 
 tion was limited only by the charter, and liable to no supervision or 
 control, at least, unless it was fraudulently misapplied. 
 
 From this summary examination it follows that Dartmouth College 
 was, under its original charter, a private eleemosynary corporation, 
 endowed with the usual privileges and franchises of such corporations, 
 and among others, with a legal perpetuity, and was exclusively under 
 the government and control of twelve trustees, who were to be elected 
 and appointed, from time to time, by the existing board, as vacancies 
 or removals should occur. 
 
 [Is this charter a contract?] We are now led to the consideration of 
 the first question in the cause, whether this charter is a contract within 
 the clause of the constitution prohibiting the states from passing any 
 law impairing the obligation of contracts. In the case of Fletcher v. 
 Peck, 6 Cranch 87, 136, this court laid down its exposition of the 
 word "contract" in this clause in the following manner: "A con- 
 tract is a compact between two or more persons, and is either execu- 
 tory or executed. An executory contract is one in which a party 
 binds himself to do, or not to do, a particular thing. A contract ex- 
 ecuted is one in which the object of the contract is performed ; and 
 this, says Blackstone, differs in nothing from a grant. A contract 
 executed, as well as one that is executory, contains obligations bind- 
 ing on the parties. A grant, in its own nature, amounts to an ex- 
 tinguishment of the right of the grantor, and implies a contract not 
 to reassert that right. A party is always estopped by his own grant." 
 This language is perfectly unambiguous, and was used in reference to 
 a grant of land by the governor of a state, under a legislative act. 
 It determines, in the most unequivocal manner, that the grant of a 
 state is a contract, within the clause of the constitution now in ques-
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 733 
 
 tion, and that it implies a contract not to reassume the rights granted ; 
 a fortiori, the doctrine applies to a charter or grant from the king. 
 
 But it is objected that .the charter of Dartmouth College is not a 
 contract contemplated by the constitution, because no valuable con- 
 sideration passed to the king as an equivalent for the grant, it pur- 
 porting to be granted ex mero motu, and further that no contracts, 
 merely voluntary, are within the prohibitory clause. It must be ad- 
 mitted that mere executory contracts can not be enforced at law, 
 unless there be a valuable consideration to sustain them, and the con- 
 stitution certainly did not mean to create any new obligations or give 
 any new efficacy to nude pacts. But it must, on the other hand, be 
 also admitted that the constitution did intend to preserve all the ob- 
 ligatory force of contracts which they have by the general principles 
 of law. Now when a contract has once passed bona Jide into grant, 
 neither the king nor any private person who may be the grantor can 
 recall the grant of the property, although the conveyance may have 
 been purely voluntary. A gift completely executed is irrevocable. 
 The property conveyed by it becomes, as against the donor, the abso- 
 lute property of the donee ; and no subsequent change of intention of 
 the donor can change the rights of the donee. 2 Bl. Com. 441, Jenk. 
 Cent. 104. And a gift by the crown of incorporeal hereditaments, 
 such as corporate franchises, when executed comes completely within 
 the principle, and is, in the strictest sense of the terms, a grant. 2 Bl. 
 Com. 317, 346; Shep. Touch., ch. 12, p. 227. Was it ever imagined 
 that land, voluntarily granted to any person by a state, was liable to 
 be resumed at its own good pleasure? Such a pretension would, 
 under any circumstance, be truly alarming, but in a country like ours, 
 where thousands of land-titles had their origin in gratuitous grants of 
 the states, it would go far to shake the foundations of the best settled 
 estates. And a grant of franchise is not, in point of principle, dis- 
 tinguishable from a grant of any other property. If, therefore, this 
 charter were a pure donation, when the grant was complete, and ac- 
 cepted by the grantees, it involved a contract that the grantees should 
 hold and the grantor should not reassume the grant as much as if it 
 had been founded on the most valuable consideration. 
 
 But it is not admitted that this charter was not granted for what the 
 law deems a valuable consideration. For this purpose, it matters not 
 how trifling the consideration may be, a pepper-corn is as good as 
 a thousand dollars. Nor is it necessary that the consideration should 
 be a benefit to the grantor. It is sufficient if it import damage or 
 loss, or forbearance of the benefit, or any act done or to be done, on 
 the part of the grantee. It is unnecessary to state cases; they are 
 familiar to the mind of every lawyer. Pillans v. Van Mierop, per 
 Yates, J., 3 Burr. 1663; Forth v. Stanton, i Saund. 211; Williams' 
 note 2, and the cases there cited. 
 
 With these principles in view, let us now examine the terms of this 
 charter. It purports, indeed, on its face, to be granted "of the special 
 grace, certain knowledge and mere motion" of the king, but these 
 words were introduced for a very different purpose from that now
 
 734 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 contended for. It is a general rule of the common law (the reverse 
 of that applied in ordinary cases) that a grant of the king, at the suit 
 of the grantee, is to be construed most beneficially for the king and 
 most strictly against the grantee. Wherefore, it is usual to insert in 
 the king's grants a clause that they are made, not at the suit of the 
 grantee, but of the special grace, certain knowledge and mere motion 
 of the king, and then they receive a more liberal construction. This 
 is the true object of the clause in question, as we are informed by the 
 most accurate authorities. 2 Bl. Comm. 347; Finch's Law 100; 10 
 Rep. 112; i Shep. Abr. 136; Bull. N. P. 136. But the charter also, 
 on its face, purports to be granted in consideration of the premises in 
 the introductory recitals. 
 
 (Stating recitals as to founding by Dr. Wheelock, at his own ex- 
 pense, contributions made by others, etc., and the location of the 
 college.) 
 
 [Implied contracts with the founder, trustees and benefactors.] Can it 
 be truly said that these recitals contain no legal consideration of 
 benefit to the crown, or of forbearance of benefit on the other side ? 
 Is there not an implied contract by Dr. Wheelock, if a charter is 
 granted, that the schools shall be removed from his estate to New 
 Hampshire, and that he will relinquish all his control over the 
 funds collected, and to be collected in England under his auspices 
 and subject to his authority? That he will yield up the management 
 of his charity school to the trustees of the college ? That he will re- 
 linquish all the offers made by other American governments, and de- 
 vote his patronage to this institution ? It will scarcely be denied that 
 he gave up the right any longer to maintain the charity school already 
 established on his own estate ; and that the funds collected for its use 
 and subject to his management were yielded up by him as an endow- 
 ment of the college. The very language of the charter supposes him 
 to be the legal owner of the funds of the charity school, and in virtue 
 of this endowment, declares him the founder of the college. It mat- 
 ters not whether the funds were great or small ; Dr. Wheelock had 
 procured them by his own influence, and they were under his control 
 to be applied to the support of his charity school ; and when he re- 
 linquished his control he relinquished a right founded in property ac- 
 quired by his labors. Besides, Dr. Wheelock impliedly agreed to 
 devote his future services to the college, when erected, by becoming 
 president thereof, at a period when sacrifices must necessarily be 
 made to accomplish the great design in view. If, indeed, a pepper- 
 corn be, in the eye of the law, of sufficient value to found a contract, 
 as upon a valuable consideration, are these implied agreements, and 
 these relinquishments of right and benefit, to be deemed wholly worth- 
 less? It has never been doubted that an agreement not to exercise 
 a trade in a particular place was a sufficient consideration to sustain 
 a contract for the payment of money ; a fortiori, the relinquishment 
 of property which a person holds, or controls the use of as a trust, is 
 a sufficient consideration ; for it is parting with a legaj right. Even 
 a right of patronage {jus patronatus) is of great value in intendment
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 735 
 
 of law. Nobody doubts that an advovvson is a valuable hereditament ; 
 and yet, in fact, it is but a mere trust, or right of nomination to a 
 benefice, which can not be legally sold to the intended incumbent. 
 2 Bl. Comm. 22, Christian's note. In respect to Dr. Wheelock, then, 
 if a consideration be necessary to support the charter as a contract, it 
 is to be found in the implied stipulations on his part in the charter 
 itself. He relinquished valuable rights and undertook a laborious 
 office in consideration of the grant of the incorporation. 
 
 This is not all. A charter may be granted upon an executory as 
 well as an executed or present consideration. When it is granted to 
 persons who have not made application for it until their acceptance 
 thereof, the grant is yet in Jieri. Upon the acceptance there is an 
 implied contract on the part of the grantees, in consideration of the 
 charter, that they -will perform the duties and exercise the authorities 
 conferred by it. This was the doctrine asserted by the late learned 
 Mr. Justice Duller, in a modern case. Rex v. Pasmore, 3 T. R. 199, 
 239, 246. He there said, "I do not know how to reason on this point 
 better than in the manner urged by one of the relator's counsel, who 
 considered the grant of incorporation to be a compact between the 
 crown and a certain number of the subjects, the latter of whom under- 
 take, in consideration of the privileges which are bestowed, to exert 
 themselves for the good government of the place" (i. e., the place 
 incorporated). It will not be pretended that if a charter be granted 
 for a bank, and the stockholders pay in their own funds, the charter 
 is to be deemed a grant without consideration, and therefore revocable 
 at the pleasure of the grantor. Yet here the funds are to be managed, 
 and the services performed exclusively for the use and benefit of the 
 stockholders themselves. And where the grantees are mere trustees 
 to perform services without reward, exclusively for the benefit of 
 others for public charity, can it be reasonably argued that these serv- 
 ices are less valuable to the government than if performed for the pri- 
 vate emolument of the trustees themselves? In respect, then, to the 
 trustees also there was a valuable consideration for the charter, the 
 consideration of services agreed to be rendered by them in execution 
 of a charity, from which they could receive no private remuneration. 
 
 There is yet another view of this part of the case which deserves 
 the most weighty consideration. The corporation was expressly 
 created for the purpose of distributing in perpetutity the charitable 
 donations of private benefactors. By the terms of the charter the 
 trustees and their successors in their corporate capacity were to re- 
 ceive, hold and exclusively manage all the funds so contributed. The 
 crown then, upon the face of the charter, pledged its faith that the 
 donations of private benefactors should be perpetually devoted to 
 their orginal purposes without any interference on its own part, and 
 should be forever administered by the trustees of the corporation, 
 unless its corporate franchises should be taken away by due process of 
 law. From the very nature of the case, therefore, there -was an im- 
 plied contract on the part of the crown ivith every benefactor that if 
 he rvould give his money it should be deemed a charity protected by
 
 736 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 the charter, and be administered by the corporation according to the 
 general law of the land. As soon, then, as a donation ivas made to 
 the corporation, there "was an implied contract springing up and 
 founded on a valuable consideration that the crown -would not revoke 
 or alter the charter or change its administration without the consent 
 of the corporation. There was also an implied contract between the 
 corporation itself and every benefactor upon like consideration, that 
 it would administer his bounty according to the terms and for the 
 objects stipulated in the charter. 
 
 In every view of the case, if a consideration were necessary (which 
 I utterly deny) to make the charter a valid contract, a valuable con- 
 sideration did exist as to the founder, the trustees and the benefactors. 
 And upon the soundest legal principles the charter may be properly 
 deemed, according to the various aspects in which it is viewed, as a 
 several contract with each of these parties in virtue of the foundation 
 or the endowment of the college, or the acceptance of the charter or 
 the donations to the charity. 
 
 [Implied contract with the corporation itself.] And here we might 
 pause ; but there is yet remaining another view of the subject, which 
 can not consistently be passed over without notice. It seems to be as- 
 sumed by the argument of the defendant ' s counsel that there is no 
 contract whatsoever, in virtue of the charter, between the crown and 
 the corporation itself. But it deserves consideration, whether this as- 
 sumption can be sustained upon a solid foundation. 
 
 If this had been a new charter, granted to an existing corporation, 
 or a grant of lands to an existing corporation, there could not have been 
 a doubt that the grant would have been an executed contract with the 
 corporation, as much so as if it had been to any private person. But it 
 is supposed that as the corporation was not then in existence, but was 
 created and its franchises bestowed, uno flatu, the charter can not be 
 construed a contract, because there was no person in rerum natures 
 with whom it might be made. 
 
 Is this, however, a just and legal view of the subject? If the cor- 
 poration had no existence, so as to become a contracting party, neither 
 had it for the purpose of receiving a grant of the franchises. The 
 truth is that there may be a priority of operation of things in the same 
 grant, and the law distinguishes and gives such priority wherever it is 
 necessary to effectuate the objects of the grant. Case of Sutton Hos- 
 pital, 10 Co. 23; Buckland v. Fowcher, cited 10 Co. 278, and 
 recognized in Attorney-General v. Bowyer, 3 Ves. Jr. 7*4? 7 2 ^~7 5 
 s. p. Highmore on Mort. 200, etc. From the nature of things the 
 artificial person called a corporation must be created before it can be 
 capable of taking anything. When, therefore, a charter is granted, 
 and it brings the corporation into existence, without any act of the 
 natural persons who compose it, and gives such corporation any privi- 
 leges, franchises or property, the law deems the corporation to be Jirst 
 brought into existence, and then clothes it with the granted liberties 
 and property. When, on the other hand, the corporation is to be 
 brought into existence by some future acts of the corporators, the
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 737 
 
 franchises remain in abeyance until such acts are done, and when 
 the corporation is brought into life the franchises instantaneously 
 attach to it. There may be, in intendment of law, a priority of time, 
 even in an instant, for this purpose. Highmore on Mort. 200, etc. 
 And if the corporation have an existence before the grant of its other 
 franchises attaches, what more difficulty is there in deeming the grant 
 of these franchises a contract with it than if granted by another instru- 
 ment at a subsequent period ? 
 
 It behooves those also who hold that a grant to a corporation not then 
 in existence is incapable of being deemed a contract on that account, 
 to consider whether they do not at the same time establish that the grant 
 itself is a nullity for precisely the same reason. Yet such a doctrine 
 would strike us all as pregnant with absurdity, since it would prove 
 that an act of incorporation could never confer any authorities or 
 rights of property on the corporation it created. It may be admitted 
 that two parties are necessary to form a perfect contract, but it is 
 denied that it is necessary that the assent of both parties must be at 
 the same time. If the legislature were voluntarily to grant land in 
 fee to the first child of A. to be hereafter born, as soon as such child 
 should be born the estate would vest in it. Would it be contended 
 that such a grant, when it took effect, was revocable, and not an exe- 
 cuted contract upon the acceptance of the estate? The same question 
 might be asked in a case of a gratuitous grant by the king or the legis- 
 lature to A. for life, and afterward to the heirs of B., who is then 
 living. Take the case of a bank, incorporated for a limited period 
 upon the express condition that it shall pay out of its corporate funds 
 a certain sum as the consideration for the charter, and after the cor- 
 poration is organized a payment is duly made of the sum out of the 
 corporate funds ; will it be contended that there is not a subsisting 
 contract between the government and the corporation by the matters 
 thus arising ex post facto that the charter shall not be revoked during 
 the stipulated period? Suppose an act declaring that all persons, 
 who should thereafter pay into the public treasury a stipulated sum, 
 should be tenants in common of certain lands belonging to the state 
 in certain proportions; if a person, afterward born, pays the stipu- 
 lated sum into the treasury, is it less a contract with him than it 
 would be with a person in esse at the time the act passed? We must 
 admit that there may be future springing contracts in respect to per- 
 sons not now in esse, or we shall involve ourselves in inextricable dif- 
 ficulties. And if there may be in respect to natural persons, why not 
 also in respect to artificial persons created by the law for the very pur- 
 pose of being clothed with corporate powers ? / am unable to distin- 
 guish between the case of a grant of land or of franchises to an exist- 
 ing corporation and a like grant to a corporation brought into life for 
 the very purpose of receiving the grant. As soon as it is in esse, 
 and the franchises and property become vested and executed in it, the 
 grant is just as much an executed contract as if its prior existence 
 had been established for a century. 
 
 47 WIL. CASES.
 
 738 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 [Are these contracts protected by the constitution?] Supposing, how- 
 ever, that in either of the views which have been suggested, the charter 
 of Dartmouth College is to be deemed a contract, we are yet met with 
 several objections of another nature. It is, in the first place, con- 
 tended that it is not a contract within the prohibitory clause of the 
 constitution, because that clause was never intended to apply to mere 
 contracts of civil institutions, such as the contract of marriage, or to 
 grants of power to state officers, or to contracts relative to their offices, 
 or to grants of trust to be exercised for purposes merely public, when 
 the grantees take no beneficial interest. 
 
 [Offices.] It is admitted that the state legislatures have power to 
 enlarge, repeal and limit the authorities of public officers in their offi- 
 cial capacities, in all cases where the constitutions of the states respect- 
 ively do not prohibit them; and this, among others, for the very rea- 
 son that there is no express or implied contract that they shall always, 
 during their continuance in office, exercise such authorities; they are 
 to exercise them only during the good pleasure of the legislature. 
 But when the legislature makes a contract with a public officer, as in 
 the case of a stipulated salary for his services during/a limited period, 
 this, during the limited period, is just as much a contract, within the 
 purview of the constitutional prohibition, as a like contract would be 
 between two private citizens. Will it be contended that the legisla- 
 ture of a state can diminish the salary of a judge holding his office 
 during good behavior? Such an authority has never yet been asserted 
 to our knowledge. It may. also be admitted that corporations for mere 
 public government, such as towns, cities and counties, may in many 
 respects be subject to legislative control. But it will hardly be con- 
 tended that even in respect to such coiporations, the legislative power 
 is so transcendent that it may at its will take away the private property 
 of the corporation, or change the uses of its private funds acquired 
 under the public faith. Can the legislature confiscate to its own use 
 the private funds which a municipal corporation holds under its char- 
 ter, without any default or consent of the corporators? If a munici- 
 pal corporation be capable of holding devises and legacies to charita- 
 ble uses (as many municipal corporations are), does the legislature, 
 under our forms of limited government, possess the authority to seize 
 upon those funds and appropriate them to other uses, at its own 
 arbitrary pleasure, against the will of the donors and donees ? From 
 the very nature of our governments the public faith is pledged the 
 other way, and that pledge constitutes a valid compact, and that com- 
 pact is subject only to judicial inquiry, construction and abrogation. 
 This court have already had occasion in other causes to express their 
 opinion on this subject; and there is not the slightest inclination to 
 retract it. Terrett v. Taylor, 9 Cranch 43; Town of Pawlet v. Clark, 
 9 Cranch 292. 
 
 [Marriage contracts.] As to the case of the contract of marriage, 
 which the argument supposes not to be within the reach of the pro- 
 hibitory clause because it is matter of civil institution, I profess not to 
 feel the weight of the reason assigned for the exception. In a legal
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 739 
 
 sense, all contracts recognized as valid in any country may be prop- 
 erly said to be matters of civil institution, since they obtain their obli- 
 gation and construction jure loci contractus. Titles to land, consti- 
 tuting part of the public domain, acquired by grants under the pro- 
 visions of existing laws by private persons, are certainly contracts of 
 civil institution. Yet no one ever supposed that when acquired bona 
 fide they were not beyond the reach of legislative revocation. And 
 so, certainly, is the established doctrine of this court. A general 
 law regulating divorces from the contract of marriage, like a law 
 regulating remedies in other cases of breaches of contracts, is not nec- 
 essarily a law impairing the obligation of such a contract. It may be 
 the only effectual mode of enforcing the obligations of the contract on 
 both sides. A law punishing a breach of a contract by imposing a for- 
 feiture of the rights acquired under it, or dissolving it because the 
 mutual obligations were no longer observed, is, in no correct sense, a 
 law impairing the obligations of the contract. Could a law compelling 
 a specific performance by giving a new remedy be justly deemed an 
 excess of legislative power? Thus far the contract of marriage has 
 been considered with reference to general laws regulating divorces 
 upon breaches of that contract. But if the argument means to assert 
 that the legislative power to dissolve such a contract without such a 
 breach on either side, against the wishes of the parties, and without 
 any judicial inquiry to ascertain a breach, I certainly am not prepared 
 to admit such a power, or that its exercise would not entrench upon 
 the prohibition of the constitution. If, under the faith of existing 
 laws, a contract of marriage be duly solemnized, or a marriage settle- 
 ment be made (and marriage is always in law a valuable considera- 
 tion for a contract), it is not easy to perceive why a dissolution of its 
 obligations, without any default or assent of the parties, may not as 
 well fall within the prohibition as any other contract for a valuable 
 consideration. A man has just as good a right to his wife as to the 
 property acquired under a marriage contract. He has a legal right to 
 her society and her fortune; and to divest such right without his 
 default and against his will, would be as flagrant a violation of the 
 principles of justice as the confiscation of his own estate. I leave this 
 case, however, to be settled when it shall arise. I have gone into it 
 because it was urged with great earnestness upon us, and required a 
 reply. It is sufficient now to say, that as at present advised, the 
 argument derived from this source does not press my mind with any 
 new and insurmountable difficulty. 
 
 [Trustees.] In respect also to grants and contracts, it would be far 
 too narrow a construction of the constitution to limit the prohibitory 
 clause to such only where the parties take for their own private ben- 
 efit. A grant to a private trustee, for the benefit of a particular res- 
 tut que trust, or for any special, private or public charity, can not be 
 the less a contract because the trustee takes nothing for his own ben- 
 efit. A grant of the next presentation to a church is still a contract, 
 although it limit the grantee to a mere right of nomination or patron- 
 age. 2 Bl. Comm. 21. The fallacy of the argument consists in as-
 
 74O DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 suming the very ground in controversy. It is not admitted that a 
 contract with a trustee is, in its own nature, revocable, whether it be 
 for special or general purposes, for public charity or particular benefi- 
 cence. A private donation, vested in a trustee, for objects of a gen- 
 eral nature, does not thereby become a public trust, which the gov- 
 ernment may, at its pleasure, take from the trustee, and administer in 
 its own way. The truth is, that the government has no power to re- 
 voke a grant, even of its own funds, when given to a private person 
 or a corporation for special uses. It can not recall its own endow- 
 ments, granted to any hospital or college, or city or town, for the use 
 of such corporations. The only authority remaining to the govern- 
 ment is judicial, to ascertain the validity of the grant, to enforce its 
 proper uses, to suppress frauds, and, if the uses are charitable, to se- 
 cure their regular administration, through the means of equitable tri- 
 bunals, in cases where there would otherwise be a failure of justice. 
 [Property contracts.] Another objection growingoutof and connected 
 with that which we have been considering, is, that no grants are within 
 the constitutional prohibition, except such as respect property in the 
 strict sense of the term ; that is to say, beneficial interests in lands, 
 tenements and hereditaments, etc., which may be sold by the grantees 
 for their own benefit; and that grant of franchises, immunities and 
 authorities not valuable to the parties as property are excluded from 
 its purview. No authority has been cited to sustain this distinction, 
 and no reason is perceived to justify its adoption. There are many 
 rights, franchises and authorities which are valuable in contemplation 
 of law, where no beneficial interest can accrue to the possessor. A 
 grant to the next presentation to a church, limited to a grantee alone, 
 has been already mentioned. A power of appointment, reserved in a 
 marriage settlement, either to a party or a stranger, to appoint uses in 
 favor of third persons, without compensation, is another instance. A 
 grant of lands to a trustee to raise portions or pay debts, is, in law, a 
 valuable grant, and conveys a legal estate. Even a power given by 
 will to executors to sell an estate for payment of debts is, by the bet- 
 ter opinions and authority, coupled with a trust, and capable of sur- 
 vivorship. Co. Litt., 113^, Harg. & Butler's note 2; Su'gden on 
 Powers 140; Jackson v. Jansen, 6 Johns, 73; Franklin v. Osgood, 
 2 John. Cas. i ; s. c. 14 Johns. 527; Zebach v. Smith, 3 Binn. 69; 
 Lessee of Moody v. Vandyke, 4 Binn. 7, 31 ; Attorney-General v. 
 Gleg, i Atk. 356; i Bac. Abr. 586 (Gwyllim's ed.). Many digni- 
 ties and offices existing at common law are merely honorary and 
 without profit, and sometimes are onerous. Yet a grant of them has 
 never been supposed the less a contract on that account. In respect 
 to franchises, whether corporate or not, which include a pernancy of 
 profits, such as a right of fishery, or to hold a ferry, a market or a 
 fair, or to erect a turnpike, bank or bridge, there is no pretense to 
 say that grants of them are not within the constitution. Yet they 
 may, in point of fact, be of no exchangeable value to the owners. 
 They may be worthless in the market. The truth, however, is, that 
 all incorporeal hereditaments, whether they be immunities, dignities,
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 741 
 
 offices or franchises, or other rights, are deemed valuable in law. 
 The owners have a legal estate and property in them, and legal rem- 
 edies to support and recover them, in case of any injury, obstruction 
 or disseizin of them. Whenever they are the subjects of a con- 
 tract or grant, they are just as much within the reach of the constitu- 
 tion as any other grant. Nor is there any solid reason why a contract 
 for the exercise of a mere authority should not be just as much guarded 
 as a contract for the use and dominion of property. Mere naked 
 powers, which are to be exercised for the exclusive benefit of the 
 grantor, are revocable by him for that very reason. But it is other- 
 wise where a power is to be exercised in aid of a right vested in the 
 grantee. We all know that a power of attorney, forming a part 
 of a security upon the assignment of a chose in action, is not revoca- 
 ble by the grantor. For it then sounds in contract, and is coupled 
 with an interest. Walsh v. Whitcomb, 2 Esp. 565 ; Bergen v. Ben- 
 nett, i Games' Cas. i, 15; Raymond v. Squire, n Johns. 47. So, 
 if an estate be conveyed in trust for the grantor, the estate is irrevoca- 
 ble in the grantee, although he can take no beneficial interest for him- 
 self . Many of the best settled estates stand upon conveyances of this 
 nature; and there can be no doubt that such grants are contracts 
 within the prohibition in question. 
 
 [Franchises.] In respect to corporate franchises, they are, properly 
 speaking, legal estates vested in the corporation itself as soon as it is 
 in esse. They are not mere naked powers granted to the corporation, 
 but powers coupled -with an interest. The property of the corpora- 
 tion rests upon the possession of its franchises, and whatever may be 
 thought as to the corporators, it can not be denied that the corpora- 
 tion itself has a legal interest in them. It may sue and be sued for 
 them. Nay, more, this very right is one of its ordinary franchises. 
 "// is likewise a franchise," says Mr. Justice Blackstone, ''for a 
 number of persons to be incorporated and subsist as a body politic, 
 with power to maintain perpetual succession and do other corporate 
 acts ; and each individual member of such corporation is also said to 
 have a franchise or freedom." 2 Bl. Comm. 37; i Kyd on Corp. 14, 
 16. In order to get rid of the legal difficulty of these franchises being 
 considered as valuable hereditaments or property, the counsel for the 
 defendant are driven to contend that the corporators or trustees are 
 mere agents of the corporation, in whom no beneficial interest subsists ; 
 and so nothing but a naked power is touched by removing them from 
 the trust; and then to hold the corporation itself a mere ideal being, 
 capable indeed of holding property or franchises, but having no interest 
 in them which can be the subject of contract. Neither of these positions 
 is admissible. The former has been already sufficiently considered, 
 and the latter may be disposed of in a few words. The corporators are 
 not mere agents, but have vested rights in their character as corporators. 
 The right to be a freeman of a corporation is a valuable temporal 
 right. It is a right of voting and acting in the corporate concerns, 
 which the law recognizes and enforces, and for a violation of which it 
 provides a remedy. It is founded on the same basis as the right of
 
 742 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 voting in public elections; it is as sacred a right, and whatever might 
 have been the prevalence of former doubts since the time of Lord 
 Holt, such a right has always been deemed a valuable franchise or 
 privilege. Ashby v. White, 2 Ld. Raym. 938; i Kyd on Corp. 16. 
 
 This reasoning, which has been thus far urged, applies with full 
 force to the case of Dartmouth College. The franchises granted by 
 the charter were vested in the trustees, in their corporate character. The 
 lands and other property subsequently acquired were held by them in the 
 same manner. They were the private demesnes of the corporation, 
 held by it, not, as the argument supposes, for the use and benefit of the 
 people of New Hampshire, but, as the charter itself declares, "for 
 the use of the Dartmouth College." There were not, and in the na- 
 ture of things could not be, any other cestiiique use, entitled to claim 
 those funds. They were, indeed, to be devoted to the promotion of 
 piety and learning, not at large, but in that college and the establish- 
 ments connected with it; and the mode in which the charity was to be 
 applied, and the objects of it, were left solely to the trustees, who 
 were the legal governors and administrators of it. No particular person 
 in New Hampshire possessed a vested right in the bounty ; nor could 
 he force himself upon the trustees as a proper object. The legisla- 
 ture itself could not deprive the trustees of the corporate funds, nor 
 annul their discretion in the application of them, nor distribute them 
 among its own favorites. Could the legislature of New Hampshire 
 have seized the land given by the state of Vermont to the corporation, 
 and appropriated it to uses distinct from those intended by the charity r 
 against the will of the trustees? This question can not be answered 
 in the affirmative, until it is established that the legislature may law- 
 fully take the property of A. and give it to B. ; and if it could not 
 take away or restrain the corporate funds, upon what pretense can it 
 take away or restrain the corporate franchises? Without the fran- 
 chises, the funds could not be used for corporate purposes; but with- 
 out the funds, the possession of the franchises might still be of inesti- 
 mable value to the college, and to the cause of religion and learning. 
 
 [Rights of the trustees.] Thus far the rights of the corporation itself 
 in respect to its property and franchises have been more immediately 
 considered ; but there are other rights and privileges belonging to the 
 trustees collectively and severally which are deserving of notice. They 
 are intrusted with the exclusive power to manage the funds, to choose 
 the officers and to regulate the corporate concerns according to their 
 own discretion. The jus patronatus is vested in them. The visita- 
 torial power in its most enlarged extent also belongs to them. When 
 this power devolves upon the founder of a charity it is an heredita- 
 ment, descendible in perpetuity to his heirs, and in default of heirs it 
 escheats to the government. Rex v. St. Catherine's Hall, 4 T. R. 
 233. It is a valuable right, founded in property, as much so as the 
 right of patronage in any other case. It is a right which partakes of 
 a judicial nature. May not the founder as justly contract for the pos- 
 session of this right in return for his endowment, as for any other 
 equivalent? and if, instead of holding it as an hereditament, he as-
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 743 
 
 signs it in perpetuity to the trustees of the corporation, is it less a val- 
 uable hereditament in their hands? The right is not merely a collect- 
 ive right in all the trustees; each of them also has a franchise in it. 
 Lord Holt says, *'it is agreeable to reason and the rules of law, that a 
 franchise should be vested in the corporation aggregate, and yet the 
 benefit redound to the particular members, and be enjoyed by them in 
 their private capacities. Where the privilege of election is used by 
 particular persons, it is a particular right vested in each particular 
 man." Ashby v. White, 2 Ld. Raym. 938, 952; Attorney-General 
 v. Dixie> 13 Ves. 519. Each of the trustees had aright to vote in all 
 elections. If obstructed in the exercise of it, the law furnished him 
 with an adequate recompense in damages. If ousted unlawfully from 
 his office, the law would, by a mandamus, compel a restoration. 
 
 It is attempted, however, to establish that the trustees have no in- 
 terest in the corporate franchises, because it is said that they may be 
 witnesses in a suit brought against the corporation. The case cited 
 at the bar certainly goes the length of asserting that in a suit brought 
 against a charitable corporation for a, recompense for services per- 
 formed for the corporation, the governors, constituting the corporation 
 (but whether intrusted with its funds or not by the act of incorpora- 
 tion does not appear), are competent witnesses against the plaintiff. 
 Weller v. Governor of the Foundling Hospital, i Peake's Cas. 153. 
 But assuming this case to have been rightly decided (as to which, 
 upon the authorities, there may be room to doubt), the corporators 
 being technically parties to the record (Attorney-General v. City of 
 London, 3 Bro. C. C. 171 ; s. c. i Ves. J. 243; Burton v. Hinde, "5 
 T. R. 174; Nason v. Thatcher, 7 Mass. 398; Phillips on Evid. 42, 
 52, 57 and notes; i Kyd on Corp. 304, etc. ; Highmore on Mortm. 
 514), it does not establish that in a suit for the corporate property 
 vested in the trustees in their corporate capacity, the trustees are 
 competent witnesses. At all events, it does not establish that in a 
 suit for the corporate franchises to be exercised by the trustees or to 
 enforce their visitatorial power the trustees would be competent wit- 
 nesses. On a mandamus to restore a trustee to his corporate or vis- 
 itatorial power, it will not be contended that the trustee is himself a 
 competent witness to establish his own rights, or the corporate rights. 
 Yet, why not, if the law deems that a trustee has no interest in the 
 franchise ? The test of interest assumed in the argument proves noth- 
 ing in' this case. It is not enough to establish that the trustees are 
 sometimes competent witnesses ; it is necessary to show that they are 
 always so in respect to the corporate franchises and their own. It will 
 not be pretended that in a suit for damages for obstruction in the ex- 
 ercise of his official powers a trustee is a disinterested witness. Such 
 an obstruction is not a damnum absque injuria. Each trustee has a 
 vested right and legal interest in his office, and it can not be divested 
 but by due course of law. The illustration, therefore, lends no new 
 force to the argument, for it does not establish that when their own 
 rights are in controversy the trustees have no legal interest in their 
 offices.
 
 744 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 The principal objections having been thus answered satisfactorily, at 
 least, to my own mind, it remains only to declare, that my opinion, 
 after the most mature deliberation, is that the charter of Dartmouth 
 College, granted in 1769, is a contract within the purview of the con- 
 stitutional prohibition. 
 
 [Effect of the revolution.] I might now proceed to the discussion of 
 the second question ; but it is necessary previously to dispose of a doc- 
 trine which has been very seriously urged at the bar, viz., that the 
 charter of Dartmouth College was dissolved at the revolution, and is, 
 therefore, a mere nullity. A case before Lord Thurlow has been 
 cited in support of this doctrine. Attorney-General v. City of Lon- 
 don, 3 Bro. C. C. 171 ; s. c. i Ves. Jr. 243. The principal question 
 in that case was, whether the corporation of William and Mary Col- 
 lege in Virginia (which had received its charter from King William 
 and Queen Mary), should still be permitted to administer the charity 
 under Mr. Boyle's will, no interest having passed to the college, 
 under the will, but it acting as an agent or trustee, under a decree in 
 chancery, or whether a new scheme for the administration of the 
 charity should be laid before the court. Lord Thurlow directed a 
 new scheme, because the college, belonging to an independent gov- 
 ernment, was no longer within the reach of the court. And he very 
 unnecessarily added, that he could not now consider the college as a 
 corporation, or as another report (i Ves. Jr. 243) states that he 
 could not take notice of it, as a corporation, it not having proved its 
 existence as a corporation at all. If, by this, Lord Thurlow meant to 
 declare, that all charters acquired in America from the crown were 
 destroyed by the revolution, his doctrine is not law; and if it had been 
 true, it would equally apply to all other grants from the crown, which 
 would be monstrous. It is a principle of the common law, which 
 has been recognized as well in this, as in other courts, that the divis- 
 ion of an empire works no forfeiture of previously vested rights of 
 property. And this maxim is equally consonant with the common 
 sense of mankind, and the maxims of eternal justice. Terrett v. Tay- 
 lor, 9 Cranch 43, 50; Kelly v. Harrison, 2 Johns. Cas. 29; Jackson 
 v. Lunn, 3 Johns. Cas. 109 ; Calvin's Case, 7 Co. 27. This objec- 
 tion, therefore, may be safely dismissed without further comment. 
 
 [Impairment of the charter.] The remaining inquiry is, whether the 
 acts of the legislature of New Hampshire now in question, or any of 
 them, impair the obligations of the charter of Dartmouth College. 
 The attempt certainly is to force upon the corporation a new charter 
 against the will of the corporators. Nothing seems better settled at 
 the common law than the doctrine that the crown can not force upon 
 a private corporation a new charter, or compel the old members to 
 give up their own franchises, or to admit new members into the cor- 
 poration. Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1656; Rex 
 v. Pasmore, 3 T. R. 240; i Kyd on Corp. 65; Rex v. Larwood, 
 Comb. 316. Neither can the crown compel a man to become a mem- 
 ber of such corporation against his will. Rex v. Dr. Askew, 4 Burr. 
 2200. As little has it been supposed that under our limited govern-
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 745 
 
 ments the legislature possessed such transcendent authority. On one 
 occasion, a very able court held that the state legislature had no 
 authority to compel a person to become a member of a mere private 
 corporation, created for the promotion of a private enterprise, because 
 every man had a right to refuse a grant. Ellis v. Marshall, 2 Mass. 
 269. On another occasion, the same learned court declared that they 
 were all satisfied that the rights legally vested in a corporation, can 
 not be controlled or destroyed by any subsequent statute, unless a 
 power for that purpose be reserved to the legislature in the act of 
 incorporation. Wales v. Stetson, 2 Mass. 143, 146. These principles 
 are so consonant with justice, sound policy and legal reasoning that 
 it is difficult to resist the impression of their perfect correctness. The 
 application of them, however, does not, from our limited authority, 
 properly belong to the appellate jurisdiction of this court in this case. 
 
 (Stating facts as to acts of 1816.) 
 
 It is apparent that in substance a new corporation is created, includ- 
 ing the old corporators with new powers, and subject to a new control ; 
 or that the old corporation is newly organized and enlarged, and 
 placed under an authority hitherto unknown to it. The board of trust- 
 ees are increased from twelve to twenty-one. The college becomes 
 a university. The property vested in the old trustees is transferred to 
 the new board of trustees, in their corporate capacities. The quorum 
 is no longer seven but nine. The old trustees have no longer the sole 
 right to perpetuate their succession by electing other trustees, but the 
 nine new trustees are, in the first instance, to be appointed by the 
 governor and council, and the new board are then to elect other trust- 
 see from time to time as vacancies occur. The new board, too, 
 have the power to suspend or remove any member, so that a minority 
 of the old board, co-operating with the new trustees, possess the un- 
 limited power to remove the majority of the old board. The powers, 
 too, of the corporation are varied. It has authority to organize new 
 colleges in the "university and to establish an institute and elect fel- 
 lows and members thereof." A board of overseers is created (a board 
 utterly unknown to the old charter), and is invested with a general 
 supervision and negative upon all the most important acts and pro- 
 ceedings of the trustees. And to give complete effect to this new 
 authority, instead of the right to appoint, the trustees are in future 
 only to nominate, and the overseers are to approve, the president and 
 professors of the university. 
 
 If these are not essential changes, impairing the rights and authori- 
 ties of the trustees, and vitally affecting the interests and organization 
 of Dartmouth College under its old charter, it is difficult to conceive 
 what acts, short of an unconditional repeal of the charter, could have 
 that effect. If a grant of land or franchises be made to A., in trust for 
 special purposes, can the grant be revoked and a new grant thereof be 
 made to A., B. and C., in trust for the same purposes, \vithout vio- 
 lating the obligation of the first grant? If property be vested by 
 grant in A and B., for the use of a college, or an hospital, of private 
 foundation, is not the obligation of that grant impaired when the
 
 746 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 estate is taken from their exclusive management and vested in them in 
 common with ten other persons? If a power of appointment be given 
 to A. and B., is it no violation of their right to annul the appointment, 
 unless it be assented to by five other persons, and then confirmed by 
 a distinct body? If a bank or insurance company, by the terms of its 
 charter, be under the management of directors, elected by the stock- 
 holders, would not the rights acquired by the charter be impaired, if 
 the legislature should take the right of election from the stockholders 
 and appoint directors unconnected with the corporation ? These ques- 
 tions carry their own answers along with them. The common sense 
 of mankind will teach us that all these cases would be direct infringe- 
 ments of the legal obligations of the grants to which they refer, and 
 yet they are, with no essential distinction, the same as the case now 
 at the bar. 
 
 In my judgment it is perfectly clear that any act of a legislature 
 which takes away any powers or franchises vested by its charter in a 
 private corporation, or its corporate officers, or which restrains or 
 controls the legitimate exercise of them, or transfers them to other 
 persons, without its assent, is a violation of the obligations of that 
 charter. If the legislature mean to claim such, an authority, it must 
 be reserved in the grant. The charter of Dartmouth College con- 
 tains no such reservation ; and I am, therefore, bound to declare, that 
 the acts of the legislature of New Hampshire, now in question, do 
 impair the obligations of that charter and are, consequently, uncon- 
 stitutional and void. 
 
 In pronouncing this judgment, it has not for one moment escaped 
 me, how delicate, difficult and ungracious is the task devolved upon 
 us. The predicament in which this court stands in relation to the na- 
 tion at large is full of perplexities and embarrassments. It is called 
 to decide on causes between citizens of different states, between a 
 state and its citizens, and between different states. It stands, there- 
 fore in the midst of jealousies and rivalries of conflicting parties, with 
 the most momentous interests confided to its care. Under such cir- 
 cumstances, it never can have a motive to do more than its duty ; and 
 I trust, it will always be found to possess firmness enough to do that. 
 Under these impressions, I have pondered on the case before us with 
 the most anxious deliberations. I entertain great respect for the leg- 
 islature, whose acts are in question. I entertain no less respect for 
 the enlightened tribunal whose decision we are called upon to review. 
 In the examination, I have endeavored to keep my steps super antiquas 
 vias of the law, under the guidance of authority and principle. It is not 
 for judges to listen to the voice of persuasive eloquence or popular 
 appeal. We have nothing to do but to pronounce the law as we 
 find it ; and having done this, our justification must be left to the im- 
 partial judgment of our country. 
 
 DUVALL, Justice, dissented. 
 
 Judgment for $20,000 (as agreed) for plaintiff in error. 
 
 Note. Mr. Justice Miller, in his Lectures on Constitutional Law, p. 391, 
 says: "It may well be doubted whether any decision ever delivered by any
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 747 
 
 court has had such a pervading operation and influence in controlling legisla- 
 tion as this. The legislation, however, has bern that of the states of the 
 Union. The decision is founded upon that clause of the constitution which 
 declares 'That no state shall make any law impairing the obligation of con- 
 tracts.' " 
 
 The case has been frequently and severely criticised, but notwithstanding 
 this, as Chief Justice Waite (himself an enemy of the decision) says in Stone 
 v. Mississippi, 101 U. S. 814: "The doctrines of Dartmouth College v. Wood- 
 ward, announced by this court more than sixty [now eighty] years ago, have 
 become so imbedded in the jurisprudence of the United States as to make 
 them to all intents and purposes a part of the constitution itself. In this con- 
 nection, however, it must be kept in mind that it is not the charter that is 
 protected, but only any contract which the charter may contain. If there is 
 no contract there is nothing in the grant on which the constitution can act; 
 consequently, the first inquiry in all this class of cases is whether a contract 
 has in fact been entered into, and if so, what its obligations are." 
 
 So, too, in 1894, Judge Gray, of the New York Court of Appeals in Matter of 
 the City of Brooklyn, 143 N. Y. 596, on 609, says of the case: "The principle 
 enunciated has been steadily adhered to, despite criticisms, and is not ques- 
 tioned here." And Mr. Justice Miller, in Pearsall v. Great Northern Railway, 
 161 U. S. 646, on 660, says: "The doctrine of this case has been subjected to 
 more or less criticism by the courts and the profession, but has been reaffirmed 
 and applied so often as to have become firmly established as a canon of 
 American jurisprudence." See infra, p. 1413. 
 
 The first case I have found in which the power of the state to modify a cor- 
 porate charter was discussed, is Currie's Administrators v. Mutual Assurance 
 Society, 4 Henning & M. (Va.) 315, decided by the supreme court of appeals 
 of Virginia in 1809 ten years before the decision of the Dartmouth College 
 Case by the United States Supreme Court. This case is not cited or com- 
 mented upon by the attorneys upon either side, or referred to in the decis- 
 ions of the judges either in the state or the supreme courts. This seems 
 strange when William Wirt, the attorney -general, himself a Virginian, was 
 counsel for the defendant. 
 
 Upon one side it was argued: "A charter is not a law, but a compact be- 
 tween the sovereign authority of the state and a citizen. In England, though 
 the parliament enacts every law, yet it grants no charters. These are granted 
 by the king, who can not at his mere pleasure-revoke them, but they remain 
 unalterable as fate, unless the corporation do some act, or are guilty of some 
 omission which, according to established rules and principles of law, pro- 
 duces a forfeiture. And then it is not competent for the king (one of the con- 
 tracting parties) to determine the question, but belongs exclusively to the 
 tribunals selected to decide all other controversies respecting charters." On 
 the other side it was said: "A charter is not a compact between the state and 
 the grantee of the charter. On the part of the state there is no contract, express 
 or implied. The state is not bound either to give to, or to receive, to do, or 
 to abstain from doing anything. On the part of the society there is no obliga- 
 tion to the state. On what ground, then, can it be said that there is a con- 
 tract, when neither of the parties enter into any sort of obligation. The idea 
 is absurd." Another view was: "That the constitution of the United States 
 prohibits the legislature from passing such an act without the consent of the 
 body corporate, I am not disposed to controvert, although it may well be 
 questioned whether it was intended to apply to such a case. The provision in 
 the constitution that 'no state shall pass a law impairing the obligation of con- 
 tracts,' can not be understood in the most extensive sense of the words so as 
 to embrace, for instance, laws for suppressing usurious or gaming contracts, 
 but must have a reasonable construction." 
 
 The court by Roane, J., said : "With respect to acts of incorporation, they 
 ought never to be passed but in consideration of services to be rendered to 
 the public. * * * It may be often convenient for a set of associated indi- 
 viduals to have the privileges of a corporation bestowed upon them; but if 
 their object is merely private or selfish, if it is detrimental to, or not promo-
 
 748 DARTMOUTH COLLEGE V. WOODWARD. 198 
 
 tive of the public good, they have no adequate claim upon the legislature for 
 the privilege. But as it is possible that the legislature may be imposed upon 
 in the first instance, and as the public good and the interests of the associated 
 body may, in the progress of time, by the gradual and natural working of 
 events, be thrown entirely asunder, the question presents itself whether, 
 under such and similar circumstances, the hands of a succeeding legislature 
 are tied up from revoking the privileges. My answer is, that they are not. 
 In the first case, no consideration of public service ever existed and in the 
 last, none continues to justify the privilege. It is the character of a legisla- 
 tive act to be repenlable by a succeeding legislature ; nor can a preceding leg- 
 islature limit the power of its successor on the mere ground of volition only. 
 That effect can only arise from a state of things involving public utility, 
 which includes the observance of justice and good faith toward all men." 
 
 Cases and articles giving important facts relating to or taking views op- 
 posed to the decisions of the supreme court are: 1817, Trustees of Dart- 
 mouth College v. Woodward, 1 N. H. Ill, 65 N. H. 473 ; 1853, Toledo Bank v. 
 Bond, I Ohio St. 630; 1863, Chenango, etc., Co. v. Birighamton, 27 N. Y. 87, 
 on 119; 1873, President James A. Garfield, "The Future of the Republic," 5 
 Leg. Gaz. 409, 2 vol. of his works, p. 46, 61, et seq.; 1874, Dubuque v. Illinois 
 Central R. Co., 39 Iowa 56, on 95; 1878, Ashuelpt R. Co. v. Elliot, 58 N. H. 
 451; 1881, East St. Louis v. Gas Co., 98 111. 415, on 443, by Walker, J. ; 1882, 
 People v. Stephens, 62 Cal. 209, on 236; 1886, The Dartmouth College Case 
 and Private Corporations by Win. P. Wells, 9 Am. Bar. Assn. Rep. 229, et 
 seq.; 1886, Dow v. Northern R. Co., 67 N. H. 1, 36 Atl. Rep. 525, 6 Harv. L. 
 R. 161, 213, 8 Harv. L. R. 295, 396, 27 Am. L. R. 71 ; 1892, Judge Seymour D. 
 Thompson, "Abuses of Corporate Privileges," in 26 Am. L. R. 169, et seq.; 
 
 1893, E. A. Otis, in 27 Am. L. R. 525; 1894, G. P. Wanty, 4 Mich. L. J. 251; 
 
 1894, W. S.G. Noyes, 28 Am. L. R. 356, n. 440; 1895, Alfred Russell, Status and 
 Tendencies of, 30 Am. L. R. 321. 
 
 The inside history of the political and religious controversy, and its influ- 
 ence upon the decision, are set forth fully in Shirley's Dartmouth College 
 Causes ; also a short and interesting sketch of the same is found in 27 Am. L. 
 R., p. 525 ; the best reasoned legal attack upon it (in the writer's opinion) is the 
 opinion of Chief Justice Bartley, in Toledo Bank v. Bond, 1 Ohio St. 629; the 
 next best is that of Chief Justice Doe, in Dow v. Northern R., 67 N. H 1, 36 
 Atl. 525, 6 and 8 Harv. L. R. The most savage attack is that of Judge Thomp- 
 son, in 26 Am. L. R. 169, and to which view, he says in his work on corpora- 
 tions, he still adheres, 4 vol., 5380, n. 4. The best statement of both its ben- 
 eficial and evil effects is that of Wm. P. Wells, in 9 Am. Bar Assn. Rep., p. 
 229. Perhaps the two views so ably expressed as follows, will continue to 
 enlist the strongest minds of the country in upholding or destroying its doc- 
 trine and effects. Said Chancellor Kent in 1826: "The decision did more than 
 any other single act proceeding from the authority of the United States to throw 
 an impregnable barrier around all rights and franchises derived from the grant 
 of government, and to give solidity and inviolability to the literary, charitable, 
 religious and commercial institutions of our country," 1 Kent Comm. 419. On 
 the other hand, Judge Cooley, in 1871, said: "It is under the protection of the 
 decision in the Dartmouth College Case that the most enormous and threat- 
 ening powers in our country have been created, some of the great and wealthy 
 corporations having greater influence in the country at large, and upon the 
 legislation of the country than the states to which they owe their corporate 
 existence," Const. Lira .' p. 279-80 n. (2d ed.). 
 
 A full statement of the various applications of the doctrines of the college 
 case and their limitations is given by Mr. Justice Brown in Pearsall v. Great 
 N. R. Co , 161 U. S. 646, on 659, et seq., infra, p. 1413. 
 
 1. The charter contract. The charter of a private corporation, which con- 
 tains a contract, can not be so modified by subsequent legislative act, unless 
 the power to repeal or amend is reserved, as to impair the obligation of the 
 charter contract: 1839, Crease v. Babcock, 23 Pick. (Mass.) 334, 34 Am. Dec. 
 61 ; 1850. Commonwealth v. Cullen, 13 Pa. St. 133, supra, p. 417; 1865, Mayor 
 Of New York v. Second Ave. R., 32 N. Y. 261 ; 1872, Flint & F. P. R. Co", v.
 
 198 CONTRACTS IN THE CORPORATE CHARTER. 749 
 
 Woodhull, 25 Mich. 99, supra, p. 398; 1876, Hays v. Commonwealth, 82 Pa. St. 
 518; 1877, University v. North Carolina, etc., 76 N. C. 103, 22 Am. Rep. 671 ; 
 1888, People v. O'Brien, 111 N. Y. 1, 7 Am. St. Rep. 684; 1889, Grammar 
 School v. Bailey, 62 Vt. 467; 1892, Platte Co. v. Dowell, 17 Colo. 376; 1892, 
 Mayor, etc., v. Houston St. R., 83 Tex. 548, 29 Am. St. 679; 1893, Millburn v. 
 South Orange, 55 N. J. L. 254; 1894, Mathews v. St. Louis S. F. R. Co., 121 
 Mo. 298; 1894, Reagan v. Farmers' L. & T. Co., 154 U. S. 362; 1894, Indian- 
 apolis v. Consumers' Gas Co., 140 Ind. 107, 49 Am. St. Rep. 183; 1896, Cov- 
 ington & L. Turnp. R. Co. v. Sandford, 164 U. S. 578; 1897, Railroad Co. v. 
 Harris, 99 Tenn. 684; 1898, State, ex rel.,v. St. Louis, etc., 145 Mo. 551; 1898, 
 Walla Walla City v. Walla Walla Water Co., 172 U. S. 1. See, also, i nfra, 
 cases immediately following this note. 
 
 2. Consideration necessary. There must be some consideration moving 
 to the state in order to support the contract; but the implied agreement upon 
 the part of the corporation to perform the duties imposed upon it is a suffi- 
 cient consideration to support all contracts contained in the charter at the 
 time of its creation ; a new consideration is essential to support subse- 
 quent contracts with the state. 1871, Salt Company v. East Saginaw, 80 U. 
 S. (13 Wall.) 373; 1874, Tucker v. Fergeson, 89 U. S. (22 Wall.) 527; 1897, 
 Grand Lodge v. New Orleans, 166 U. S. 143. 
 
 3. Unexecuted powers. But powers not acted upon, or unexecuted, 
 are in the nature of an offer only on the part of the state, and can be with- 
 drawn at any time before they are acted upon. 1896, Pearsall v. Great North- 
 ern Railway, 161 U. S. 646, infra, p. 1413; 189.6, Bank of Commerce v. Tennes- 
 see, 163 U. S. 416; 1898, Galveston, H., etc., R. v. Texas, 170 U. S. 226. 
 
 4. Laws giving" new or different remedies. Laws reasonably affecting 
 the remedy only, do not impair the contract obligation. 1829, Vanzant v. 
 Waddel, 2 Yerg. (Tenn.) 259 ; 1851, Carey v. Giles, 9 Ga. 253 ; 1881, Penniman's 
 Case, 103 IT. S. 714. 
 
 5., Charitable and educational institutions. The constitutional protection 
 extends to public charitable and educational institutions : 1838, Regents of 
 Univ. of Md. v. Williams, 9 G. & J. (Md.) 365, 31 Am. Dec. 72; 1847, Brown 
 v. Hummel, 6 Pa. St. 86, 47 Am. Dec. 431 ; 1852, Vincennes Univ. v. State, 
 14 How. (55 U. S.) 268; 1887, Board of Education v. Bakewell, 122 111. 339; 
 1888, Liggett v. Ladd, 17 Ore. 89 ; 1889, Grammar School v. Bailey, 62 Vt. 467 ; 
 1894, Graded School District v. Trustees, 95 Ky. 436; 1895, Ohio v. Neff, 52 
 O. S. 375. 
 
 6. Municipal charters. But charters of public, or municipal, corporations 
 may be changed or modified : 1835, People v. Morris, 13 Wend. 325, supra, 
 p. 113; 1836, Armstrong v. Board, 4 Blackf. (Ind.) 208; 1850, East Hartford v. 
 Bridge Co., 10 How. (51 U. S.) 511; 1856, Montpelier v. East Montpelier, 29 
 Vt. 12, 67 Am. Dec. 748; 1860, Aspinwall v. Commissioners of Davies Co., 22 
 How. (63 U.S.) 364; 1879, Newton v. Commissioners, 100 U.S. 548; 1886, 
 Portland R. Co. v. City, 14 Ore. 188, 58 Am. Rep. 299; 1891, New Orleans v. 
 N. O. W. W.; 142 U. S. 79. 
 
 7. Charter exemptions from taxation. Exemptions from taxation, if sus- 
 tained by a sufficient consideration, are contracts protected by the constitu- 
 tional provision ; but the later cases strictly require a sufficient consideration. 
 1853, Piqua Branch Bank v. Knoop, 16 How. (57 U. S.) 369; 1869, Home of 
 Friendless and Washington Univ. v. Rouse, 8 Wall. (75 U. S.) 430, 439; 1871, 
 Salt Company v. East Saginaw, 13 Wall. (80 U. S.) 373; 1877, Farrington v. 
 Tennessee, 95 U. S. 679; 1881, Asylum v. New Orleans, 105 U. S. 362; 1883, 
 Worth v. Railroad Co., 89 N. C. 291, 45 Am. Rep. 679; 1892, Louisville Water 
 Co. v. Clark, 143 U. S. 1; 1892, Hamilton Gas L. Co. v. Hamilton, 146 U. S. 
 258; 1897, Grand Lodge F. & A. Masons v. New Orleans, 166 U. S. 143; 1899, 
 Citizens' Savings Bank v. Owensboro, 173 U. S. 636, on 644 ; 1899, City of 
 Louisville v. Bank of Louisville, 174 U. S. 439. 
 
 8. Power to regulate rates. Unless there is a definite express grant of the 
 power to regulate its own charges to a gtto<-public corporation, the state may 
 prescribe such rates as will permit a reasonable profit to the corporation 
 1876, Munn v. Illinois, 94 U. S. 113; 1876, Chicago, B. & Q. R. v. Iowa, 94 U.
 
 75O YEATON V. BANK OF THE OLD DOMINION. 199 
 
 S. 155; 1876, Peik v. C. & N. W. R., 94 U. S. 164; 1884, Laurel Fork R. Co. 
 v. West Virginia, 25 W. Va. 324; 1886, Railroad Commission Cases, 116 U. S. 
 307; 1889, Chicago, M. & St. P. R. v. Minn., 134 U. S. 418; 1892, Budd v. New 
 York, 143 U. S. 517 ; 1894, Reagan v. Fanners' L. & T. Co., 154 U. S. 362; 1894, 
 Brass v. North Dakota, 153 U. S. 391 ; 1896, Covington & L. Turnp. R. Co. v. 
 Sandford. 164 U. S. 578; 1898, Smyth v. Ames, 169 U. S. 466; s. c., 171 U. S. 
 361; 1898, Nebraska Tl. Co. v. State, 55 Neb. 627; 1899, Lake Shore & M. S. 
 R. Co. v. Smith, 173 U. S. 684, reversing Smith v. L. S. R. Co., 114 Mich. 460; 
 1899, City of Danville v. Danville Water Co., 180 111. 235; 1899, San Diego 
 L. & T. Co. v. National City, 174 U. S. 739; 1899, Toledo v. N. W. O. Natl. 
 Gas Co., 6 Ohio N. P. 531; "1899, Gould v. Edison El. 111. Co., 29 Miscl, (N. 
 Y.) 559; 1899, Bailey v. Fayette Gas-F. Co., 193 Pa. 175, 44 Atl. Rep. 251. 
 
 9. Bridge franchises. See Piscataqua Bridge v. New Hampshire Bridge, 
 7 N. H. 35, on 68, supra, p. 309, and note, p. 320. 
 
 10. As to police power, eminent domain and taxation and power to repeal, 
 see infra, pp. 1344, 1337, 1370. 
 
 Sec. 199. 2. Contract between the state and the corporation. 
 YEATON v. BANK OF THE OLD DOMINION. 1 
 
 1872. IN THE COURT OF APPEALS OF VIRGINIA. 21 Grattan's (Va.) 
 
 Re P- 593- 6 3- 
 
 [Action of assumpsit by the bank against Yeaton to recover the 
 sum of $561.07, and interest; the defense was a tender of the amount 
 in notes issued by the branch bank at Pearisburg. The mother bank 
 was located at Alexandria, and the legislature reserved the "right to 
 repeal, alter or modify the charter at its pleasure;" the branch bank 
 was subject to the charter of the mother bank, and its notes were to 
 "be received in payments of debts due the bank, whether contracted 
 at the parent bank or at the branch bank." During the war, while 
 Alexandria was in possession of the United States authorities, and 
 Pearisburg not, the Virginia legislature authorized the branch bank to 
 issue notes of smaller denomination than the original charter allowed ; 
 these notes became greatly depreciated, and were the ones tendered 
 in payment of the debt. Neither the directors nor stockholders ever 
 accepted any amendment of the charter. Judgment below was for 
 the bank, and this is the error assigned.] 
 
 CHRISTIAN, J. * * * The power of the legislature "to repeal, 
 alter or modify the charter of any bank at its pleasure," must be held 
 to be limited to this extent. It may certainly repeal the charter of 
 any bank, but it can not compel a bank to accept an amendment or 
 modification of its charter. Nor is any such amendment or modifica- 
 tion of its charter binding upon the bank 'without its acceptance, 
 Banks are private corporations, created by a charter or act of incor- 
 poration from the government, which is in the nature of a contract, 
 and, therefore, in order to complete the creation of such corporations, 
 something more than the mere grant of a charter is required ; that is, 
 in order to give to the charter the full force and effect of an executed 
 contract, it must be accepted. It is clear that the government can not 
 enforce the acceptance of a charter upon a private corporation with- 
 
 1 Statement abridged. Only part of opinion given.
 
 199 CONTRACT BETWEEN STATE AND CORPORATION. 751 
 
 out its consent. * * * These well-settled principles are everywhere 
 recognized as applicable to the original charters of incorporation, and 
 upon principle and authority they apply with equal force to any amend- 
 ment or modification of the charter as well as to the original charter. 
 Though the legislature may have the reserved power to amend or 
 modify a charter of incorporation, it can no more force the corpora- 
 tion to accept such amendment or modification than it could have 
 forced upon them the acceptance of the original charter without their 
 consent. Under the reservation they can repeal or destroy the char- 
 ter, "without any consent on the part of the corporators, but as long as 
 they remain in existence as a corporate body, they necessarily have the 
 power to reject an amendment or modification of their charter. The 
 power reserved by the legislature gives the right certainly to repeal or 
 destroy, but so far as the right to modify or alter is concerned, 't is 
 nothing more than the ordinary case of a stipulation that one of the 
 parties to a contract may vary its terms with the consent of the other 
 contracting party. These principles grow out of the nature of char- 
 ters or acts of incorporation, which are regarded in the nature of 
 contracts. The amendment or modification must be made by the par- 
 ties to the contract, the legislature on the one hand and the corpora- 
 tion on the other, the former expressing its intention by means of a 
 legislative act and the latter assenting thereto by a vote of the majority 
 of the stockholders, according to the provisions of its charter, or by 
 other acts showing its acceptance. 
 
 The reservation of the right to alter, amend or repeal the act by 
 which the corporation is created may be prudent and salutary, but it 
 seems to be a necessary implication that if the legislature should 
 undertake to make what in their opinion is a legitimate alteration or 
 amendment, the corporation has the power to reject or accept it what- 
 ever may be the consequences. One consequence undoubtedly is, 
 that the corporation can not conduct its operations in defiance of the 
 power that created it; and if it does not accept the modification 
 or amendment proposed, must discontinue its operations as a corpo- 
 rate body. But such amendment or modification can not be forced 
 upon the corporation without its consent. Sage, etc., v. Dillard, etc., 
 15 B. Mon. R. 340; Allen v. McKean, i Sumner's R. 277; Durfee 
 v. Old Colony and Fall River R. Co., 5 Allen's R. 230. Every 
 amendment or modification of a charter of incorporation is nothing 
 more than a new contract, which is not binding upon the corporate 
 body until accepted by them. Applying these doctrines, which seem 
 to be well settled, to the case before us, it is manifest that the Bank 
 of Old Dominion can not be held bound by the acts of 1862 as amend- 
 ments of its charter. * * * 
 
 It is no answer to this view that the branch bank at Pearisburg was 
 within the territorial jurisdiction of the Richmond government, and 
 subject to its authority. This bank was not an independent corpora- 
 tion. It had no charter; it was but a branch of its mother bank at 
 Alexandria, subject to its charter. It was but the agent, the mother 
 bank being its principal. It could do no act to bind its principal with-
 
 752 HAWTHORNE V. CALEF. 2OO 
 
 out the consent and authority of that principal. Nor could the legis- 
 lature authorize the branch bank which owed its existence to the 
 charter of the mother bank to issue small notes, or to do any other act 
 as a bank without the consent of the mother bank. The only author- 
 ity which the legislature could exercise was that which it reserved 
 under the power "to repeal, modify or alter" the charter of the 
 mother bank. I have already shown that this was not done by the 
 acts of 1862, which could not operate upon the Bank of the Old Do- 
 minion as a change or modification of its charter. * * * 
 Affirmed. 
 
 Note. See Commonwealth v. Cullen, supra, p. 417 ; Plank-Road v. Woodhull, 
 supra, p. 398; Railway Co. v. Allerton, supra, p. 442; Ashton v. Burbank, su- 
 pra, p. 87; and note to Dartmouth College v. Woodward, supra, p. 746. 
 
 Sec. 200. 3. Contract between the state and corporate creditors, 
 and between stockholders and corporate creditors, in the case 
 of statutory liability. 
 
 HAWTHORNE v. CALEF. 1 
 
 1864. IN THE SUPREME COURT OF THE UNITED STATES. 2 Wall. 
 
 (69 U. S.) 10-23. 
 
 The constitution of the United States ordains that "no state shall 
 pass any law impairing the obligation of contracts." With this pro- 
 vision in force, the state of Maine, on the ist of April, 1836, incor- 
 porated a railroad company, the charter providing that "the shares of 
 individual stockholders should be liable for the debts of the corpora- 
 tion." "And in case of deficiency of attachable corporate property or 
 estate," the provision went on to say, "the individual property , rights 
 and credits of any stockholder shall be liable to the amount of his 
 stock, for all debts of the corporation contracted prior to the transfer 
 thereof, for the term of six months after judgment recovered against 
 said corporation, and the same may be taken in execution on said judg- 
 ment in the same manner as if said judgment and execution were 
 against him individually, or said creditor, after said judgment, may 
 have his action on the case against said individual stockholder; but in 
 no case shall the property, rights and credits of said stockholder be 
 taken in execution, or attached as aforesaid, beyond the amount of his 
 said stock." Another section provides that if sufficient corporate 
 property to satisfy the execution could not be found, the officer having 
 the execution should certify the deficiency on the execution, and give 
 notice thereof to the stockholder whose property he was about to take, 
 and if such stockholder should show to the creditor or officer sufficient 
 attachable corporate property to satisfy the debt, "his individual prop- 
 
 1 Arguments and parts of opinion omitted.
 
 200 CONTRACTS BETWEEN STATE AND CREDITORS. 753 
 
 erty, rights and credits shall thereupon be exempt from attachment and 
 execution." 
 
 The plaintiff, Hawthorne, who had supplied the corporation, then 
 embarrassed and insolvent, with materials to build its road, having 
 obtained judgment as a creditor against it, and being unable to get 
 from it satisfaction (the company having, in fact, no property), sued 
 the defendant, Calef, who was a stockholder, both at the time when 
 the debt was contracted and when judgment for it was rendered, and 
 no transfer of whose stock had been made. A few months after the 
 debt was contracted, the legislature of Maine passed a statute repeal- 
 ing the "individual liability" clause of the charter. 
 
 On a question before the supreme court of Maine the highest court 
 of law in that state whether such repeal was or was not repugnant 
 to the clause above cited of the constitution, that court held that it 
 was not; that the original provision not making the stockholder per- 
 sonally liable in any way did not constitute a "contract" between 
 the creditor and him, within the meaning of the constitution, and that 
 while, but for the repealing act, the plaintiff would have been entitled 
 to recover of the stockholder individually to the extent of his stock, 
 this repealing act had taken away and destroyed such right. 
 
 Judgment being given accordingly by the said court in favor of the 
 state statutes, the correctness of such judgment was now on error be- 
 fore this court. 
 
 NELSON, J. The question upon the provisions of the charter of 
 the railroad company in connection with the sale of the property by 
 the plaintiff to the corporation out of which this debt accrued is 
 whether a contract, express or implied, existed between him and the 
 stockholder? 
 
 It is asserted in behalf of the latter that a contract existed only 
 between the creditors and the corporation ; and that the obligation of 
 the stockholder rests entirely upon a statutory liability, destitute of 
 any of the elements of a contract. 
 
 Without stopping to discuss the question upon the clause of the 
 statute, we 'think that the case falls within the principle of Woodruff 
 v. Trapnal, 10 How. 190; and Curran v. State of Arkansas, 15 How. 
 304, heretofore decided in this court. 
 
 In the first of these cases the charter of the bank provided that the 
 bills and notes of the institution should be received in all payment of 
 debts due to the state. The bank was chartered 2d November, 1836. On 
 the loth January, 1845, this provision was repealed, and the question 
 was whether or not, after this repeal, the bills and notes of the bank 
 outstanding at the time were receivable for debts due to the state. 
 The court held, after a very full examination, that the clause in the 
 charter constituted a contract with the holders of the bills and notes on 
 the part of the stale, and that the repealing act was void as impairing 
 the obligation of the contract. 
 
 In the second case the charter of the bank contained a pledge or 
 assurance that certain funds deposited therein should be devoted to 
 
 48 WIL. CASES.
 
 754 TOMLINSON V. JESSUP. 2OI 
 
 the payment of its debts. It was held by the court that this consti- 
 tuted a contract with the creditors, and that the acts of the legislature 
 withdrawing these funds were void, as impairing the obligation of the 
 contract. 
 
 Now, it is quite clear that the personal liability clause in the char- 
 ter in the present case pledges the liability or guarantee of the stock- 
 holders to the extent of their stock to the creditors of the company, 
 and to which pledge or guarantee the stockholders, by subscribing for 
 stock and becoming members of it, have assented. They thereby 
 virtually agree to become security to the creditors for the payment of 
 the debts of the company, which have been contracted upon the faith 
 of this liability. * * * 
 
 By the clause in the charter subjecting the property of the stock- 
 holder he becomes liable to the creditor, in case of the inability or 
 insolvency of the company for its debts, to the extent of his stock. 
 The creditor had this security when the debt was contracted with the 
 company over and above its responsibility. This remedy the repeal- 
 ing act has not merely modified to the prejitdice of the creditor, but has 
 altogether abolished, and thereby impaired the obligation of his con- 
 tract with the company. * * * 
 
 Reversed. 
 
 Note. See generally: 1845, Freeland v. McCullough, 1 Denio (N. Y.) 414, 
 43 Am. D. 685, note, 694; 1847, Corning v. McCullough, 1 N. Y. 47, 49 Am. D. 
 287, note, 308; 1857, Conant v. Van Shaick, 24 Barb. (N. Y.) 87; 1862, Story 
 v. Furman, 25 N. Y. 214; 1870, In re Telegraph C. Co., L. R. 10 Eq. Cas. 384; 
 1871, Norris v. Wrenschall, 34 Md. 492; 1871, Lowry v. Inman, 46 N. Y. 119; 
 1873, Provident Sav. Inst. v. Jackson, etc., 52 Mo.*552; 1878. Sinking Fund 
 Cases, 99 U. S. 700; 1881, Aultman's Appeal, 98 Pa. Stat. 505; 1883, Jerman v. 
 Benton, 79 Mo. 148; 1884,Ninnick v. Iron Works, 25 W. Va. 184; 1887, Fourth 
 National Bank v. Francklyn, 120 U. S. 747 ; 1888, Leavitt v. Lovering, 64 N. H. 
 607, 1 L. R. A. 58; 1888, McDonnell v. Alabama, etc., 85 Ala, 401 ; 1892, Ken- 
 nedy v. Bank, 97 Cal. 93; 1896, McGowan v. McDonald, 111 Cal. 57, 52 Am. 
 Stat. Rep. 149. But see, contra, 1858, Coffin v. Rich, 45 Maine 507, 71 Am. D. 
 559; 1867, Woodhouse v. Commw. Ins. Co., 54 Pa. Stat. 307. 
 
 Sec. 201. 4. Contract between the state and the corporators or 
 members. 
 
 TOMLINSON v. JESSUP. 1 
 
 1872. IN THE SUPREME COURT OF THE UNITED STATES. 15 
 Wallace (82 U. S.) 454-459. 
 
 [Bill in equity by Jessup, a stockholder of the Northeastern Rail- 
 road Company against Tomlinson and other officers of South Carolina 
 to enjoin them from levying a tax on the property of the road. Lower 
 court granted the injunction, and appeal taken.] 
 
 FIELD, J. The constitution of South Carolina, adopted in 1868, 
 declares that the property of corporations then existing or thereafter 
 
 1 Statement except as given in opinion omitted.
 
 201 CONTRACT BETWEEN STATE AND MEMBERS. 755 
 
 created, shall be subject to taxation, except in certain cases, not ma- 
 terial to the present inquiry. The subsequent legislation of the state 
 carried out this requirement and provided for the taxation of the prop- 
 erty of railroad companies; and the question presented is, whether the 
 act of December, 1855, to amend the charter of the Northeastern Rail- 
 road Company, exempted the property of that company from such 
 taxation. The company was incorporated in 1851, and at that time a 
 general law of the state was in existence, passed in 1841, which c-n- 
 acted that the charter of every corporation subsequently granted, and 
 any renewal, amendment or modification thereof, should be subject to 
 amendment, alteration or repeal by legislative authority, unless the act 
 granting the charter or the renewal, amendment or modification in 
 express terms excepted it from the operation of that law. The pro- 
 visions of that law, therefore, constituted the condition upon which 
 every charter of a corporation subsequently granted was held, and upon 
 which every amendment or modification was made. They were as 
 operative and as much a part of the charter and amendment as if in- 
 corporated into them. 
 
 The act amending the charter of the Northeastern Railroad Com- 
 pany, passed in December, 1855, provided that the stock of the com- 
 pany, and the real estate it then owned, or might thereafter acquire, 
 connected with or subservient to the works authorized by its charter, 
 should be exempted from taxation during the continuance of the char- 
 ter. This act contained no clause excepting the amendment from the 
 provisions of the general law of 1841. It was, therefore, itself sub- 
 ject to repeal by force of that law. 
 
 It is true that the charter of the company -when accepted by the 
 corporators constituted a contract between them and the state, and 
 that the amendment, -when accepted, formed a part of the contract 
 from that date and -was of the same obligatory character. And it 
 may be equally true, as stated by counsel, that the exemption from 
 taxation added greatly to the value of the stock of the company, and 
 induced the plaintiff to purchase the shares held by him. But these 
 considerations can not be allowed any weight in determining the 
 validity of the subsequent taxation. The power reserved to the state 
 by the law of 1841 authorized any change in the contract as it origin- 
 ally existed, or as subsequently modified, or its entire revocation. The 
 original corporators, or subsequent stockholders, took their interests 
 with knowledge of the existence of this power, and of the possibility 
 of its exercise at any time in the discretion of the legislature. The 
 object of the reservation, and of similar reservations in other charters, 
 is to prevent a grant of corporate rights and privileges in a form which 
 will preclude legislative interference with their exercise if the public 
 interest should at any time require such interference. It is a pro- 
 vision intended to preserve to the state control over its contract with the 
 corporators, which without that provision would be irrepealable and 
 protected from any measures affecting its obligation. 
 
 There is no subject over which it is of greater moment for the state 
 to preserve its power than that of taxation. It has nevertheless been
 
 756 TOMLINSON V. JESSUP. 2OI 
 
 held by tnis court, not, however, without occasional earnest dissent 
 from a minority, that the power of taxation over particular parcels of 
 property, or over property of particular persons or corporations, may 
 be surrendered by one legislative body, so as to bind its successors 
 and the state. It was so adjudged at an early day in New Jersey v. 
 Wilson, 7 Cranch 164; the adjudication was affirmed in Jefferson 
 Bank v. Skelly, i Black 436 ; and has been repeated in several cases 
 within the past few years, and notably so in the cases of The Home 
 of the Friendless v. Rouse, 8 Wallace 430; and Wilmington Rail- 
 road v. Reed, 13 Wallace 264. In these cases, and in others of a 
 similar character, the exemption is upheld as being made upon con- 
 siderations moving to the state which give to the transaction the char- 
 acter of a contract. It is thus that it is brought within the protection 
 of the federal constitution. In the case of a corporation , the exemption, 
 if originally made in the act of incorporation, is supported upon the 
 consideration of the duties and liabilities which the corporators assume 
 by accepting the charter. When made, as in the present case, by an 
 amendment of the charter, it is supported upon the consideration of the 
 greater efficiency with which the corporation will thus be enabled to dis- 
 charge the duties originally assumed by the corporators to the public, or 
 of the greater facility with which it will support its liabilities and carry 
 out the purposes of its creation. Immunity from taxation, constituting 
 in these cases a part of the contract with the government, is, by the 
 reservation of power such as is contained in the law of 1841, subject 
 to be revoked equally with any other provision of the charter when- 
 ever the legislature may deem it expedient for the public interests that 
 the revocation shall be made. The reservation affects the entire re- 
 lation between the state and the corporation, and places under legis- 
 lative control all rights, privileges and immunities derived by its charter 
 directly from the state. Rights acquired by third parties, and which 
 have become vested under the charter, in the legitimate exercise of 
 its powers, stand upon a different footing ; but of such rights it is un- 
 necessary to speak here. The state only asserts in the present case the 
 power under the reservation to modify its own contract with the corpo- 
 rators; it does not contend for a power to revoke the contracts of the 
 corporation with other parties, or to impair any vested rights thereby 
 acquired. 
 Reversed. 
 
 Note. See cases cited under Dartmouth College v. Woodward, supra, p. 746, 
 and Yeaton v. Bank, supra, p. 750. 1851, Stevens v. Rutland, etc., R., 29 Vt. 
 545 ; 1852, Bank of Pennsylvania v. Commonwealth, 19 Pa. St. 144 ; 1856, Erie 
 R. Co. v. Casey, 26 Pa. St. 287 ; 1867. Zabriskie v. Hackensack R., 18 N. J. 
 Eq. 178; 1871, Wilmington R. Co. v. Reid, 80 U. S. (13 Wall.) 264; 1873, Del- 
 aware R. Tax, 85 U. S. (18 Wall.) 206; 1875, Lothrop v. Stedman, 42 Conn. 
 583.
 
 2O2 CONTRACT BETWEEN CORPORATION AND MEMBERS. / $? 
 
 Sec. 202. 5- Contract between the corporation and members, or 
 among the members themselves. 
 
 (a) As to amount to be contributed. 
 
 IRELAND v. THE PALESTINE, ETC., "TURNPIKE COMPANY. 1 
 1869. IN THE SUPREME COURT OF OHIO. 19 Ohio St. Rep. 369-375. 
 
 [Error to common pleas reserved in the district court. The Turn- 
 pike Company was organized in 1852, under a law imposing no indi- 
 vidual liability upon stockholders beyond their subscription. Ireland 
 was a subscriber to the stock and had fully paid up his subscription. 
 A later act (May 3, 1852) authorized those companies who should 
 accept its provisions to issue bonds to complete their roads or pay 
 their debts, making the stockholders individually Hable to the amount 
 of their stock on such bonds. The directors accepted this act, and 
 issued and sold the bonds. A later act provided that a majority of 
 shareholders at a meeting duly called could make an assessment pro 
 rata for the payment of such liability. At a meeting duly called 
 (Ireland not being present or represented) an assessment was ordered. 
 Upon Ireland's refusal to pay, the company brought suit and obtained 
 judgment in the lower court. Petition in error was brought to reverse 
 this]. 
 
 WELCH, J. In our judgment the act of May 3, 1852, in so far as 
 it authorizes assessments against stockholders who have paid the full 
 amount of their subscriptions, and who by the charter of the company, 
 or the laws under which it was organized, were not individually liable 
 for its debts, is unconstitutional. It impairs the validity of the contract 
 between the company and the stockholder. In a contract between the 
 company and a stockholder, or in an action by the former or its creditors 
 against the latter, the stockholder is to be regarded as an individual 
 person, separate and distinct from the corporation. Pie becomes a 
 stockholder by virtue of a contract with the company, and he has a 
 right to stand upon the terms of that contract, interpreted and lim- 
 ited by the laws under which U was made. By his contract with this 
 company Ireland agreed to pay a specified sum, and no more. This 
 sum he has fully paid, and to require him to contribute an additional 
 amount would be to violate the contract between the parties. Let it 
 be understood that the amount for which a stockholder becomes liable 
 to the company by his subscription is not limited by his contract, but 
 by the discretion of the directors, or the stockholders at large, and no 
 prudent man will subscribe for stock in a corporation. If such lie 
 the law, it is of little importance to the subscriber whether the amount 
 of stock taken be large or small, because it can be indefinitely in- 
 creased at the pleasure of the company, whenever the legislature sees 
 proper to give the power to do so. If a subscriber contracts to pay a 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 758 WHITE MOUNTAINS R. CO. V. EASTMAN. 2O3 
 
 sum which he deems within his means of payment, he may be called 
 upon to contribute an amount utterly beyond those means, and which 
 may render him bankrupt. No subscriber would be safe under such 
 a law, or have any rule by which to determine the amount of stock 
 he could afford to take. In vain would he look to the charter of the 
 company, or to the provisions of the constitution and subsisting laws 
 of the state, to learn the nature and extent of the liability he was 
 about to incur, if that liability can, at the pleasure of the legislature, 
 be indefinitely increased or modified by retroactive laws. * * * 
 Reversed. 
 
 Note. See, 1806, Wales v. Stetson, 2 Mass. 143, supra, p. 150 ; 1820, Livings- 
 ton v. Lynch, 4 Johns. Ch. (N. Y.) 573; 1824, Natusch v. Irving, 2 Cooper 
 Ch. 358; 1843, Hartford & N. H. R. Co. v. Crosswell, 5 Hill (N. Y.) 383; 1851, 
 Stevens v. Rutland, etc., R., 29 Vt. 545; 1854, New Orleans, etc., R. Co. v. 
 Harris, 27 Miss. 517; 1860, Simpson v. Westminster, etc., Co., 8 H. L. Cas. 
 712; 1861, Abbott v. Hard Rubber Co., 33 Barb. 578; 1863, Clearwater v. 
 Meredith, 68 U. S. (1 Wall.) 25; 1867, Zabriskie v. Hackensack, etc., R., 18 
 N. J. Eq. 178, 90 Am. Dec. 617; 1869, Central R. Co. v. Collins, 40 Ga. 582, 
 On 624; 1873, Railway Co. v. Allerton, 85 U. S. (18 Wall.) 223, supra, p. 442; 
 1879, Kent v. Quicksilver Mining Co., 78 N. Y. 159, infra, p. 790; 1880, Hoey v. 
 Henderson, 32 La. Ann. 1069; 1885, Academy of Music v. Flanders, 75 Ga. 
 14; 1892, People v. Ballard, 134 N. Y. 269; 1898, Forre&ter v. Boston & M. C. 
 C. & S. Co., 22 Mont. 430, 55 Pac. Rep. 229; 1899, Pronick v. Spirits Distrib. 
 Co., 58 N. J. Eq. 97, 42 Atl. Rep. 586 ; 1901, Bedford v. Eastern B. & L. Assn., 
 181 U. S. 227. 
 
 Sec. 203. Same. 
 
 (#) That subscriptions are made in good faith. 
 
 WHITE MOUNTAINS RAILROAD CO. v. EASTMAN. 1 
 
 1856. IN THE SUPREME JUDICIAL COURT OF NEW HAMPSHIRE. 
 34 N. H. Rep. 124-147. 
 
 [Appeal from report of commissioner of insolvency upon Eastman's 
 estate, allowing the railroad company $2,642.12 upon a subscription 
 made by decedent for thirty shares to the company's stock. The 
 original subscription was made in writing in the company's subscrip- 
 tion book, apparently upon the same terms as other subscriptions, but 
 at the time it was made the proper agents of the corporation agreed 
 in writing to release the decedent, at his or his administrator's elec- 
 tion, from all liability upon twenty-five shares. This was the defense 
 made.] 
 
 SAWYER, J. * * * The two contemporaneous writings upon 
 the same subject, between the same parties, are to be considered to- 
 gether as one contract, unless upon other grounds the writing given 
 by the corporation is to be held void. Thus considered in connec- 
 tion, effect would be given to all the stipulations on both sides, con- 
 
 1 Statement abridged. Only small part of opinion given.
 
 2O3 CONTRACT BETWEEN CORPORATION AND MEMBERS. 759 
 
 tained in both writings, as constituting together one agreement. If 
 no person were to be affected by the contract but the parties them- 
 selves, it would be competent for them to agree that the intestate 
 should take and pay for thirty shares, subject, however, to the condi- 
 tion that if within one year he should elect to reduce the number so 
 subscribed for to five, or any other number not less than five, he might 
 be at liberty so to do, and that the corporation, upon his paying for the 
 thirty or other reduced number of shares, would give him proper cer- 
 tificates therefor, constituting him the owner of them. * * * If they, 
 for the purpose of misleading and deceiving third persons having an 
 interest in the subject of their contract, held out the subscription of the 
 intestate, as shown upon their subscription book, as the contract be- 
 tween them and him, and concealed from those third persons the fact, 
 ' material for them to know, that there was a secret stipulation making the 
 contract an entirely different thing, the principles of common honesty 
 would require that they should be compelled to stand to the agreement 
 as they held it out to be. * * * That the proceeding is a fraud upon 
 third persons is clear from the relation in which subscribers for stock 
 in a corporation of this kind stand toward each other. In the sub- 
 scription of each person every other subscriber has a direct interest. 
 Their respective subscriptions are contributions or advancements for a 
 common object. The action of each in his subscription may be supposed 
 to be influenced by that of the others, and every subscription to be based 
 upon the ground that the others are what upon their face they purport 
 to be. * * * 
 
 The fact that one man has bound himself to place a certain amount 
 of his money upon the risk involved in the enterprise is an induce- 
 ment to others to venture in like manner. Seeing who are his associ- 
 ates, and the extent of the liability which they have assumed, he reg- 
 ulates his own upon that consideration ; and though inform and legal 
 effect the contract of each is with the corporation, yet among the subscrib- 
 ers themselves it is to be regarded as an agreement with every other sub- 
 scriber to bear that proportion of the common burthen to which he pro- 
 fesses to bind himself by the contract which he holds out to them as his 
 contract with the corporation . * * * To hold that the secret stipulation is 
 valid as between these parties would be to give full effect to the iraud 
 by relieving the estate of the intestate from a part of that burthen which 
 he held out to the other subscribers he had assumed, and throwing 
 upon them the necessity of providing for it. To hold that by fraud the 
 whole contract as between the parties is void would but increase the in- 
 justice as to the other subscribers, for it would throw upon them the 
 whole of that proportion of the common burthen which the intestate held 
 out to them he had assumed ; while, on the other hand, by holding that 
 the contract which the parties held out to them as the tme one, was 
 in fact the contract made by them all secret stipulations rendering it 
 other than that being void as fraudulent toward third persons the 
 contemplated fraud is defeated and perfect justice done to the other
 
 760 WHITE MOUNTAINS R. CO. V. EASTMAN. 204 
 
 subscribers, and at the same time in so holding no wrong is done to 
 the parties of which either has reason to complain. * * * 
 Affirmed. 
 
 N$te. See, 1827, Center & K. Turnpike Co. v. McConaby, 16 S. & R. (Pa.) 
 140;" 1858, Graff v. Pittsburg & S. R. Co., 31 Pa. St. 489; 1859, LaGrange & M. 
 Plank R. Co. v. Mays, 29 Mo. 64; 1869, Custar v. Titusville Gas & W. Co., 63 
 Pa. St. 381; 1875, Melvin v. Lamar Ins. Co., 80 111. 446, 22 Am. Rep. 199; 
 1876, Phoenix Warehouse Co. v. Badger, 67 N. Y. 294; 1878, Miller v. Han- 
 over, Jc. & S. R. Co., 87 Pa. St. 95, 30 Am. Rep. 349; 1886, Galena & S. W. 
 R. Co. v. Ennor, 116 111. 55; 1888, Topeka Manufacturing Co. v. Hale, 39 
 Kan. 23; 1889, Morrow v. Iron & Steel Co., 87 Tenn. 262, 3 L. R. A. 37. 
 
 Compare, 1872, Burke v. Smith, 16 Wall. 390; 1888, Morgan v. Struthers, 
 131 U. S. 246; 1888, Meyer v. Blair, 109 N. Y. 600, 4 Am. St. Rep." 500; 1889, 
 Winston v. Dorsett Pipe & P. Co., 129 111. 64, 4 L. R. A. 507. 
 
 But under some circumstances conditional deliveries in escrow are valid. 
 See, 1874, Bucher v. Dillsburg& M. R. Co., 76 Pa. St. 306; 1894, Great West- 
 ern Tel. Co. v. Loewenthal, 154 111. 261 . Also, Minneapolis Threshing Mac. Co. 
 v. Davis, 40 Minn. 110, 12 Am. St. Rep. 701, 3 L. R. A. 796, supra, p. 492; 
 Wight v. Shelby R. Co., 16 B. Mon. 4, supra, p. 536, and Cass v. P., V. & C. 
 R. Co., 80 Pa. St. 31, supra, p. 538. 
 
 ARTICLE III. THE CORPORATE FUNDS CAPITAL STOCK. 
 
 Sec. 204. In general. "The legal relations resulting from incor- 
 poration subsist in respect of the object of incorporation spe- 
 cified in the charter or articles of association and the means of 
 attaining this object, i. e., the corporate funds and property. 
 Roughly speaking, the general result of these relations is that 
 the corporate funds become a so-called trust fund, set apart 
 for the attainment of the object of incorporation." 
 "The general outline is this: The state has the power or 
 right to enforce the application of these funds to the objects 
 of incorporation, at least, so far as the public is interested in 
 their attainment; the shareholders have the right to apply 
 these funds to these objects ; and the creditors of the corpora- 
 tion have the right to prevent the diversion of these funds 
 from the objects of incorporation to the injury of creditors. 
 The result of the respective rights of 'these different classes of 
 persons is that corporate property becomes a fund set apart 
 for the attainment of certain purposes from which it can not 
 be diverted without the consent of all whose legally protected 
 interests would be injured by such diversion." Taylor Pri- 
 vate Corporations, 32-34.
 
 205 THE CAPITAL STOCK ?6l 
 
 Sec. 205. Right to create a capital stock. 
 COOKE v. MARSHALL. 1 
 
 1899. IN THE SUPREME COURT OF PENNSYLVANIA. 191 Pa. St. 
 
 Re P- 3 I 5~3 2 3- 
 
 [Quo tuarranto to determine right to office of secretary of the Char- 
 tiers Cemetery Company. This company was created by act of 1862, 
 with the usual corporate powers nothing being said as to power to 
 have a capital stock. The corporators organized, passed a resolution 
 establishing the cemetery on the ground designated, "and for this 
 purpose" fixed the capital stock at "$8,ooo, divided into 160 shares of 
 the par value of $50 each." This was subscribed, and the corpora- 
 tion proceeded to business. Afterward increases were made, first to 
 $50,000, and later to $150,000. In 1893, at an informal meeting of 
 some of the shareholders, the board was increased from five to seven 
 members, and Cooke was elected secretary; to these acts Marshall 
 protested, and later he, in connection with other members, organized 
 a new board, wholly ignoring all idea of corporate stock, elected "as- 
 sociates" and officers, and Marshall has ever since claimed to be sec- 
 retary, and obtained possession of the seal and books of the company. 
 The stock board, however, continued to control the management of 
 the cemetery. Cooke brought the suit and obtained judgment below. 
 Marshall appealed.] 
 
 GREEN, J. * * * The question then is, was the original creation 
 and issue of stock lawful, and if so, were the subsequent increases law- 
 ful ? The issue was made for the purpose of performing the original 
 duty to establish a cemetery. It was necessary to acquire land in order 
 to create the cemetery, and the corporators adopted the method of ob- 
 taining the land by issuing stock in payment for it. It is not denied 
 that the corporation might have borrowed money for this purpose, 
 and made a mortgage on the property to secure the payment of it, 
 although no such power was expressly conferred by the charter. On 
 the question whether capital stock might be issued for the same pur- 
 pose where the charter has not specially authorized a capital stock, 
 not a single authority is cited for or against in the paper-books of 
 either party. There is no doubt that this particular corporation did 
 possess full corporate powers, and there is also no doubt that it was 
 not only authorized but expressly enjoined to create a cemetery of not 
 less than thirty acres in extent, and after that to lay it out into lots and 
 plots, and roads and walks, and to do various other things neces- 
 sary to its proper development as a cemetery. No method of raising 
 money to acquire the land and do these various things was provided in 
 the charter. The ordinary method in which such things are done is 
 by the creation and issue of capital stock, and it may be argued with 
 apparent reason that it is a necessary implication from the grant of 
 
 1 Arguments and part of opinion omitted. Statement abridged.
 
 762 COOKE V. MARSHALL. 
 
 corporate existence and powers that a right to issue stock is conferred. 
 * * * In this case, however, the charter confers no power to issue 
 any stock, and for such a company as this no such power is needed. It is 
 remarkable that it is so difficult to find either text-book discussion of 
 this subject or adjudicated cases. Whether a corporation without capital 
 provided for in its charter may create and issue capital stock is certainly 
 a fundamental and radical matter in corporation law. In i Cook on 
 Stock, etc., 279, it is said, "The capital stock of all incorporated 
 companies is generally fixed by the charters which give them an exist- 
 ence." Section 281, "In the absence of express authority from the 
 state a corporation has no power whatsoever to increase or reduce the 
 amount of its stock, and any attempt on the part of the corporation, 
 either by the corporate officers or by the stockholders, to do so is 
 wholly illegal and void. * * * Where the attempted increase or 
 reduction of the stock is not authorized by the charter, not even the 
 unanimous assent and agreement of all the parties concerned will le- 
 galize it." * * * 
 
 (Citing Droitwich P. S. Co. v. Curzon, L. R. 3 Ex. 35 ; x Scovill v. 
 Thayer, 105 U. S. 143; Sutherland v. Olcott, 95 N. Y. 93 ; i Mora- 
 wetz, 434, to the same effect.) 
 
 It follows, hence, that the increase of stock being void, all the elec- 
 tions held thereunder since that time are void and confer no authority 
 upon the persons elected. 
 
 This ruling would dispose of the present contention, but it is per- 
 haps desirable that the original creation of the $8,000 of capital stock 
 should be considered. It is extremely difficult to understand under 
 the foregoing decisions how any issue of capital stock by this com- 
 pany can be regarded as valid. The company was chartered to es- 
 tablish a cemetery. While a cemetery company is not necessarily a 
 religious or charitable corporation, yet in many instances it is of that 
 character, and perhaps as a rule this is so; yet they may be established 
 as merely private enterprises and carried on for profit. But, in either 
 case, if the charter confers no right or power to create capital stock, 
 it is difficult to understand how any right to create and issue such 
 stock has any existence. If capital stock may neither be increased 
 nor diminished without an express power to that effect, how can any 
 stock be created or issued when there is no capital stock fixed by the 
 charter, and no power is given to create it ? In i Cook on Corpora- 
 tions, 8, the following definition of capital stock is given: "Capital 
 stock is the sum fixed by the corporate charter as the amount paid in, 
 or to be paid in, by the stockholders for the prosecution of the 
 business of the corporation, and for the benefit of corporate cred- 
 itors." * * * 
 
 (Citing Barry v. Merchants' Exchange, i Sandf. Ch. 280 ; 2 Amer- 
 ican Pig Iron S. Co. v. State Bd., etc., 56 N. J. L. 389; Salem Mill 
 Dam Co. v. Ropes, 6 Pick. 23.) 
 
 Now, if the doctrine of these cases (and there are many more of 
 them) be true, and the act of increasing or decreasing the capital 
 
 1 Infra, p. 764. z Infra, p. 766.
 
 2O6 THE CAPITAL STOCK. 763 
 
 stock of a corporation without specific charter power to do so is a 
 void act because it is ultra vires, how can it be true that a corpora- 
 tion may issue any capital stock without having specific legislative 
 authority to do so? We can not see. If it is ultra vires to increase, 
 it is ultra vires to issue any stock where no power to do so is con- 
 ferred by the charter. The power to create corporate capital stock 
 is a legislative function, and, in any given case, in order that such 
 stock may have a legal existence, the function must be exercised. 
 Reversed. 
 
 Sec. 206. Power to increase the capital stock. 
 See RAILWAY CO. v. ALLERTON, 85 U. S. (18 Wall.) 233, supra, p. 442. 
 
 Note. See, also: 1827, Salem Mill D. Corp. v. Ropes, 23 Mass. (6 Pick.) 
 23; 1854, People v. Parker Vein Coal Co., 10 How. Pr. (N. Y.) 543; 1856, 
 Mechanics' Bank v. New York, etc., R., 13 N. Y. 599; 1856, Ferris v. Ludlow, 
 7 Ind. 517; 1865, New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30; 1878, 
 Moses v. Ocoee Bank, 1 Lea (Tenn.) 398; 1881, Scovill v. Thayer, 105 U. S.. 
 143; 1882, Grangers', etc., Ins. Co. v. Kamper, 73 Ala. 325; 1884, Sutherland 
 v. Oluott, 95 N. Y. 93; 1889, Cartwright v. Dickinson, 88 Tenn. 476; 1891, 
 Jones v. Railroad Co., 67 N. H. 119, 234; 1895, Einstein v. Rochester Gas, 
 etc., Co., 146 N. Y. 46; 1897, Peck v. Elliott, 47 U. Si App. 605, 79 Fed. Rep. 
 10, 24 C. C. A. 425, 38 L. R. A. 616, and note. 
 
 But it seems that if the charter or articles of association provides that the 
 stock may be fixed bv the members, it may be changed from time to time by 
 the members. See, 1897, Peck v. Elliott, 47 U. S. App. 605, 38 L. R. A. 616. 
 
 Overissued shares are void, even in the hands of bona fide, holders: 1854, 
 People v. Parker Vein Coal Co., 10 How. Pr. (N. Y.) 543; 1865, N. Y. & N. 
 H. R. v. Schnyler, 34 N. Y.30; 1867, Bruff v. Mali, 36 N. Y. 200; 1868, Sewell's 
 Case, L. R. 3 Ch. App. 131, 138; 1882, People's Bank v. Kurtz, 99 Pa. St. 344; 
 1893, Hayden v. Charter Oak D. P., 63 Conn. 142. 
 
 But the corporation is liable to an innocent holder for the tort of the officer, 
 if he was clothed with the general power to issue stock for the corporation: 
 1842, Daly v. Thompson, 10 M. & W. 309; 1857, Mandlebaum v. North Am. 
 Min. Co., 4 Mich. 465; 1865, New York & N. H. R. v. Schuyler, 34 N. Y. 30, 
 49, 60; 1867, Bruff v. Mali, 36 N. Y. 200; 1868, Re Bahia, etc., R. Co., L. R. 
 3 Q. B. 584, 595; 1873, Tome v. Parkersburg Br. R., 39 Md. 36; 1882, Peoples' 
 Bank v. Kurtz, 99 Pa. St. 344; 1889, Allen v. South Boston R., 150 Mass. 200; 
 1892, Ryder v. Bushwick R., 134 N. Y. 83; 1893, Hayden v. Charter Oak Driv. 
 Park, 68 Conn. 142; 1893, Fifth Avenue Bank v. Forty-Second St., etc., R. Co., 
 137 N. Y. 231 ; 1897, Cincinnati, etc., R. v. Citizens' Nat'l Bank, 56 Ohio St. 
 351, 47 N. E. Rep. 249, 43 L. R. A. 777. 
 
 Unless the stock is taken from such officer, as a part of a transaction in 
 which he is personally interested at the time: 1884, Moores v. Citizens' Na- 
 tional Bank, HI U. S. 156; 1890, Farrington v. South Boston R., 150 Mass. 
 406; 1890, Wilson v. Metropolitan El. R., 120 N. Y. 145; 1891, Hill v. .Tewett 
 Pub. Co., 154 Mass. 172; 1893, Manhattan L. Ins. Co. v. Forty-Second, etc., 
 R., 139 N. Y. 146.
 
 764 DROITWICH SALT CO. V. CURZON. 2O/ 
 
 Sec. 207. Power to decrease the capital stock. 
 
 DROITWICH SALT CO. v. CURZON. 1 
 
 1867. IN THE ENGLISH COURT OF EXCHEQUER. L. R. 3 Exch. 
 
 35-43- 
 
 KELLY, C. B. * * * The plaintiffs are a company which were in 
 existence long before the passing of the companies act, 1862. At the 
 time of the passing of that act, or rather a short time afterward, when 
 they called on the registrar to register them under the act, their nom- 
 inal capital was 250,0007. But this capital was then farther stated to 
 be "in 10,000 shares of 257. each, all taken, 257. having been paid on the 
 first 5 ,000 shares, 1 5/. on the next i ,000 shares, and 57. on the remaining 
 4,000 shares;" and it was also stated that the last 5,000 shares were 
 issued at 257. each "for the sums above mentioned." This amounts 
 in substance to a declaration that the actual amount of capital had 
 been reduced from 250,0007. to i6o,ooo/., thus: there had been anew 
 issue of 1,000 shares on the original capital of 1 25.0007. at i$L a 
 share, and two subsequent issues of 4,000 shares at 5/. each. The 
 aggregate amount subscribed was, therefore, i6o,ooo/., and this was 
 the real capital of the company, although their nominal capital 
 amounted to 250,0007. It is said that the words in the requisition for 
 registration, "the last 5,000 shares were issued at 257. each, for the 
 sums above mentioned," amount to a statement that these shares were 
 to be considered as fully paid up. Probably this is so, and at all 
 events the registrar entered the company on the register, whether by 
 inadvertence or otherwise, under the act of 1862, in the manner 
 above described. Subsequently he was called upon to register a 
 further change in the amount of capital. Resolutions were passed 
 reducing the capital to ioo,ooo7. in 10,000 fully paid-up shares of io7. 
 each. These resolutions were sent to the registrar and were recorded 
 by him. In fact, he ought to have refused to record them. He did, 
 however, perhaps per incuriam, enter the reduction of capital. Then 
 he was called upon to register an increase of this reduced capital from 
 ioo,ooo7. to 125,0007. Notice was duly given to him of the proposed 
 increase, but he refused to record the notice or the amount of the 
 increase. Had he done so, then taking all the entries together as rep- 
 resenting the constitution and condition of the company, the entry of 
 125,0007. would have amounted, in fact, to an entry, not of an increase, 
 but of a reduction of the nominal capital of 250,0007., as originally 
 registered, to 125,0007. The question, therefore, really is, whether 
 the company were entitled to reduce their nominal capital and to call 
 upon the registrar to enter on the register a minute of that reduction ? 
 
 Now, in the case of a company formed under the act of 1862, and 
 
 1 Facts sufficiently stated in the opinion, part of which is omitted. Also 
 arguments, and concurring opinions of Bramwell, Channel! and Piggot, 
 Barons, are omitted.
 
 207 THE CAPITAL STOCK. 765 
 
 also in the case of a company already formed, which afterwards is 
 registered under the act, it is imperative on the registrar to enter on 
 the register the amount of nominal capital. With regard to compa- 
 nies limited by shares formed under the act, section 8 enacts that the 
 memorandum of association shall, among other things, contain "the 
 amount of capital with which the company proposes to be registered, 
 divided, into shares of a certain fixed amount," and before registration 
 the registrar (who has to give a certificate which is to be conclusive 
 evidence that all the requisites of the act in respect of registration 
 have been complied with) must satisfy himself that the matter to be 
 registered the memorandum of association contains all the elements 
 prescribed by the different clauses of section 8, and no alteration in 
 any one of these elements can be made unless expressly authorized 
 (section 12). The law is the same where an existing company ap- 
 plies for registration. Section 183 provides that, previous to registra- 
 tion, a statement of "the nominal capital of the company, and the 
 number of shares into which it is divided," is to be delivered to the 
 registrar, and his certificate of incorporation is to be conclusive evi- 
 dence (section 192) that all the requisitions in the act contained in 
 respect of registration have been complied with. It is quite clear, 
 therefore, that the nominal amount of capital, and the number of 
 shares into which it is divided, must be stated to the registrar, by 
 whom that amount must then be entered on the register. 
 
 We next have to consider whether an existing company, when once 
 registered, have any power under the act of 1862 to give effect to a 
 provision contained in their original deed of settlement to reduce their 
 capital. Now, there is an express power given to increase capital 
 (section 12), but nowhere can there be found an express provision 
 pointing to a power to reduce, after once the nominal amount of cap- 
 ital has been registered. Is it then, the effect of the sixth clause of 
 section 196, to enable a company existing before the act, and register- 
 ing under it, to exercise the power of reducing their capital; or rather, 
 is it the effect of that article to legalize the continuance of a power 
 already possessed under the original deed of settlement or articles of 
 association ? The language of the sixth clause is as follows (his lord- 
 ship read the clause), and as far as that language goes it is not con- 
 tended that there is anything in it to render lawful a reduction of 
 capital. But there follows a proviso in these terms: "Nothing herein 
 contained shall derogate from any power of altering its constitution 
 or regulations which may be vested in any company registering under 
 this act in pursuance of this part thereof by virtue of any act of par- 
 liament, deed of settlement, etc., constituting or regulating the com- 
 pany." Now, in construing this proviso, I take it that before the 
 word "power" we ought to introduce the word "lawful," and that 
 the proviso means that nothing in the act is to derogate from any 
 "lawful power" before possessed by any company. 
 
 Is this power of reduction, then, a lawful power, a power which 
 could be exercised consistently with justice, and with the objects of the 
 act? If it applies, we must remember, to a company where the whole
 
 766 BARRY v. MERCHANTS' EXCHANGE co. 208 
 
 amount of the shares has been paid up, there is no reason why it 
 should not apply to a company where a portion only of the nominal 
 amount registered has been paid up, and the shareholders are liable 
 to contribute for the remainder. Now, it is impossible to contend that 
 a company registered with a nominal capital of 250, ooo/.. made up of 
 25/. shares, of which say only i^l. or 2O/. is paid, should have power 
 to enforce the registrar to register resolutions reducing their capital to 
 the amount actually paid up. If such a proceeding were permitted, 
 the shareholders' liability /would be limited, not, as was intended, by 
 the amount of their shares, but by the amount of the already paid-up 
 portion of their shares. Justice, the language of the act and the inten- 
 tion of the legislature alike forbid an interpretation which would lead to 
 such a result. I, therefore, think that the nominal capital of this com- 
 pany having been registered at 250, ooo/., it was not competent to the 
 plaintiffs to reduce that capital. The registrar should not have regis- 
 tered the resolutions making that reduction, and when he was called 
 on to make a further entry which would have affirmed the previous 
 improper reduction of capital, he was justified in declining to make 
 it. The defendant, therefore, is entitled to our judgment. 
 
 Note. See, also: 1856, Ferris v. Ludlow, 7 Ind. 517; 1896, Niagara Shoe 
 Co. v. Tobey, 71 111. App. 250; 1897, In re Colmer, 1 Ch. 524; 1897, Shoe- 
 maker v. Washburn L, Co., 97 Wis. 585; 1897, Peck v. Elliott, 47 U. S. App. 
 605, 38 L. R. A. 616; 1898, In re National Dwellings' Soc., 78 L. T. (N. S.) 144. 
 
 Sec. 208. Nature, function and purpose of capital stock. 
 BARRY v. MERCHANTS' EXCHANGE COMPANY. 1 
 
 1844. IN THE COURT OF CHANCERY OF NEW YORK, i Sandford's 
 Chancery (N. Y.) Rep. 280-318. 
 
 [The Merchants' Exchange was incorporated in 1823, with a capi- 
 tal stock not to exceed $1,000,000; it was authorized to purchase, 
 hold and convey so much real estate and to erect such buildings as 
 the body corporate might deem necessary or proper for the purpose, 
 and receive the rents- and profits thereof, and divide the same amongst 
 the stockholders at such times as the company might deem expedient; 
 power to make by-laws was given, and the act was to be favorably 
 construed for all beneficial purposes ; $230,000 of stock was subscribed 
 and paid and the exchange built at a cost, including the lot, of 
 about $250,000. The building was destroyed in 1835 by fire ; and it 
 was determined to build a new and much larger one ; subscriptions 
 were called for the rest of the stock; this was soon taken, and the 
 amount received therefrom invested in more land ; then it was deter- 
 mined to borrow money in all $700,000 by the issue of bonds to 
 that extent, secured by mortgage upon the property ; this was done and 
 the property conveyed by deed of trust to K., to hold for the bond- 
 
 1 Statement greatly abridged ; arguments and much of opinion omitted.
 
 208 THE CAPITAL STOCK. 767 
 
 holders. The company made default in payment of its debts and 
 its property was taken possession by K. Barry had performed work 
 in the construction of the new building to the amount of about $io,ooo 
 of which $7,400 had been paid in cash, $1,000 in bonds, and $1,600 
 remained unpaid ; for this he sued and obtained judgment, which could 
 not be paid. He brought his bill, alleging that the company had no 
 right to issue bonds, and asking that the trustees' title be set aside, the 
 bonds canceled, and a receiver be appointed, etc.] 
 
 SANDFORD, V. C. * * * It was argued that the amount fixed 
 as the capital stock of the corporation was an absolute restriction 
 upon the amount and value of the property, both real and personal, 
 which they may hold permanently. 
 
 Some modifications of this position at once forced themselves upon 
 the attention of the counsel. If the capital were the limit of the prop- 
 erty of the corporation they could make no dividends or profits, for 
 those are beyond the capital. Again, in the ever-varying and fluctu- 
 ating values of all descriptions of property, a corporation that was 
 within its capital last year, may, without a single new purchase or 
 expenditure, be worth this year twenty per cent, beyond its capital by 
 the increased value of the same property. 
 
 Hence the learned counsel were driven to rest their point upon a 
 designedly permanent increase of property beyond the capital of the 
 company. Still the rule encountered difficulties. 
 
 The object of corporators in all moneyed and business corporations 
 is to make greater profits than they can command by the separate use 
 of the same amount of capital. They put in their money, the capital 
 stock, for the very purpose of having it increase in vahie, and more 
 rapidly than in private adventures. And we have seen that unless 
 positively enjoined by their charters, there is nothing to require them 
 to divide the increase annually, or in any given time. 
 
 It was argued that in this particular case the design was one not 
 referring to profits for ultimate division, but it was a permanent and 
 solid investment of profits which never could be divided, and which 
 became an essential and integral portion of the real capital of the 
 company. That the exchange was an unit, indivisible, and composed 
 of the capital stock and nearly as much more ; the latter being added 
 in anticipation of earnings or profits, and the whole incapable of par- 
 .tition or division. 
 
 On this subject of the capital stock of a corporation, the elementary 
 treatises are comparatively barren. 
 
 It is the aggregate amount of the funds of the corporators, which 
 are combined together under a charter for the attainment of some 
 common object of public convenience or private utility. This amount 
 is usually Jixed in the act of incorporation, although -we have seen in 
 the statutes of 1823. one exception to this practice. It istfnis limited, 
 in reference to the convenience of the intended corporators, and for 
 the information and security of the public at large. To the corpo- 
 rators, it prescribes the amount and subdivisions of their respective 
 contributions to the common fund; the voice ivhich each shall have in
 
 768 BARRY v. MERCHANTS' EXCHANGE co. 208 
 
 its control and management ; and the apportionment of the profits of 
 the enterprise. To the community, it announces the extent of the 
 means contributed and forming the basis of the dealings of the cor- 
 porate body, and enables every man to judge of its ability to meet its 
 engagements and perform -what it undertakes. And when, as in 
 most instances, the statute requires the stock to be paid in before the 
 corporation can transact business, security to those contracting with it 
 is thereby superadded to the information of its resources. These ob- 
 jects, for the public benefit, are sometimes defeated by fraud .and de- 
 ception, but they are such as the legislature have in view in limiting 
 the amount of capital stock, and requiring a specified sum or propor- 
 tion to be paid in. 
 
 One further consideration dictates the amount thus fixed. This is 
 the probable and reasonable extent of the means requisite to the ac- 
 complishment of the end proposed, qualified in many cases by the 
 unwillingness of the legislature to create these artificial beings with 
 an undue amount of capital. 
 
 As no certain rule can be devised by which to estimate the means 
 necessary to effect all the purposes of a contemplated incorporation, 
 the amount of the capital in each case must be fixed in reference to 
 the considerations which I have just enumerated, without any inten- 
 tion or expectation in ordinary cases .of limiting to that sum the aggre- 
 gate property which the corporation, when- its capital is paid in and its 
 operations commenced, shall from time to time possess or own. This 
 is peculiarly true of the numerous incorporations which have sprung 
 into being under the magic influence of the enterprise and ingenuity 
 of our citizens, and in which, from their boldness or novelty, it was 
 impracticable for human foresight to calculate the requisite means. 
 
 It is true that in one instance the authors of a most excellent treatise 
 on corporations have spoken of capital stock, and the amount of prop- 
 erty which they shall hold, as if they were synonymous terms; but 
 they have said on a previous page, that every corporation aggregate 
 has incidentally at common law a right to take, hold and transmit in 
 succession, property real and personal to an unlimited extent or 
 amount, i Angell & Ames on Corp. 87, ch. 5, i ; i Kyd on Corp. 
 76, 78; i Black. Comm. 475; 2 Kent's Comm. 277, 2d ed., and a 
 host of authorities are to the same effect. Angell & Ames also add 
 that "the statutes of mortmain make no mention of personal property, 
 and hence in England the power of corporations aggregate to take 
 such property remains in general unlimited, unless restrained by the 
 charters or acts of parliament establishing them." Treatise on Corp., 
 90, 92. And see i Kyd on Coi-p. 104. 
 
 The capital stock of a corporation is, like that of a co-partnership 
 or joint stock company, the amount -which the partners or associates 
 put in as their stake in the concern. To this they add upon the credit 
 of the company, from the means and resources of others, to such 
 extent as their mvn przidence or the confidence of such other persons 
 ivill permit. Siich additions create a debt; they do not form capital. 
 And if successful in their career, the surplus over and above their
 
 208 THE CAPITAL STOCK. 769 
 
 capital and debts becomes profits, and is either divided among the 
 partners and associates, or used still farther to extend their opera- 
 tions. 
 
 The proposition that a corporation is limited, even in its permanent 
 ownership of property, to the amount fixed as its capital, is entirely 
 new, and has not the sanction of authority or reason. The custom of 
 retaining the profits, which I have before mentioned, has been long 
 continued, and has worked in many of our corporations, and espe- 
 cially in banking institutions, an increase of their solid property and 
 estate, as permanent as any that has been inferred in this case. Not 
 that such increase has in those instances been so invested and mingled 
 with the fruits of the original capital as to become indivisible there- 
 from ; but the increase has in many of the instances been as fixed and 
 permanent as the capital itself, and with no purpose or probability of 
 its being returned to the stockholders until the concern should be 
 wound up voluntarily, or by the expiration of the charters. Some 
 further illustration of this question will occur in connection with the 
 discussion of the power of borrowing after the payment of the 
 capital. 
 
 Second. The second theory of the counsel for the complainant 
 was, that the power of borrowing money was limited to the extent 
 of the capital of the company ; and when that capital was fully 
 paid, the power ceased, except for mere temporary objects, and for 
 short periods. 
 
 They therefore had no right to contract a permanent debt like these 
 mortgages. That if they did not expect to pay the mortgages, it is 
 still worse, because by the means used they created, or attempted to 
 create, a public stock or funded debt. 
 
 It was urged that on the latter hypothesis they were exceeding the 
 charter, because the direct consequence is, that they build at the ex- 
 pense of two millions, and out of the rents pay an interest to the bond- 
 holders, and a dividend to the stockholders ; and the one to continue 
 as long as the other, being to all intents a capital of two millions. 
 
 This argument is specious, for if the building be worth the two mill- 
 ions, which it is assumed to have cost, and the company owes one 
 million, their clear property is but one million after all. Then as to the 
 funded debt or stock created and secured by these mortgages. The fifth 
 section of the act of incorporation was referred to as prohibiting this 
 mode of effecting a loan. That section declares that the act shall not 
 be construed to authorize the dealing or trading in, or the purchase or 
 sale of any stock or funded debt created, or to be created, under any 
 law of the United States, or of any particular state. 
 
 If the resemblance between these bonds and such stock or funded 
 debt were complete in all things, this section would have no applica- 
 tion to the borrowing of money upon their issue. But, in truth, the 
 resemblance is very faint. The bonds were printed or engraved, and 
 had coupons attached for convenience in the collection of interest. 
 There the likeness ceased. These bonds were sealed obligations of 
 
 49 Wn,. CASES.
 
 770 BARRY v. MERCHANTS' EXCHANGE co. 208 
 
 the company, bonds, in the technical sense of the word, and secured 
 not by the public faith, or the mere corporate liability, but by mort- 
 gages on real estate. 
 
 But it was contended that the unrestricted power of borrowing, 
 which the company claims for effecting the purposes of its charter, 
 virtually confers upon the corporation unlimited power. That the 
 purposes of the charter would, in this instance at least, be no restraint, 
 because they could embrace accommodations for every description of 
 commercial business, and the extent of their credit would be equally 
 ineffectual, for there would be no limit to that, except in the prudence 
 of the lender, and finally, that no such extravagant authority was 
 granted to this corporation, expressly or by implication, and it is con- 
 trary to the spirit and policy of our laws and institutions. 
 
 This whole argument is, in my judgment, unsound. The danger 
 of inordinate accumulation of property and consequent overshadow- 
 ing power is wholly fallacious. The whole extent of the corporate 
 cred:*; is, in truth, measured and controlled by its capital. Every ad- 
 dition to its means beyond its paid-up capital (leaving profits out of 
 view) must be by gift or contract, and if by contract, a debt ensues. 
 If a corporation with a million of capital succeeds in running into 
 debt two millions it has no more solid property, and is intrinsically worth 
 no more than before, unless the property obtained on credit is worth 
 more than it cost, and then the increase of property is only such ex- 
 cess of value. And if worth less than cost, then the company has by 
 the operation sunk a part of its capital. 
 
 All experience shows that the financial management of corporations 
 is, in general, less judicious and safe than that of individuals. Hence 
 losses are likely to ensue from expansions upon credit ; and the far- 
 ther such credit is pushed by any corporation, the greater the danger 
 that such losses will impair and finally consume its capital. The 
 lenders of money are usually sagacious enough to protect their inter- 
 ests when dealing with corporations as well as with individuals ; and 
 few would lend money to a company which already owed debts 
 greatly exceeding its whole capital stock, however flattering in ap- 
 pearance the investment might be. The laws of trade have placed 
 an impassable barrier to the power of corporate borrowing, in the ten- 
 dency of such institutions to make an improvident use of exuberant 
 means, and in the caution and prudence of capitalists. It is utterly 
 impossible for a corporation with a known limited capital to accumu- 
 late by means of its credit the gigantic property and power which 
 the imagination of the counsel portrayed. * * * 
 
 In this case, then, I am satisfied that the Merchants' Exchange 
 Company were authorized by law to borrow money for the comple- 
 tion of their building, to the extent adopted by them, and to secure its 
 repayment by their corporate obligations, and by mortgages on their 
 real estate. 
 
 I do not find that any limitation contained in their charter has been 
 thereby exceeded, nor that any condition annexed to the grant of their
 
 208 CAPITAL STOCK. 771 
 
 franchise has been broken, nor that they have failed to perform the 
 duties enjoined upon them by the law of their creation. * * * 
 Bill dismissed. 
 
 Note. Stock is generally used synonymously with "shares of stock" with us, 
 and indicates a definite proportional interest that the owner has in the manage- 
 ment, dividends and final distribution of the surplus assets of the corporation 
 upon dissolution. In England it seems that stock is a fund which can be 
 divided and held in irregular amounts, like the government stocks, which can 
 be bought in 99> sums, as well as any other sums, while a share, or de- 
 benture, is of a fixed amount, as 100, incapable of subdivision. Rapalje & 
 L. Law Dictionary, 1224. 
 
 Common stock, or shares, are such as entitle all the owners thereof to equal 
 (in proportion to number of shares owned) participation in the management 
 of the corporation, and, in the absence of any preference shares, to alike 
 equal portion of the profits and assets. The common shares quite frequently 
 have a preference in the management of the corporation, though not in the 
 profits. 
 
 Preferred stock, or shares, are such as entitle the owners thereof to some 
 preference in the distribution of the profits or assets of the corporation over 
 the owners of the common shares. There may be various classes of preferred, 
 such as first and second, etc., preferred, with different kinds of preferences as 
 the basis. But within each class the owners have equal rights in proportion 
 to their holdings. The preference may be either as to profits, or assets when 
 dissolved, or both. In the absence of special provisions, preferred share- 
 holders have the right to participate in the management, and are subject to 
 liabilities to the same extent as common shareholders. 
 
 Guaranteed Stock, in the United States, is generally given the same meaning 
 as preferred the words being used interchangeably and both meaning that 
 the "preferred" or "guaranteed" shareholders shall not only receive divi- 
 dends in preference to the common shareholders, each year there are profits 
 to divide, but also that they will be entitled to arrears of dividends for the 
 years there are no profits earned, whenever subsequent profits are sufficient 
 to pay such dividends. 1860, Bates v. Androscoggin, etc., R., 49 Maine 491 ; 
 1866, Taft v. Hartford, etc., R., 8 R. I. 310; 1875, Lockhart v. Van Alstyne, 
 31 Mich. 76; 1881, Boardman v. Lake S. & M. S. R., 84 N. Y. 157; 1882, El- 
 kins v. Camden, etc., R., 36 N. J. Eq. 233. And the rule seems to be the 
 same in England. 1857, Henry v. Great Northern R., 1 De G. & J. 606; 1875, 
 Webb v. Earle L. R., 20 Eq. Gas. 556. Of course it can be made non-cumulative 
 if so expressed. 1871, Bailey v. Hannibal, etc., R., 1 Dillon 174. And a few 
 cases hold it is non-cumulative, unless expressed to be cumulative. 1885, Bel- 
 fast, etc., R. v. Belfast, 77 Maine 445; 1887, Hazeltine v. Belfast, etc., R. Co., 
 79 Maine 411. The term, however, is also applied so as to entitle the guaran- 
 teed shareholder to payment of arrears of dividends out of the property of 
 the company, before dividing it up among common shareholders upon disso- 
 lution. It is also sometimes applied to indicate the liability for dividends 
 without regard to there being any earnings from which to pay such stock 
 then seems to be nothing but an interest-bearing loan. 
 
 Interest-bearing 1 stock. Some attempts have been made to issue stock 
 upon condition that all sums paid in upon it shall bear interest until the im- 
 provement is completed and profits earned out of which to pay dividends ; 
 such stock is designated interest-bearing stock. Since there are no earnings 
 out of which to pay dividends, it seems that the interest can come only out 
 of the capital, if it is to be paid before profits are earned, and would there- 
 fore, in effect, be a reduction of the capital to that extent, of which creditors 
 might complain ; when the interest is to be paid as it accrues, and before 
 there are earnings, such stock provisions are generally held to be void. 
 1854, Troy & B. R. Co. v. Tibbitts, 18 Barb. (N. Y.) 297, on 307; 1861, Mil- 
 ler v. Pitts. & C. R. Co., 40 Pa. St. 237, 80 Am. D. 570; 1867, Painesville <fe H. 
 R. Co. v. King, 17 Ohio St. 534; 1869, Pittsburgh & C. R. Co. v. Allegheny
 
 772 BARRY v. MERCHANTS' EXCHANGE co. 208 
 
 Co., 63 Pa. St. 126; 1887, Ohio College of Dental Surgery v. Rosenthal, 45 
 Ohio St. 183; 1892, Re Sharpe, L. R. 1 Ch. Div. 154. 
 
 But if the interest is not to be paid until there are earnings out of which to 
 pay, such provisions will be held valid, and if possible such construction 
 will be given to provisions of this kind: 1853, Wright v. Vt. & M. R. Co., 12 
 Cush. (Mass.) 68: 1857, Waterman v. T. & G. R. Co., 8 Gray (Mass.) 433; 
 1860, McLaughlin v. Det. & M. R. Co., 8 Mich. 100; 1860, Milwaukee & N. I. 
 R. Co. v. Field, 12 Wis. *340; 1863, Rutland & B. R. Co. v. Thrall, 35 Vt. 536; 
 1872, Richardson v. Vt. & M. R. Co., 44 Vt. 613. 
 
 Special stock. "This is a peculiar kind of stock, now distinctly provided 
 for by statute, but unknown to the general laws of the commonwealth until 
 1855. Its characteristics are, that it is limited in amount to two-fifths of the 
 actual capital ; it is subject to redemption by the corporation at par after a 
 fixed time, to be expressed in the certificates; the corporation is bound to pay 
 a fixed half-yearly sum or dividend upon it, as a debt ; the holders of it are in 
 no event liable for the debts of the corporation beyond their stock ; and the 
 issue of special stock makes all the general stockholders liable for all debts 
 and contracts of the corporation until the special stock is fully redeemed. 
 Statutes 1855, ch. 290; 1870, ch. 224, 25, 39, cl. 4; Pub. Stats., ch. 106, 42 r 
 61, cl. 3; Williams v. Parker, 136 Mass. 204, 207." Allen, J., in 1885, Amer- 
 ican Tube Works v. Boston M. Co., 139 Mass. 5, on 9 . See, also, 1886, Reed 
 v. Boston M. Co., 141 Mass. 454. This sort of stock seems to be confined to Mas- 
 sachusetts, although other states have recognized redeemable stock. See 
 1875, Totten v. Tison, 54 Ga. 139; 1879, Culver v. Reno Real Estate Co., 91 
 Pa. St. 367. 
 
 For a valuable note upon the subject of Preferred, Guaranteed, Interest- Bear- 
 ing, and Special Stock, see 27 L. R. A. 136. 
 
 Treasury stock. This is a term used to designate that part of the authorized 
 stock left (after the required statutory amount for commencing business has 
 been subscribed) in the possession of the corporation to be issued in the future 
 by sale by the corporation or upon further subscription ; it is also applied to 
 the stock that has once been issued, but surrendered or forfeited to the corpo- 
 ration, and which may be reissued. See, 1890, Ailing v. Wenzel, 133 111. 264, on 
 269. When the holding of such stock by the corporation in this way is legal, it is 
 not merged, but lifeless ; it can not be voted, nor draw dividends ; but may 
 be sold at the face or the market value. See 1 Cook Corporations, 314, and 
 cases cited. 
 
 Deferred Stock, or bonds, are those upon which payment of dividends or 
 interest is expressly postponed until some other class of owners of stock, 
 bonds or other obligations are paid. 1 Cook Corp., 14, 762. 
 
 Founders' shares are such as are issued to the promoters or founders of 
 the corporation, and which entitle the holders to all the profits after certain 
 fixed maximum dividends are paid to the other shareholders ; though deferred 
 until the ordinary dividends are paid to the other shareholders, they some- 
 times become enormously valuable. For the usual provisions of such, see 1 
 Cook Corp., 14, pp. 52, 53, giving forms, and citing, 1893, Re MacDonald, etc., 
 Co., 69 L. T. R. 567; 1895, Re London, etc., Corp., 73 L. T. R. 280; 1896, Re 
 New Transvaal Co., 75 L. T. R. 272; 1897, Re London, etc., Ltd., 77 L. T. R. 
 146. 
 
 Debenture stock does not mean shares of stock, but is the English form of 
 bond, evidenced generally by a certificate representing a portion of a lump 
 debt, which may or may not be secured by mortgage. A similar security is 
 issued in this country sometimes by a corporation giving a bondholder a cer- 
 tificate entitling him alone to a certain sum with interest on exchange for 
 coupon bonds delivered to the company like the United States government 
 registered bond. For further descriptions and forms see 1 Cook Corp., 14 
 and 777. 
 
 Scrip, is a certificate that the owner is, or will be, upon the performance of 
 some condition, entitled to a share of something, as land, stock or other prop- 
 erty. In England it certifies that the holder will be entitled to certain snares 
 of stock when unpaid installments are paid. 1 Cook Corp., 14, citing, ISTfi,.
 
 209 CAPITAL STOCK. 773 
 
 Goodwin v. Robarts, L. R. 1 App. Gas. 476. A form of stock scrip is given 
 in full in, 1865, Brown et al. v. Lehigh Coal and Navigation Co., 49 Pa. St. 
 270, on p. 272 ; a form of scrip dividend issued by the New York Central and 
 Hudson R. Co. is given in full in, 1874, Baily v. Railroad Company, 89 U. S. 
 (22 Wall.) 604, on 608. See, also, 1884, Gordon v. Richmond, etc., R. Co., 78 
 Va. 501, on 506. For a discussion of the natureof landscrip see, 1892, Rogers, 
 etc., v. N. Y. & T. Land Co., 134 N. Y. 197. See, also, 1 Cook Corp., 535, and 
 Angell and Ames Corp., ch. vi., Proprietors of Common and Undivided 
 Lands. 
 
 Watered stock, is stock which upon its face purports to have been paid for 
 at its full face value, but which, in fact, has been issued without the corpora- 
 tion receiving, or having the right to demand, the full face value either in 
 money, property or service. 
 
 Spurious or overissued stock, is such as is issued in excess of the amount 
 authorized. Such stock is void. See note p. 763. 
 
 Sec. 209. Same. 
 
 COMMERCIAL FIRE INSURANCE CO. v. BOARD OF REVENUE. 1 
 
 1892. IN THE SUPREME COURT OF ALABAMA. 99 Ala. Rep. 1-12, 
 42 Am. St. Rep. 17. 
 
 [Proceeding by the insurance company to be released from taxation 
 upon $51,000 worth of stock of the Montgomery Bank owned by it. 
 The law under which plaintiff was organized authorized insurance 
 companies "to invest their money in real and personal property, stocks 
 or choses in action and to sell the same." The tax law provided for 
 a tax upon the capital stock of corporations, except such portions as 
 may be invested in property which is otherwise taxed as property, but 
 when such corporation shall pay taxes on its shares, or the same is 
 paid by shareholders, such corporation shall pay taxes only on its real 
 and personal property. The insurance company claimed that $51,000 
 of its capital stock was invested in that much of the capital stock of 
 the bank, and the bank had already paid the taxes upon this sum. 
 The lower courts decided against this view, and this is the error as- 
 signed.] 
 
 STONE, C. J. * * * What is capital stock of corporations, and 
 why are they required to have a capital stock paid in ? 
 
 '-'Capital stock is the sum fixed by the corporate charter as the 
 amount paid in, or to be paid in by the stockholders , for the prosecu- 
 tion of the business of the corporation, and for the benefit of cor- 
 porate creditors. The capital stock is to be clearly distinguished 
 from the amount of property possessed by the corporation. 
 At common law the capital stock does not vary, but remains fixed, 
 although the actual property of the corporation may fiuctuate -widely 
 in value, and may be diminished by losses or increased by gains.*' - 
 Cook on Stock and Stockholders, 3. 
 
 "A stockholder has no legal title to the property or profits of the 
 corporation until a dividend is declared or a division made on the dis- 
 solution of the corporation." Ib., 40. 
 
 1 Statement abridged ; arguments and much of opinion omitted.
 
 774 COMMERCIAL FIRE INS. CO. V. BOARD OF REVENUE. 2O9 
 
 "A stockholder in an insurance company has the same rights that a 
 stockholder in any other corporation has." Ib., \a. 
 
 "A share of stock may be defined as a right which its owner has 
 in the management, profits and ultimate assets of the corporation. 
 By the court of appeals of New York it is said that 'the right which 
 a shareholder in a corporation has, by reason of his ownership of 
 shares, is a right to participate according to the amount of stock in 
 the surplus profits of the corporation on a division, and ultimately on 
 its dissolution, in the assets remaining after payment of its debts.' ' 
 Ib., 5- 
 
 In Neiler v. Kelly, 69 Pa. St. 403, Justice Sharswood said: "A 
 share of stock is an incorporeal, intangible thing. It is a right to a 
 certain proportion of the capital stock of a corporation never real- 
 ized except upon the dissolution and winding up of the corporation 
 with the right to receive, in the meantime, such profits as may be 
 made and declared in the shape of dividends." 
 
 (Citing 2 Morse on Banking, 66972 ; 2 Morawetz Corp., 787-9 ; 
 Wood v. Dummer, 3 Mason 308; Semple v. Glenn, 91 Ala. 245.) 
 
 The foregoing quotations are made with a view of presenting 
 clearly and fully the nature and object of capital stock in a corpora- 
 tion. As property it has peculiar attribtites. Collectively it is the 
 property of the corporation, while the ownership of the shares is in 
 the shareholders. Sale and disposition of the shares by the several 
 owners is free and untrammeled, save as the law or by-laws of the 
 corporation may have prescribed rules. Not so with the capital 
 stock. That is a security or pledge the law exacts as a condition on 
 which it grants the corporate franchise the right to incur liabili- 
 ties for the discharge of which no responsibility rests on any natiiral 
 person. It is the indispensable condition on which the law-making 
 power grants the franchise, because the law and public policy so de- 
 clare. And the capital stock is a trust fund; a trust for the benefit 
 and security of the corporation's creditors. The directory , or gov- 
 erning body of the corporation, are trustees, charged with the duty of 
 guarding the trust fund, and preserving it for the uses for which it 
 was placed in trust. The uses are, first, to meet and discharge any 
 liabilities and debts of the corporation which disaster may bring 
 upon it; and, second, to restore to the shareholders, when the corpo- 
 ration is wound up, whatever of the capital stock and accumulated 
 gains may remain on hand, after discharging the corporation's liabili- 
 ties to creditors. 
 
 It is not intended to be affirmed that the governing board of the 
 corporation is required to keep the capital stock unemployed in its 
 locked vaults. It should be utilized with a view of making it pro- 
 ductive in some line of investment or operation within the scope of its 
 corporate powers. There is this limitation to its authorized use. It 
 must be within the scope of the corporate powers, and must be done 
 with reference to the interest and success of the corporation whose 
 capital stock it is. When this is the case, there is fidelity in the exe- 
 cution of the trust.
 
 209 CAPITAL STOCK. 775 
 
 If this trust fund be misapplied to objects or uses outside of the 
 scope of the corporate powers, this is a breach of trust, and fastens a 
 personal liability on those who perpetrate the wrong, commensurate 
 with the injury, if any, caused by the misapplication. And persons 
 receiving the trust fund so misapplied, knowing it to be such, make 
 themselves trustees in invitum, and render themselves liable to the 
 corporation whose funds are thus misapplied, or to the creditors of 
 the corporation, for any diminution the trust fund may suffer in the 
 transaction. . * * * 
 
 What is meant by the language, "To invest their money in * * * 
 stocks or choses in action, and to sell the same?" Will it or can it 
 be contended that the authority to invest in stocks confers the power 
 to subscribe to the capital stock of another corporation in process of 
 organization ? And if it confers the authority to subscribe for and 
 become a stockholder in another corporation, in what description of 
 corporation may the insurance company become a stockholder? The 
 statute employs only the generic word stocks; and that word, if it 
 include bank shares, applies equally to shares in all private corpora- 
 tions. Can the insurance company invest its capital stock, and thus 
 become a stockholder in any and every description of private corpora- 
 tion, at the mere will and pleasure of its governing body? The vast 
 variety of corporations now in use and operation need not be referred 
 to, to show to what extreme results this interpretation would lead. 
 Railroads, telegraph lines, telephones, express companies, mining and 
 manufacturing enterprises, these are only a few of the numerous 
 subjects of incorporation under the law. Can an incorporated insur- 
 ance company under our statute subscribe for stock in the organiza- 
 tion of each, all, or any of the numerous corporations now so common 
 in human transactions? The statute has a different meaning. 
 
 Stocks shares in corporations have come to be, in a large degree, 
 subjects of commercial dealing and speculation. The newspapers 
 contain tables of the ruling prices of stocks, as their market value 
 fluctuates. These notices refer to the shares of stock in organized 
 corporations. Their sale neither increases nor diminishes the capital 
 stock in the corporation ; it neither adds to, nor takes from the corpo- 
 ration one dollar of its stock. It simply changes its ownership pro 
 tanto. The capital remains in the corporation intact, and the security 
 it furnishes, and is intended to furnish, the creditors of the corporation 
 remains unimpaired. 
 
 When we speak of capital stock of a corporation, we are under- 
 stood to refer to the sum subscribed in its organization. When we 
 speak of stock, we mean the certificates issued by the corporation to 
 the shareholders, which certificates, like titles to property, furnish the 
 evidence of ownership of the shares of stock. Capital stock is the 
 aggregate of money or other valuable thing contributed, or paid into 
 the common treasury as a condition of the exercise of corporate func- 
 tions, and a security for their faithful and prudent exercise. It is 
 the property of the corporation* charged with a trust, it is true; 
 but nevertheless, in its possession and under its control. The stock,
 
 7/6 COMMERCIAL FIRE INS. CO. V. BOARD OF REVENUE. 2O9 
 
 stocks or shares of stock do not belong to the corporation. They 
 belong to the shareholders and are exclusively under the individual 
 control of the several owners. The stocks which the statute author- 
 izes insurance companies to invest their money in can not mean capi- 
 tal stock owned and to be held by the corporation. This, -we have 
 seen, is a trust fund. It means the stock owned by stockholders, 
 usually evidenced by stock certificates. Stock, as a subject of com- 
 mercial dealing, is what the legislature meant in the statute we are 
 interpreting. The very connection in which the word is used in the 
 statute confirms this interpretation. " To invest their money in 
 * * * stocks or choses in action, and to sell the same," is the 
 language employed. There 5> not even a comma between the words 
 "stocks" and "choses in action," nor a shade of difference in the 
 powers conferred as to each. The power to invest in and to sell is 
 very appropriate language when applied to commercial dealings. It 
 is very inapt, if the intention was to confer authority to subscribe for 
 stock in the formation of another corporation. * * * 
 
 The tax is, by statute, levied on the capital stock of corporations. 
 In the corporation's petition to be relieved of a part of the tax thus 
 levied, it describes it as a tax on the capital stock. It avers "That 
 said capital stock is invested, * * * $51 ,000 thereof in the capital 
 stock of the Bank of Montgomery." The corporation owned its 
 capital stock, and, presumptively at least, did not own the shares of 
 its capital stock. Hence the propriety and reasonableness of the aver- 
 ment that it was so invested, and not shares in its capital stock, pre- 
 termitting, for the sake of argument, its want of corporate power to 
 invest its capital stock. The exact and specific case made in the peti- 
 tion is that the capital stock of one corporation the thing itself is 
 invested in the capital stock of another corporation. And, it may be 
 added, this averment was necessary to give the petition a semblance 
 of merit. Capital stock the insurance company's capital stock was 
 the subject of the tax, and in order to maintain the discount or deduc- 
 tion claimed, it was necessary to aver and show that that specific sub- 
 ject of taxation the capital stock or some portion of it, had been 
 "invested in property which is otherwise taxed as property." We 
 are thus confronted with the question, can one and the same sum of 
 money, at one and the same time, serve the purpose of capital stock 
 for two corporations ? 
 
 We have shown by the highest legal authority that the capital stock 
 of a corporation is a trust fund for the security and benefit of the cred- 
 itors of the corporation, and that the managing board fills the relation 
 of trustee for its preservation and administration. Corporations act- 
 ing within the scope of corporate powers , fix no liability on their 
 officers or on any one else. They charge only the corporation. Hence 
 the purpose and policy of requiring a capital stock as security and 
 indemnity of persons who become its creditors. The law-making 
 power confers on them privileges a franchise, a right to make con- 
 tracts in its artificial name without fastening a liability on any nat- 
 ural person and it exacts from them as a condition on which it
 
 209 CAPITAL STOCK. 777 
 
 grants this franchise, this privilege and power, that they place a 
 capital stock in safe pledge for the security of their creditors. And 
 this capital stock is a permanent investment, -with no power in the 
 shareholder to withdraw it until the corporation is wound up and all 
 its debts paid, and no power in the managing board to permit it to 
 be withdrawn at the expense of creditors. It is a trust fund in the 
 corporation's treasury, to be used only in its interest, and whatever 
 of profit or emolument it may yield belongs of right to the corpora- 
 tion, its creditors and shareholders. It must be kept within the cor- 
 poration and under its control to meet the ptirpose for which it was 
 required to be raised and paid in. It is not materially unlike any 
 other pledge that is placed as a guaranty of faithful performance of 
 debt or duty. It is a fixed pledge until the debt is paid, or the duty 
 performed. 
 
 Such being the nature, the status of capital stock in a corporation, 
 can one and the same fund supply this want and fill this condition for 
 two corporations? The law required $100,000 of capital stock as a 
 condition on which it granted the corporate franchise for that amount 
 of capital to the Commercial Fire Insurance Company, and the same 
 amount from the Bank of Montgomery as the condition on which it 
 conferred a similar franchise on it. Will a single sum of $100,000 
 meet and satisfy this double demand? The law does not grant 
 acts of incorporation in the undoubting faith and trust that they will be 
 profitably and successfully administered. If there was neither distrust 
 nor doubt, no guaranty, no pledge, no capital stock paid in should be 
 required. The law, basing its action on experience, requires this 
 guaranty, this security, because human enterprises often miscarry. Let 
 us suppose that in the case before us disaster should overtake both 
 corporations, and it should become necessary to exhaust the capital 
 stock of each in the payment of its liabilities. Is it not manifest that 
 the $100,000 the law required as a pledge and guaranty from each 
 company would not be forthcoming? Fifty-one thousand dollars of 
 the sum could not meet the double demand of that sum from the re- 
 spective creditors of the two companies. One dollar can not pay 
 two. 
 
 Let us take a further step. If corporation No. i can, of its $100,- 
 ooo of capital stock, supply fifty-one of the $100,000 the law requires 
 of corporation No. 2, and yet retain its $100,000 of stock, no sound 
 argument can be formulated why it could not furnish the bank with 
 the whole $100,000 of capital with the same result. And if corpora- 
 tion No. i can, from its own capital', furnish the capital stock of cor- 
 poration No. 2, why can not corporation No 2 render the same service 
 to corporation No. 3 ? And why can not this process be carried on 
 indefinitely? Would not such proceedings be an utter subversion of 
 the purpose and policy which require that corporations, as a condition 
 of the franchise they ask to be clothed with, shall furnish this security 
 for those with whom they propose to have dealings? These ques- 
 tions can receive but one answer, and that answer is, that corporations
 
 778 PEOPLE V. COLEMAN. 2IO 
 
 have no authority to subscribe their own capital stock in the capital 
 stock of another corporation in process of organization. * * * 
 Affirmed. Walker and McClellan, JJ., dissent. 
 
 . 210. Capital, capital stock, surplus and franchise distin- 
 guished. 
 
 PEOPLE, Ex REL. U. T. CO., v. COLEMAN. 1 
 
 1891. IN THE COURT OF APPEALS OF NEW YORK. 126 N. Y. 
 
 Re P- 433-45- 
 
 [Appeal from judgment of supreme court, dismissing a writ of 
 certiorarito review assessment of trust company's capital. The com- 
 pany claimed that all its capital stock and surplus were invested in 
 United States securities and exempt. The commissioners held that 
 the capital stock, the actual value of which they were to assess, was the 
 shares, and they ascertained such value by multiplying the nominal 
 capital by the market price of the shares, and deducted therefrom ten 
 per cent, of the nominal capital, the assessed value of the real estate 
 and the investments in the United States securities.] 
 
 FINCH, J. The relator has been assessed upon an "actual value" 
 of its capital stock derived entirely from the market value of its shares. 
 These are selling at the large premium of something over five hundred 
 dollars for each share of one hundred dollars, and the assessors have 
 concededly taken that valuation, or the principal part thereof, as the 
 "actual value" of the company's stock liable to taxation, instead of 
 its own proved and established value. The relator challenges the as- 
 sessment, and through all the proceeding has persistently raised and 
 pressed the inquiry, not so much as to the mode or manner of ascertain- 
 ing value, but rather as to what is the precise thing to be valued, whether 
 the capital stock of the company or the capital stock held in shares by 
 the corporators. If these are the same, or in any just sense equiva- 
 lents, either might be valued without substantial error, but if they are 
 not such we must determine which is to be valued before we can solve 
 the problem of how to value it. 
 
 Now it is certain that the two things are neither identical nor equiv- 
 alents. The capital stock of a company is one thing, that of the share- 
 holders is another and a different thing. That of the company is 
 simply its capital, existing in monev or property, or both ; 'while that of 
 the shareholders is representative, not merely of that existing and tang- 
 ible capital, but also of surplus, of dividend earning poiver, of fran- 
 chise and the good tv ill of an established and prosperous business. 
 The capital stock of the company is owned and held by the company 
 in its corporate character ; the capital stock of the shareholders they 
 own and hold in different proportions as individuals. The one 
 
 1 Statement abridged ; arguments and part of opinion omitted.
 
 210 CAPITAL STOCK. 779 
 
 belongs to the corporation, the other to the corporators. The fran- 
 chise of the company, which may be deemed its business opportunity 
 and capacity, is the property of the corporation, but constitutes no 
 part or element of its capital stock, while the same franchise does 
 enter into and , form part, and a -very essential part , of the share- 
 holder's capital stock. While the nominal or par value of the capi- 
 tal stock and of the share stock are the same, the actual value is often 
 widely different. The capital stock of the company may be -wholly in 
 cash or in property, or both, -which may be counted and valued. It 
 may have in addition a surplus, consisting of some accumulated and 
 reserved ftind, or of undivided profits, or both, but that surplus is 
 no part of the company's capital stock, and, therefore, is not itself 
 capital stock. The capital can not be divided and distributed; the 
 surplus may be. But that surplus does enter into and form part of 
 the share stock, for that represents and absorbs into its own value 
 surplus as -well as capital, and the franchise in addition. So that 
 the property of every company may consist of three separate and dis- 
 tinct things, which are its capital stock, its surplus, its franchise; 
 but these three things, several in the ownership of the company, are 
 united in the ownership of the shareholders. The share stock covers, 
 embraces, represents all three in their totality, for it is a business 
 photograph of all the corporate possessions and possibilities. A com- 
 pany also may have no surplus, but, on the contrary, a deficiency 
 which works an impairment of its capital stock. Its actual value is 
 then less than its nominal or par value, while yet the share stock, 
 strengthened by hope of the future and the support of earnings, may 
 be worth its par, or even more. And thus the two things the com- 
 pany 's capital stock and the shareholder 's capital stock are essen- 
 tially and in every material respect different. They differ in their 
 character, in their elements, in their ownership and in their values. 
 How important and vital the difference is became evident in the 
 effort by the state authorities to tax the property of the national banks. 
 The effort failed, and yet the share stock in the ownership of individ- 
 uals was held to be taxable as against them. The corporation and its 
 property were shielded, but the shareholders and their property were 
 taxed. 
 
 Now some degree of confusion and trouble have come in because 
 these two different things are denominated alike capital stock, making 
 the expression sometimes ambiguous. It is the important and decisive 
 phrase in the law of 1857, under which the assessment here resisted 
 was made, and requires of us to determine at the outset in which 
 sense it was used. The section reads thus: "The capital stock of 
 every company liable to taxation, except such part of it as shall have 
 been excepted in the assessment roll, or shall have been exempted by 
 law, together with its surplus profits or reserved funds exceeding 10 
 per cent, of its capital, after deducting the assessed value of its real 
 estate and all shares of stock in other corporations actually owned by 
 such company which are taxable upon their capital stock under the 
 laws of this state, shall be assessed at its actual value and taxed
 
 780 PEOPLE V. COLEMAN. 2IO 
 
 in the same manner as the other real and personal estate of the 
 county." 
 
 There are reasons in abundance for the conclusion that by the 
 phrase "capital stock" the statute means not the share stock, but the 
 capital owned by die corporation ; the fund required to be paid in and 
 kept intact as the basis of the business enterprise and the chief factor 
 in its safety. One ample reason is derived from the fact that the tax 
 is assessed against the corporation and upon its property and not 
 against the shareholders, and so upon their property. In theory every 
 tax is charged against some person, natural or artificial, resident or 
 non-resident, known or unknown. It is assessed, not upon property 
 irrespective of ownership, but against persons in respect to their prop- 
 erty (23 N. Y. 215), and effects not merely a lien, but also a personal 
 liability. On the assessment rolls in this case appeared the name of 
 the relator as the person assessed, and the amount of the tax became 
 a charge against it. Of course, it could only be assessed and taxed 
 in respect to its own property, that which in its corporate character it 
 owned and possessed, and so it follows inevitably that the statute con- 
 cerns the company's capital stock, that is, its real and actual capital, 
 and not in any respect the share stock which it does not own and whose 
 possessors have not been assessed. 
 
 Another reason is founded on those terms of the statute which in- 
 clude and exclude respectively specific kinds or classes of property in 
 the corporate ownership. Thus the assessment is to be laid not 
 merely upon the capital stock of the corporation, but also upon its 
 surplus. No such explicit direction was necessary, except upon the 
 assumption that by the words 4 'capital stock" was meant simply 
 ' 'capital," which would not include surplus, and so required that it 
 be subjected by name to the valuation. If the share stock was meant 
 its value would include surplus and make its specification not only 
 needless but confusing. But while the statute includes surplus by 
 specific mention, it excludes franchise by omitting it. The omission 
 of franchise is emphasized 'by the careful inclusion of surplus. It is 
 fully and definitely settled that the tax imposed by the statute is not 
 upon franchise. (People v. Comrs. of Taxes, 2 Black. 620.) But 
 if that be so, it is not upon the share stock, for that represents the 
 value of the corporate franchise as a part of the total of the corporate 
 property. And so, both by what it specifically includes and silently 
 excludes, the statute itself informs us that by "capital stock" it means 
 and intends the company's actual capital paid in and possessed, and 
 not at all or in any sense the share stock. * * * 
 
 (Reviewing statutes and distinguishing the following cases : Os- 
 wego Starch Factory v. Dilloway, 21 N. Y. 449; People, ex rel., \. 
 Comrs. of Taxes, '23 N. Y. 192 ; People, ex rel., v. Dolan, 36 N. Y. 
 59; People, ex rel., v. Ferguson, 38 N. Y. 89; People, ex rel., v. 
 Bd. of Assrs., 39 N. Y. 81 ; People, ex rel., v. Comrs. of Taxes, 95 
 N. Y. 554 ; People, exrel., v. Asten, 100 N. Y. 597 ; People, ex rel.,
 
 2IO CAPITAL STOCK. 781 
 
 v. Comrs. of Taxes, 104 N. Y. 240; People, ex rel., v. Coleman, 
 107 N. Y. 541.) 
 Judgment reversed. 
 
 Note. See, 1851, State v. Morristown Fire Assn., 23 N. J. L. 195. 
 
 Capital stock, capital, shares, and property. Great confusion exists in the 
 use of these terms ; sometimes capital stock is used to mean the amount of 
 stock a corporation is authorized to issue ; sometimes the amount subscribed 
 and issued ; sometimes the amount actually paid in, with which the company 
 proceeds to do business; sometimes the value (actual or nominal) of the sum 
 total of the shares in the hands of the shareholders ; sometimes the value of 
 the property of the corporation, real and personal, including surplus and 
 franchise. 
 
 Statutes frequently provide that the articles of incorporation shall state the 
 amount of capital stock, and after 50 per cent, is subscribed, and 10 per cent, 
 thereof is paid in, the corporation may organize and commence business 
 leaving it in the discretion of the corporation to call for further subscriptions 
 or further payment upon subscriptions made. For example, if, under such a 
 law, the articles of incorporation provide "the capital stock shall be $100,000," 
 the corporation may commence business with $50,000 subscribed, upon which 
 only $5,000 were actually paid in; there would, however, exist the capacity 
 to call for the payment of $45,000 more, and also to issue $50,000 more by a 
 new subscription, and to call for its payment. 
 
 If the whole amount authorized was always subscribed and paid in there 
 would be little difficulty ; the sums being the same, each could very properly be 
 designated capital stock; yet there is opportunity here for confusion with the 
 corporate property, for if the whole $100,000 were paid in and invested in 
 property which increased in value to $150,000, it might be and sometimes is 
 said that the capital stock is $150,000, instead of $100,000; approved usage, 
 however, says there is still only $100,000 capital stock, but a surplus of $50,000, 
 which, if it can be separated from the rest, can be paid to the shareholders as 
 dividends; on the other hand, if there should be a loss of $50,000, it would 
 seem wrong to say the capital stock is $100,000, yet approved usage still says 
 the capital stock is $100,000, though there is a deficit of $50,000, and the cor- 
 porate property is only $50,000, the corporation (at least for the protection of 
 creditors) being required to make up such deficit before distributing subse- 
 quent earnings as dividends. 
 
 More difficulty arises when the Avhole amount authorized is not subscribed, 
 and only a part of the latter is paid in ; of course, in such event it could be 
 made clear in each case what was meant by using the terms : Authorized capi- 
 tal stock, $100,000 ; subscribed capital stock, $50,000 ; paid-up capital stock, 
 $5,000; and if such terms were always used in statutes, contracts, rules, etc., 
 much confusion could be avoided. Unfortunately, however, capita) stock and 
 capital are the only terms used, as "The capital stock shall not be increased or 
 decreased, except by consent of the state;" or, "The capital stock is a trust 
 fund for the security of creditors;" or, "Dividends shall not be paid out of 
 the capital of the company;" or, "The corporation shall be taxed only upon 
 its capital stock;" or, "The capital stock shall be exempt from taxation ;" or, 
 "The shares of stock shall be taxed, or be exempt from taxation." 
 
 In the first case, increasing or decreasing the capital stock the authorized 
 capital stock the amount named in the charter or articles of association is 
 meant, not the property of the corporation, not the amount subscribed or 
 paid in ; but no greater subscription than the authorized amount can 
 rightly be taken, and no payment, in the absence of a special statutory lia- 
 bility, can be required beyond the amount subscribed. The property, however, 
 may be increased to any extent, or diminished to any extent, that does not 
 interfere with the performance of its corporate functions or the payment of 
 creditors. See Barry v. Merchants' Exchange, supra, p. 766. 
 
 In the second case the capital stock as a trust fund which is meant, the 
 authorized, the subscribed, or the paid in amounts, or the property only of
 
 782 PEOPLE V. COLEMAN. 2IO 
 
 the corporation? If all that is authorized is subscribed, paid in and invested 
 in property, and there is no statutory liability, the creditor can not look 
 further than to the actual property of the corporation, though it is much less 
 than the capital stock named, if the loss is due to misfortune, and not fraud 
 or improper appropriation of corporate funds by officers or members ; on the 
 other hand, if this property is more than the capital stock named, and is 
 undivided in the hands of the corporation, the creditor can have it applied, 
 if necessary, to the payment of his debt; yet until a lien has been acquired 
 or insolvency converted it into a trust fund, the surplus over the amount of 
 stock named can be distributed as dividends. But if the whole amount 
 authorized is never subscribed, and the law allows business to be done with a 
 smaller subscription, then as to a creditor, what is the capital stock? It is 
 universally conceded that the amount subscribed, and not the amount author- 
 ized, is the capital stock, for there is no way by which a corporation can be 
 required to secure additional subscriptions, or to compel any one to subscribe 
 in order to pay creditors ; in other words, unissued shares are not part of the 
 capital stock, so far as creditors are concerned. Sturges v. Stetson, 1 Biss. 
 (U. S.) 246, on 248, 10 Myer's Fed. D., 142 ; Christensen v. Eno, 106 N. Y. 97. 
 
 On the other hand, the creditor has the right to have all the subscriptions 
 paid up, if necessary, for his protection, and no part of the property returned 
 to the shareholders that reduces it to a value less than the face value of the 
 amount subscribed, if necessary, to pay his claims. Scovill v. Thayer, 105 
 U. S. 143; Wood v. Dummer, 3 Mason 308. So here, too, the amount sub- 
 scribed, and not the amount paid in is the capital stock that is the primary 
 basis of the company's credit ; but this, too, is subject to the qualification made 
 above the creditor has the protection of the surplus earned until divided, 
 and can claim no more than the actual property, if all subscribed has been 
 once paid in good faith, and not lost through negligence, fraud or misappro- 
 priation. 
 
 As to the next "dividends shall not be paid out of the capital" capital is 
 used to mean the amount of property of the company equal in value to the 
 face value of the stock subscribed ; all above that is surplus, and may be dis- 
 tributed in dividends ; and in this sense capital is equivalent to capital stock 
 subscribed as above explained. Williams v. Western Union Tel. Co., 93 N. Y. 
 162. The word capital is, however, more generally used to designate the 
 actual property of the company derived from what has been paid in on the 
 shares with undivided accumulations, whether the total is less or greater than 
 the amount subscribed, and whether there have been losses or gains ; in short, 
 to designate. the actual sum with which business is being done at any partic- 
 ular time. 
 
 As to taxation, there are many conflicting views : Taxation is supposed to 
 be upon values without duplication. If placed upon capital stock, and the au- 
 thorized capital stock was assessed at its face value, in case all was not sub- 
 scribed, it would amount to an assessment upon a mere privilege, and would 
 be in the nature of a franchise tax ; if placed upon the face value of the 
 amount subscribed, regardless of the sum paid in, it would be upon a mere 
 possibility or power to call for further payments (except so far as paid up), 
 and would also be in the nature of a franchise tax ; if, upon the market value, 
 this would be determined by the net amount of corporate property, the earn- 
 ing capacity and business opportunity exhibited by the corporation, and 
 would, therefore, be equivalent to the total value of all the shares in the hands 
 of the shareholders, and the tax so laid would be upon the same elements of 
 value charged against the corporation ; if, in addition to this, the corporate 
 property, its lands, chattels and credits, was taxed against the corporation 
 there would be double taxation to that extent; and if the shares in the hands 
 of shareholders were also taxed at their market value there would be triple 
 taxation, in the sense that the same actual elements of value or part of them 
 would be taxed three times twice to the corporation, and once to the share- 
 holders. 
 
 Again, if capital stock is held to mean only the corporate property lands, 
 chattels and credits and these alone are taxed, it is evident that in many
 
 2IO CAPITAL STOCK. 783 
 
 cases property rights of great value arising from the existence of the corpora- 
 tion are not taxed. When A. subscribes for a share of $100 face value, and 
 pays in that sum, the corporation is the owner of the $100 as tangible prop- 
 erty and A. is the owner of the intangible share, entitling him to have this $100 
 (if all creditors are otherwise satisfied) with all its net earnings during the 
 corporate existence returned to him at the dissolution of the corporation, or 
 from time to time before, in the case of the surplus earnings ; though it is not 
 considered a loan, it is in some respects similar, but without an obligation to re- 
 pay before dissolution, or to pay interest in the meantime ; these rights of the 
 shareholder are considered A.'s property, and, in general, if he receives more 
 in the way of dividends than he would receive as interest from a safe loan of 
 $100, these intangible rights would be considered worth more as property 
 represented by a certificate of shares instead of a promissory note than $100, 
 or if the income was less than from a safe loan the share would be considered 
 less valuable ; the $100 that the corporation has is only $100 as its property, 
 but because of its earning capacity, A.'s intangible rights arising from it, his 
 property in it is worth more than $100; a valuation, therefore, of the cor- 
 porate property alone as property does not reach all the elements of value in 
 connection with the $100 ; its earning capacity does not add to the corporate 
 property, but does add to A.'s property. 
 
 But inasmuch as the $100 A. has put in the corporation is put there mainly 
 as an investment for gain, its value to him is determined almost wholly by its 
 earning capacity, and very little by the fact that it is $100 property in the 
 hands of the corporation ; the reason for this is that the $100 can not be ob- 
 tained by A. as his property until the corporation is dissolved, which may 
 never occur, or only at an uncertain time in the future. However much, 
 property the corporation may actually have, the market value of its shares 
 depends mostly upon the earning capacity of the property, and not upon 
 the actual value of the property. As Mr. Justice Bigelow says in Commw. 
 v. Hamilton Mfg. Co., 12 Allen (Mass.) 298, on 302: "The price for which 
 all the shares would sell may greatly exceed the aggregate of the cor- 
 porate property, or it may fall very far short of it. Undoubtedly the 
 amount of property * * * is one of the considerations that enters into 
 the market value of its shares ; but such market value also embraces other 
 elements; * * * it includes the profits and gains which have attended its 
 operations, the prospects of its future success, the nature and extent of its 
 corporate rights and privileges, and the skill and ability with which its busi- 
 ness is managed, the estimate put on the potentiality of a corporation." So, 
 too, the corporate property may be large, because it has all, or most of it, been 
 purchased by the proceeds of bonds sold, and upon which the income is suffi- 
 cient to pay large interest, but with nothing left for dividends in which event 
 the stock would be of but little value ; yet possibly this would in some degree 
 represent the net value of the property after the bonds were paid. But the 
 corporation may in fact also have property to the value of a million dollars, 
 and its shares be worth in the market but little, because the corporate prop- 
 erty is unproductive and the owner of the shares can in no way have the 
 valuable property apportioned to him, but is bound to let it remain unpro- 
 ductive until dissolution of the corporation. From such considerations as 
 these it seems clear that the property of the corporation and the capital stock 
 of the corporation are different materially in value very frequently, the 
 value of the capital stock being equivalent to the sum total of the value of 
 the shares, and this being the business estimate of the earning capacity of 
 the property as it is then employed and not the value of the same property 
 as it could and (if not owned by that corporation) would, probably, be em- 
 ployed. Because of these differences in value, and in ownership in the case 
 of shares, it is generally held that a tax on the property of the corporation, 
 and a tax on the shares of the stockholders are not double taxation though 
 both seem to be placed upon the same sources of value. 
 
 Although it is certain that confusion will continue to exist in the use of 
 these terms, yet it is desirable that it be avoided as much as possible ; and as 
 an aid to that end it is suggested that terms be used as follows so far as possi-
 
 784 PEOPLE V. COLEMAN. 2IO 
 
 ble: Authorized capital stock, to mean the total face value of all the shares the 
 corporation has the right to issue ; capital stock, to mean the sum total sub- 
 scribed, equivalent in face value to the sum total of the face value of the shares 
 issued; capital, the sum paid in as the fund with which it transacts business 
 orthe total value of all the property of the corporation arising from the in- 
 vestment of this fund; shares, the intangible property of the individual 
 shareholders, in face value equivalent to the capital stock of the corporation, 
 and in actual value, the business estimate of the earning power of the capi- 
 tal of the corporation. It is believed that these views are sanctioned gener- 
 ally by text writers, and also by the best considered cases, where the uncer- 
 tainty of statutes have not made it necessary to hold otherwise. Ang. & A., 
 556, et seq.; Beach, 465, et seq.; Boone, 105, 112; Clark, p. 256, et seq.; 
 Cook 11, 12, 199; Elliott, 299, 300; Lowell Transfer of Stock, ch. 1; 
 Morawetz, 137, 781 ; Taylor, i24, 541, 545; I Thompson, 1059-1085; II 
 Thompson, 2810 ; III Thompson, 2956, 4288, et seq. 
 
 Below is given a collection of cases where these matters are considered: 
 Capital stock does not include unissued but authorized shares: 1858, Codding- 
 ton v. Gilbert, 17 N. Y. 489; 18C8, Fisk v. Chicago, etc., R., 36 How. Pr. 
 (N. Y.) 20, on 22; 1877, Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328, on 
 338; 1879, Pratt v. Munson, 17 Hun. (N. Y.) 475; 1887, Christensen v. Eno, 
 106 N. Y. 97. 
 
 2. Capital stock means the amount subscribed, and not the sum paid in : 1834, 
 Bank of Utica v. City of Utica, 4 Paige Ch. (N. Y.) 399, on 402; 1842, People- 
 v. Supervisors of Niagara, 4 Hill (N. Y.) 20; 1844, Ward v. Griswoldville 
 Mfg. Co., 16 Conn. 593; 1850, Hightower v. Thornton, 8 Ga. 486, 52 Am. D. 
 412; 1851, State v. Morristown Fire Assn., 23 N. J. L. 195, on 196; 1862, Bank 
 of Commerce v. N. Y. City, 67 U. S. (2 Black) 620, on 628; 1882, Wetherbee 
 v. Baker, 35 N. J. Eq. 501; 1891, Security Co. v. Town of Hartford, 61 Conn. 
 89, on 100, 101. 
 
 3. Capital stock means the necessary property of the company purchased by the 
 fund derived from the payments on the shares subscribed: 1868, State v. Hood, 15- 
 Rich. Law (S. C.) 177; 1875, State Railroad Tax Cases, 92 U. S. 575, on 602; 
 1880, Ohio and Mississippi R. Co. v. Weber, 96 111. 443; 1881, Bank v. Ten- 
 nessee, 104 U. S. 493; 1883, Williams v. W. U. Tel. Co., 93 N. Y. 162; 1891, 
 Security Co. v. Hartford, 61 Conn. 89, on 100-1; 1892, Wilkes Barre, etc., 
 Bank v. Wilkes Barre, 148 Pa. St. 601 ; 1897, Union Bank v. City of Rich- 
 mond, 94 Va. 316; 1898, Commonwealth v. N. Y., P. & O. R. Co., 188 Pa. St. 
 169, and cases on pp. 195, 198, 199 and 203. 
 
 But does not include unnecessary property : 1842, Inhabitants of Worcester 
 v. Western R. Corp., 4 Mete. (Mass.) 564; 1847, Railroad v. Berks Co., 6 Pa. 
 St. 70; 1855, Vermont Central R. Co. v. Burlington, 28 Vt. 193. 
 
 Neither does it include surplus: 1883, Williams v. W. U. Tel. Co., 93 N. Y. 
 162; 1891, People v. Coleman, 126 N. Y. 433, supra, p. 778. But see, 1898, 
 Commw. v. N. Y., P. & O. R. Co., 188 Pa. St. 169. 
 
 4. Capital stock does not mean the corporate property they are distinct things : 
 1819, McCulloch v. Maryland, 4 Wheat. (U. S.) 316; 1851, State v. Morris- 
 town Fire Assn., 23 N. J. L. 195, on 196; 1862, Bank of Commerce v. N. Y. 
 City, 67 U. S. (2 Black) 620, on 628; 1866, Commonwealth v. Hamilton Mfg. 
 Co., 12 Allen (Mass.) 298, on 302^1; 1877, Memphis & C. R. Co. v. Games, 
 3 Tenn. Ch. 604; 1878, Railroad Companies v. Gaines, 97 U. S. 697; 1886, 
 Tennessee v. Whitworth, 117 U. S. 129, on 139; 1892, Railway Company v. 
 Furnace Co., 49 O. S. 102; 1895, Wells v. Green Bay, etc., Co., 90 Wis. 442. 
 
 5. Capital stock and shares of stock in hands of shareholders are the same: 
 1845, Gordon v. Appeal Tax Court, 44 U. S. (3 How.) 133, on 147; 1852, The 
 State v. Branin, 23 N. J. L. 484; 1861, People v. Commissioners of Taxes, 23 
 N. Y. 192, on 220; 1869, National Bank v. Commonwealth, 76 U. S. (9 Wall.) 
 353, on 359 ; 1875, Nichols v. New Haven & N. Co., 42 Conn. 103, on 120; 1886; 
 Tennessee v. Whitworth, 117 U. S. 129. 
 
 6. Capital stock and shares in the hands of the shareholders are not the same: 
 1836, Union Bank v. The State, 9 Yerg. (Tenn.) 489; 1864, Lycoming Co. v. 
 Gamble, 47 Pa. St. 106; 1865, Van Allen v. Assessors, 3 Wall (70 U. S.) 573:,
 
 211 CAPITAL STOCK. 785 
 
 on 583; 1869, National Bank v. Commonwealth, 76 IT. S. (9 Wall.) 353, on 
 359; 1873, The Delaware Railroad Tax, 85 U. S. (18 Wall.) 206, on 229; 
 1877, Farrington v. Tennessee, 95 U. S. 679, on 686; 1884, State Bank v. City 
 of Richmond, 79 Va. 113; 1896, Shelby Co. v. Union & P. Bank, 161 U. S. 149, 
 011 154; 1895, Bank of Commerce v. Tennessee, 161 U. S. 134, on 146; 1897, 
 Union Bank v. City of Richmond, 94 Va. 316; 1898, Bank v. Memphis, 101 
 Tenn. 154. 
 
 7. Capital means the property of the company: 1861, People v. Commission- 
 ers, etc., 23 N. Y. 192, on 219; 1862, Bank of Commerce v. N. Y. City, 67 V. 
 S. (2 Black) 620, on 629; 1865, Van Allen v. Assessors, 70 U. S. (3 Wall.) 573, 
 on 583; 1869. National Bank v. Commonwealth, 76 U. S. (9 Wall.) 353, on 
 359; 1874, Bailey v. Clark, 88 U. S. (21 Wall.) 284; 1878, Burrall v. Bush- 
 wick R., 75 N. Y. 211 ; 1880, Bradley v. Bander, 36 Ohio St. 28, on 35; 1883, 
 Williams v. Western U. Tel. Co., 93 N. Y. 162; 1886, Tennessee v. Whitworth, 
 117 U. S. 129, on 139; 1895, Wells v. Green Bay, etc., Co., 90 Wis. 442. 
 
 8. Capital is the same as capital stock of the corporation: 1883, Williams v. 
 Western Union Tel. Co., 93 N. Y. 162; 1891, People v. Coleman, 126 N. Y. 
 433, supra, p. 778: 1892, Railway Co. v. Furnace Co., 49 Ohio St. 102; 1894, 
 American, etc., Co. v. State Board, 56 N. J. L. 389; 1895, Tradesman Pub. 
 Co. v. Car Wheel Co., 95 Tenn. 634. 
 
 9. Capital is not the same as shares of stock in the hands of the shareholders: 
 1865, Van Allen v. The Assessors, 70 U. S. (3 Wall.) 573, on 583; 1866, Com- 
 monwealth v. Hamilton Mfg. Co., 12 Allen (Mass.) 298, on 302-4; 1866, Peo- 
 ple v. Commissioners, 71 U. S. (4 Wall.) 244, on 255; 1866, Bradley v. The 
 People, 71 U. S. (4 Wall.) 459; 1869, National Bank v. Commonwealth, 76 
 U. S. (9 Wall.) 353, on 359; 1880, Bradley v. Bauder, 36 Ohio St. 28; 1886, 
 Tennessee v. Whitworth, 117 U. S. 129 ; 1897, New Orleans v. Citizens' Bank, 
 167 U. S. 371, on 402. 
 
 10. Property of the corporation is not the same as shares of stock: 1866, Com- 
 monwealth v. Hamilton Mfg. Co., 12 Allen (Mass.) 298, on 302-4; 1898, State 
 v. Travelers' Ins. Co., 70 Conn. 590, on 603; 1899, Owensboro National Bank 
 v. Owensboro, 173 U. S. 664. 
 
 Sec. 211. Capital stock Kinds, common and preferred. 
 HAMLIN v. CONTINENTAL TRUST COMPANY. 1 
 
 1897. IN THE UNITED STATES CIRCUIT COURT OF APPEALS, Sixth 
 
 Circuit (Ohio), 47 U. S. Appeals Rep. 422-438, 78 Fed. Rep. 
 
 664, 36 L. R. A. 826, 7 A. & E. C. C. N. S. 631. 
 
 [Certain unsecured creditors of the insolvent Toledo, St. L. & K. 
 C. R. Co., in May, 1893, filed a bill on behalf of all the creditors to 
 wind up the affairs of the railroad and distribute its assets ; a receiver 
 was appointed under this bill ; the bondholders were not made parties 
 to this suit, but in December, 1893, the Continental Trust Company, 
 trustees for the holders of some $9,000,000 mortgage bonds, filed in 
 the same court a bill to foreclose the mortgage, whereupon the same 
 receiver was appointed as before, and the two cases ordered to be 
 consolidated. Before any decree adjudicating claims or decreeing 
 foreclosure, Hamlin etal., appellants herein, asked to become parties 
 defendant with leave to file an answer and cross-bill ; this was granted, 
 
 'Statement of facts abridged. Only part of opinion given. 
 50 WIL. CASES.
 
 786 HAMLIN V. CONTINENTAL TRUST CO.* 211 
 
 subject to the right of complainants, after further examination, to 
 move to strike from the files, or strike out anything attacking the 
 validity of the consideration for the mortgage bonds. Such motion 
 was afterward made accordingly, and the court gave an opinion 
 "denying the claim of the appellants (Hamlin et al.) to be creditors 
 of the railroad company, or that as preferred stockholders they had 
 any lien valid as against creditors, or any right or interest in or to the 
 property of said company antagonistic to the corporation or to the 
 class of common stockholders," and thereupon an order was entered 
 "denying the appellants the right to intervene or file an answer or 
 other pleading." This ruling, and the decree following it, are 
 appealed from. Other facts are stated in the opinion.] 
 
 LURTON, Circuit Judge. * * * The case made by the petition, 
 answer and cross-bill was substantially this : The appellants and those 
 acting in concert with them are owners and holders of certificates of 
 preferred non-voting stock issued by the Toledo, St. Louis and Kansas 
 City Railroad Company. The total issue of these certificates was 
 $5,805,00x3, and of this total the appellants and those represented by 
 them hold about $2,000,000. They claim that these certificates are 
 money obligations of the railroad company, secured by a lien next 
 after the existing first mortgage bonds of said company. They aver 
 that, though no mortgage was executed and registered to secure said 
 certificates, they constitute a valid equitable mortgage, binding upon 
 the corporation and upon all creditors who become such with notice 
 of this equitable lien. These certificates are in form alike, and were 
 issued simultaneously with the execution of the first mortgage sought 
 to be foreclosed herein, and were registered by the trustee under said 
 first mortgage. We here set out one of these certificates and one of 
 the coupons attached : 
 
 "Toledo, St. Louis and Kansas City Railroad Company. 
 "No. Preferred capital stock. 10 shares. 
 
 "This is to certify that James M. Quigley, or bearer, is entitled to 
 ten shares of one hundred dollars each, of the preferred non-voting 
 capital stock of the Toledo, St. Louis and Kansas City Railroad 
 Company. 
 
 "This stock constitutes a lien upon the property and net earnings of 
 the company next after the company's existing first mortgage. It 
 does not entitle the holder to vote thereon. After the first day of 
 January, 1888, it is entitled to, and carries interest at the rate of 4 
 per cent, per annum, payable semi-annually, represented by interest 
 coupons attached to this certificate. Such interest is only payable out 
 of the net earnings of the company after the payment of interest upon 
 its existing first mortgage bonds, and the cost of maintenance and 
 operation. A statement showing the business of the company for the 
 half of its fiscal year next preceding shall be exhibited at the office of 
 the company in New York to the holder of this certificate, at the ma- 
 turity of each interest coupon, and the net earnings applicable to such 
 interest shall be reckoned for such period. Such interest is not to ac-
 
 211 CAPITAL STOCK. 787 
 
 cumulate as a charge, and the coupons representing unearned interest 
 must be surrendered and canceled on the payment in whole or in part 
 of a subsequently maturing coupon. At any time after the first day 
 of January, 1891, and before the first day of January, 1898, this cer- 
 tificate may be converted into the common capital stock of the com- 
 pany. If not converted, then to become a preferred four per cent, 
 non-cumulative stock. The company will create no mortgage of its 
 main line other than its first mortgage, nor of any part thereof, except 
 expressly subject to the prior lien of this certificate, without the con- 
 sent of the holders of at least two-thirds of this stock present at a 
 meeting, of which reasonable personal notice must be given to each 
 registered stockholder, and by publication for at least three successive 
 weeks in two leading daily newspapers published in the cities of New 
 York and Boston. One-third of the entire issue of this stock present 
 in person or by proxy shall constitute a quorum. Nor will the com- 
 pany increase the issue of these certificates of stock without consent 
 obtained as above. This certificate of stock shall be transferrable by 
 delivery or by transfer on the book of the company in the city of New 
 York, after a registration of ownership, certified hereon by the trans- 
 fer agent of the company. 
 "Countersigned. 
 
 "American Loan and Trust Company, , 
 
 "By , President. 
 
 "Secretary. , 
 
 "New York, June 19, 1886. Secretary. 
 
 "Shares $100 each. 
 
 "The Toledo, St. Louis and Kansas City Railroad Company will 
 pay to bearer on the first day of January, 1898, upon the surrender 
 of this warrant, at its office or agency, in the city of New York, any 
 amount that may be due hereon under the conditions set forth in the 
 certificate of stock to which this is attached, not exceeding the sum 
 
 of twenty dollars. Coupon No. 20. No. . 
 
 "ISAAC WHITE, Secretary." * * * 
 
 In the absence of charter regulation or prohibition by the law of 
 the state under which a corporation is organized, a corporation at its 
 organization may classify its stock, and provide for a preference of 
 one class over another in respect of both capital and dividends, i 
 Cook on Stock and Stockholders (3d ed.), 267, 268, 278; War- 
 ren v. King, 108 U. S. 389; Lockhart v. Van Alstyne, 31 Mich. 76; 
 Kent v. The Quicksilver Mining Company, 78 N. Y. 159; McGregor 
 v. The Home Insurance Company of Newark, New Jersey, 33 N. J. 
 Eq. 181; Miller v. Ratterman, 47 Ohio St. 141, 163. 
 
 In providing for the lien of this stock upon the "property" of the 
 company next after the company's existing first mortgage, "property 
 and net earnings" are coupled together. This is significant. The 
 lien given on "net earnings" is the same kind of lien as that given on 
 the "property" of the company. In such case it is a preference over
 
 788 HAMLIN V. CONTINENTAL TRUST CO. $211 
 
 the usual rights and interests of another but subordinate class of stock- 
 holders. Neither do we think that the provision that this stock shall 
 "become a preferred four per cent, non-cumulative stock," in the 
 event the holder fails to avail himself of the privilege of converting it 
 into common stock within the time allowed, is indicative that it was 
 not preferred stock before the rejection of the option to become com- 
 mon stock. Before that it was a non-voting, non-cumulative pre- 
 ferred stock with the option to become common stock. After that 
 time this option is lost, and with it the privilege of sharing equally 
 with the other class of stock in the control of the corporation and in 
 the distribution of dividends without the limitation prescribed as to 
 the amount of such dividends. That seems to be the only result of 
 rejecting the option. 
 
 There is a wide difference between the relation of a creditor and a 
 stockholder to the corporate property. One can not well be a creditor 
 as respects creditors proper, and a stockholder by virtue of a certifi- 
 cate evidencing his contribution to the capital of the corporation. 
 Stock is capital, and a stock certificate but evidences that the holder 
 has ventured his means as a part of the capital. It is a fixed charac- 
 teristic of capital stock that no part of it can be withdrawn for the 
 purpose of repaying the principal of the capital stock until the debts 
 of the corporation are paid. These principles are elementary. Warren 
 v. King, 108 U. S. 389; i Cook on Stock and Stockholders (3 ed.), 
 271. The chance of gain throws on the stockholder, as respects 
 creditors, the entire risk of the loss of his contribution to capital. "He 
 can not be both creditor and debtor by virtue of his ownership of 
 stock." Warren v. King, supra. If the purpose in providing for 
 these peculiar shares was to arrange matters so that under any circum- 
 stances a part of the principal of the stock might be withdrawn before 
 the full discharge of all corporate debts, the device would be contrary 
 to the nature of capital stock, opposed to public policy, and void as to 
 creditors affected thereby, i Cook on Stock and Stockholders (3d ed.), 
 270, 271 ; Chaffee v. Rutland Railroad Company, 55 Vermont 1 10 ; 
 McCutcheon v. Merz Capsule Company, 37 U. S. App. 586, 598 ; 
 Morrow v. Iron & Steel Co., 3 Pickle (Tenn.) 262. If that was the 
 purpose of this arrangement, most doubtful language was employed. 
 
 There is a sense in which eveiy shareholder is a creditor of the cor- 
 poration to the extent of his contribution to the capital stock. In that 
 sense every corporation includes its capital stock among its liabilities. 
 But that creditor relation is one which exists only between the corpo- 
 ration and its shareholders. It is a liability which is postponed to 
 every other liability, and no part of the capital stock can be lawfully 
 returned to the stockholders until all debts are paid or provided for. 
 The violation of this well-und.erstood principle is a breach of trust, 
 and a creditor affected thereby may pursue the stockholders and 
 recover as for an unlawful diversion of assets. 
 
 The appellants say that it was originally contemplated that the new 
 corporation should pay them for their interests in the foreclosed rail-
 
 $211 CAPITAL STOCK. 789 
 
 road, and for that purpose should issue to them its second mortgage 
 bonds. If that plan had been carried out there would be no doubt as 
 to their attitude. They would have become creditors. Under it their 
 relation would have been one of no doubt, and notice by registration 
 would have put all who dealt with the corporation on guard. That 
 plan was abandoned. They agreed to take and did take the relation 
 of stockholders toward the new company. They surrendered the 
 privilege of voting. That was perhaps a valid agreement between 
 stockholders, though of doubtful public policy. They thereby gave 
 some additional value to the common stock. The latter was the ex- 
 clusive voting stock, and that was worth something as railway man- 
 agement now goes. The surrender of the right to vote does not make 
 them creditors. They bargained for preferred shares of stock, pre- 
 ferred as to dividends and preferred as to capital. For this advan- 
 tageous position they surrendered the first intention by which they 
 were to have become secured creditors. If they intended to become 
 creditors and not stockholders, they adopted a most singular method 
 of defining their relation. We will not presume that their purpose 
 was to adopt a device by which they might withdraw their contribu- 
 tion to the capital stock and leave creditors unpaid. If they intended 
 that, they have not made it plain, and if it was plain, the device would 
 be invalid as to creditors. 
 
 Although the appellants were not creditors proper, yet they show a 
 case on the face of their certificates entitling them to a preference 
 over common stockholders in relation to both dividends and capital. 
 Ordinarily preferred stock is entitled to no preference over other 
 stock in relation to capital. But where there is an expressed agree- 
 ment giving such a preference, not prohibited by local law or the 
 charter, we see no reason why it is not a valid contract as between 
 the corporation and such preferred stockholders, and binding upon 
 the common stockholders. I Cook on Stock and Stockholders (3d 
 ed.), 278; Warren v. King, 108 U. S. 389; Chaff ee v. Rutland 
 Railroad Company, 55 Ver. no; In re Bangor and Portmadoc Slate 
 and Slab Company, L. R. 20 Eq. 59; Lockhart v. Van Alstyne, 31 
 Mich. 76; Kent v. The Quicksilver Mining Company, 78 N. Y. 159. 
 Such a preference would not be inconsistent with their relation as 
 stockholders, and would not affect creditors. This relation to the 
 corporation and to its common stockholders, in view of the non-voting 
 provision in this arrangement, makes it eminently proper that these 
 preferred stockholders should be represented by a reasonable number 
 standing for the class with the right to stand for and defend in respect 
 to their own rights. Bronson v. La Crosse and Milwaukee Railroad 
 Company, 2 Wall. 283, 302. * * * 
 
 The effect of dismissing the appellants from the case after admitting 
 them as parties was to deny them the preference over common stock- 
 holders, and was such a decree as was final, and, therefore, appeal- 
 able. Ex $arte Jordan, 94 U. S. 248. For this error the decree 
 will be reversed. 
 
 Note. I. As to nature of preferred stock, see, 1844, Davis v. Proprietors,
 
 79O KENT V. QUICKSILVER MINING CO. 212 
 
 etc., 8 Mete. (Mass.) 321; 1860, Bates v. Androscoggin & K. R. Co., 49 Maine 
 491 ; 1863, Rutland & B. R. Co. v. Thrall, 35 Vt. 536; 1866, Taft, Trustee, v. 
 Railroad Co., 8 R. I. 310; 1875, Totten v. Tison, 54 Ga. 139; 1875, West Ches- 
 ter & P. R. Co. v. Jackson, 77 Pa. St. 321; 1881, Boardman v. L. S. & M. S. 
 R. Co., 84 N. Y. 157 ; 1882, Chaffee v. Rutland R. Co., 55 Vt. 110; 1883, Nick- 
 als v. R. Co., 15 Fed. Rep. 575 ; 1884, Gordon v. R. F. & P. R. Co., 78 Va. 501 ; 
 1885, Belfast & M. L. R. Co. v. Belfast, 77 Maine 445; 1887, Hazeltine v. B. & 
 M. R., 79 Maine 411, 1 Am. St. Rep. 330; 1890, Miller v. Ratterman, 47 Ohio St. 
 141 ; 1890, Campbell v. American Z. Co., 122 N. Y. 455; 1892, Jones v. Con- 
 cord & M. R. Co., 67 N. H. 234, 68 Am. St. Rep. 650; 1894, Field v. Lamson 
 & Goodnow Mfg. Co., 162 Mass. 388, 27 L. R. A. 136; 1898, People v. St. 
 Louis, A. & T. R, Co., 176 111. 512, 12 A. & E. C. C. (N. S.) 227 ; 1898, Cook v. 
 Association, 104 Ga. 814, 30 S. E. Rep. 911; 1899, Pronick v. Spirits Distribut- 
 ing, 58 N. J. Eq. 97, 42 Atl. Rep. 586; 1899, Savannah Real Estate, L. & B. 
 Co. v. Silverberg, 108 Ga. 281, 33 S. E. Rep. 908; 1899, Heller v. National Ma- 
 rine Bank, 89 Md. 603, 45 L. R. A. 438, 73 Am. St. Rep. 212, note 227. 
 
 Sec. 212. Preferred stock Power to issue. 
 
 KENT v. QUICKSILVER MINING COMPANY. 1 
 
 1879. IN THE COURT OF APPEALS OF NEW YORK. 78 New York 
 
 Reports 159191. 
 
 FOLGER, J. These are suits in equity to perpetually restrain the 
 Quicksilver Mining Company from taking certain action, on the one 
 hand proposed by it with the expressed assent of some only, of the 
 stockholders in it, and on the other hand demanded of it by certain 
 other of the stockholders in it which demand, it and still other stock- 
 holders resist. 
 
 Whatever the frame of the pleadings in the several actions, and 
 whatever the formal prayer for judgment, the purpose of the litiga- 
 tion in each is to reach a final and binding judgment, whether certain 
 ''preferred stock," heretofore created by that company, is so far valid 
 as to be recognized in the future business of the company as giving to 
 the holders thereof the peculiar right expressed in the certificate 
 thereof. (The judgment below held the issue of preferred stock to 
 be valid.) 
 
 What is meant by ''"preferred stock" is well enough known in law 
 and business without definition or circumlocution here. * * * 
 
 (The corporation had the usual corporate powers, including "the 
 power to issue certificates of stock, representing the value of its prop- 
 erty, in such form and subject to such regulations as it might from 
 time to time by its by-laws prescribe.") 
 
 A by-law was duly made, which declared the w r hole value of its 
 property and the whole amount of its capital stock, and divided the 
 whole of it into shares equal in amount, and directed the issuing of 
 certificates of stock therefor. It is not to be said that this by-law au- 
 thorized anything but shares equal in value and in right; or that the 
 
 1 Statement much abridged, and only part of opinion given.
 
 212 PREFERRED STOCK. 791 
 
 taker of one did not own as large an interest in the coiporation, its 
 capital, affairs and profits to come, as any other holder of a share. 
 Certificates of stock were issued under this by-law that gave no ex- 
 pression of anything different from that. When that by-law was 
 adopted, it was as much the law of the corporation as if its provisions 
 had been a part of the charter. (Presbyterian Church v. City of New 
 York, 5 Cow. 53^0 So it is said in Grant on Corporations, p. 80, 
 in a qualified way. Thereby, and by the certificate, as between it 
 and every stockholder, the capital stock of the company was fixed in 
 amount, in the number of shares into which it was divisible, and in 
 the peculiar and relative value of each share. The by-law entered 
 into the compact between the corporation and every taker of a share ; 
 it was in the nature of a contract between them. The holding and 
 owning of a share gave a right which could not be divested without 
 the assent of the holder and owner ; or unless the power so to do had 
 been reserved in some way. (Mech. Bank v. N. Y. and N. H. R. 
 Co., 13 N. Y. 599627.) Shares of stock are in the nature of choses 
 in action, and give the holder a fixed right in the division of the 
 profits or earnings of a company so long as it exists, and of its effects 
 when it is dissolved. That right is as inviolable as is any right in 
 property, and can no more be taken away or lessened, against the 
 will of the owner, than can any other right, unless power is reserved 
 in the first instance, when it enters into the constitution of the right ; 
 or is properly derived afterwards from a superior law giver. The 
 certificate of stock is the muniment of the shareholder's title, and 
 evidence of his right. It expresses the contract between the corpora- 
 tion and his co-stockholders and himself; and that contract can not, 
 he being unwilling, be taken away from him or changed as to him 
 without his prior dereliction, or under the conditions above stated. 
 Now it is manifest that any action of a corporation which takes hold 
 of the shares of its capital stock already sold and in the hands of law- 
 ful owners, and divides them into two classes one of which is 
 thereby given prior right to a receipt of a fixed sum from the earnings 
 before the other may have any receipt therefrom, and is given an 
 equal share afterwards with the other in what earnings may remain 
 destroys the equality of the shares, takes away a right which originally 
 existed in it, and materially varies the effect of the certificate of stock. 
 
 It is said that when a corporation can lawfully buy property, or get 
 money on loan, any known assurance may be exacted and given which 
 does not fall within the prohibition, express or implied, of some stat- 
 ute (Curtis v. Leavitt, 15 N. Y. 66-67) ; and that is sought to be 
 applied here. But the prohibition to such action as this is found, not 
 indeed in a statute commonly so called, but in the constitutional pro- 
 vision which forbids the impairment of vested rights, save for public 
 purposes and on due compensation. The right which a stockholder 
 gets on the purchase of his share and the issue to him of the certifi- 
 cate therefor is such a vested right. 
 
 It is contended that the power so to do is an incidental and implied 
 power, necessary to the use of the other powers of the corporation,
 
 792 KENT V. QUICKSILVER MINING CO. 212 
 
 and is a legitimate means of raising money and securing the agreed 
 consideration therefor. We have already conceded that it is legitimate 
 to borrow money, and to secure the repayment of it, with a compen- 
 sation for the use of it. But that is when it is done in such way as to 
 put the burthen upon every share of stock alike, and to enable every 
 share of stock to be relieved therefrom alike ; in such way as to pre- 
 serve the equality of right and privilege and value of the shares, and 
 maintain intact the contract thereto with the .stockholder. 
 
 Citations are made to us for the converse of this, but they do not 
 come up sometimes in their facts, sometimes in their declarations 
 to the necessity of the proposition. Either it is where the capital is 
 not limited, and it is new shares that may be issued with a preference, 
 and where there is express power to borrow on bond and mortgage 
 (2 Redf. on Railways, ch. 33, 4, 237; Harrison v. Mex. R. W., 
 12 Eng. Rep. 793); or the amount of the capital has not been reached 
 and such stock is issued therefrom (Hazelhurst v. Savannah R., 43 
 Ga. 53; Tottan v. Tison, 54 Ga. 139); or there was legislative au- 
 thority (Davis v. Proprietors, SMetcf. 321 ; Rutland R. Co. v. Thrall, 
 35 Vt. 545) ; or a restriction to authorized capital and there was 
 unanimous consent of the stockholders (Prouty v. M. S. & N. I. R., 
 i Hun 663 ; 43 Ga. 53, supra) ; or there was power to redeem, which 
 wao a transaction in the nature of a debt (Westchester, etc., R. Co. 
 v. Jackson, 77 Pa. St. 321) ; or the opinion was obiter (Bates v. An- 
 droscoggin R. Co., 49 Maine 491) ; or it was the case of a subscrip- 
 tion for stock with a condition for interest until the corporation was 
 in operation (Richardson v. Vt. & Mass. R. Co., 44 Vt. 613) ; or it 
 was an action on a subscription more favorable to defendant than to 
 other subscribers, and it was held that defendant could not set up the 
 lack of equality (Evansville R. Co. v. Evansville, 15 Ind. 395); or 
 a solemn determination of this question was not necessary for the dis- 
 posal of the case (Williston v. M. S. & N. I. R. Co., 13 Allen 400) ; 
 or the issue was authorized by the articles of association (/ re A'D. 
 St. Nav. & Col. Co., 20 L. R. Eq. 339) ; or there was full knowl- 
 edge on the part of all concerned (Lockhart v. Van Alstyne, 31 Mich. 
 Si) ; or the power in the corporate body was conceded, and it was 
 denied that it existed in the directors (McLaughlin v. D. & M. R., 
 8 Mich. 100). 
 
 We will not say, for we are not called upon here to say, that never 
 can a corporation rightfully, against the dissent of a portion of its 
 stockholders, make some of the stock preferred; what we assert is 
 that this case does not present a state of facts in which a power so to 
 do exists. 
 
 There is a power in this charter to alter, amend, add to or repeal, 
 at pleasure, by-laws before made. It is argued from this that it was 
 in the power of the corporate body, in due form and manner, to alter 
 the by-law which had fixed the amount of the capital stock and the 
 number and relative value of the shares thereof. The power to make 
 by-laws is to make such as are not inconsistent with the constitution 
 and the law; and the power to alter has the same limit, so that no
 
 212 PREFERRED STOCK. 793 
 
 alteration could be made which would infringe a right already given 
 and secured by the contract of the corporation. Nor was the power 
 to alter, to the extent of affecting the contracted relative value of a 
 share, reserved when the share was sold to the stockholder, so as to 
 enter into and form a part of the contract. An alteration is a pro tanto 
 repeal ; but no private corporation can repeal a by-law so as to impair 
 rights which have been given and become vested by virtue of the by- 
 law afterwards repealed. * * * 
 
 We are therefore of the opinion that there was no power in the 
 corporate body, nor in a majority of the stockholders, to provide by 
 by-law for the creation of a preferred stock, so as to bind a minority 
 of the stockholders not assenting thereto. * * * 
 
 But there remains a serious question, whether, though there was at 
 the outstart a minority of the stockholders who gave no assent to the 
 corporate act, there has not been such tacit acquiescence and delay in 
 action by that minority as to amount to indefensible laches and 
 estoppel upon those who constituted it and their assigns. In our 
 judgment there has, and we find here a safe place on which to rest 
 our decisions of these cases.* * * 
 
 Affirmed on the ground of estoppel by laches. 
 
 Note. Power to issue preferred stock generally: 1857, Everhart v. West Ches- 
 ter, etc., R. Co., 28 Pa. St. 339; 1865, Hutton v. Scarborough Cliff Hotel Co., 
 4 De G. J. & S. 672, 2 Dr. & S. 514, 521; 1884, Gordon v. Richmond, etc., R. 
 Co., 78 Va. 501 ; 1885, Belfast, etc., R. Co. v. Belfast, 77 Maine 445 ; 1890, Camp- 
 bell v. American Z. Co., 122 N. Y. 455, 11 L. R. A. 596; 1890, Bamjam v. 
 Bard, 134 U. S. 291 ; 1891, Re Dicido Pier Co., L. R. 2 Ch. Div. 354 ; 1891, Eich- 
 baurn v. City of Chicago Grain Elevators, L. R. 3 Ch. Div. 459 ; 1895, Higgins v. 
 Lansingh, 154111.301; 1897, Andrews v. Gas Meter Co., 76 L. T. R., 132, 
 overruling Hutton v. Scarborough C. H. Co., supra', 1898, Ernst v. Elmira M. 
 I. Co., 54 N. Y. S. 116, 24 Miscl. (N. Y.) 583. 
 
 Majority of members can not, without express legislative authority, and with- 
 out consent of all the subscribers, after organization or subscription upon an 
 equal basis, convert a part of the shares into preferred. 1865, Hutton v. 
 Scarborough Cliff Hotel Co., 4 De G. J. & S. 672, 2 Drew & S. 514, 521 ; 1881, 
 Boardman v. L. S. & M. S. R., 84 N. Y. 157; 1890, Campbell v. American 
 Zylonite Co., 122 N. Y. 455; 1898, Ernst v. Elmira M. I. Co., 54 N. Y. Sup. 
 116, 24 Miscl. 583. 
 
 But it has also been held that express legislative authority will make 
 such issue valid, even against dissenting shareholders. 1857, Everhart v. 
 "Westchester, etc., R. Co., 28 Pa. St. 339; 1863, Rutland, etc., R. Co. v. Thrall, 
 35 Vt. 536; 1867, Curry v. Scott, 54 Pa. St. 270; 1875, Westchester, etc., R. 
 Co. v. Jackson, 77 Pa. St. 321 ; 1875, Totten v. Tison, 54 Ga. 139 ; 1897, Andrews 
 v. Gas Meter Co., 76 L. T. Rep. 132, overruling Hutton v. Scarborough Cliff 
 Hotel Co., 4 De G. J. & S. 672, and 2 Drew & S. 514, 521. 
 
 But upon the other hand, it seems that neither statutory nor charter au- 
 thority is necessary, if the preferred stock is issued (under a power to in- 
 crease or complete an authorized issue) by the unanimous consent of the exist- 
 ing shareholders. Havemayer v. Bordeaux Co., 8 National Corp. Rep. 127; 
 1895, Higgins v. Lansingh, 154 111. 301; 2 Beach Corp., 808; 1 Morawetz, 
 464.
 
 794 JOHNS V. JOHNS. 213 
 
 Sec. 213. Shares of stock Nature of. 
 ( I ) Personal property. 
 
 JOHNS v. JOHNS. 1 
 1853. IN THE SUPREME COURT OF OHIO, i Ohio St. 350362. 
 
 This is a petition in which the plaintiff, the widow of Benjamin 
 Johns, deceased, claims dower in forty-six shares of the capital stock 
 of "The Mansfield and Sandusky City Railroad Company" and in ten 
 shares of the capital stock of "The Ohio and Pennsylvania Railroad 
 Company," of which shares her deceased husband, the said Benjamin 
 Johns, was the owner at the time of his death. 
 
 The defendant, Sherman, as executor as aforesaid, answers, ad- 
 mitting the facts alleged in the petition, but insisting that said shares 
 are personal and not real estate. 
 
 THURMAN, J. * * * Turning, then, to the charter of the com- 
 pany, we find in it no provision declaring whether its stock is realty 
 or personalty. We are thus brought to the general question, whether 
 railroad shares in Ohio are, in the absence of express legislative enact- 
 ment, to be considered as real or personal estate. This question must 
 be determined by a reference to the principles of the common law 
 and the general statutes of the state that have a bearing upon it. 
 And its solution is not without difficulty, for as to the common law 
 the adjudicated cases are directly conflicting, and when we resort to our 
 statutes the chief aid we derive is from analogies and inference. 
 
 In Drybutter v. Bartholomew, decided in 1723, 2 P. Wms. 127, the 
 master of the rolls said that: "a fine may be, and usually is, levied of 
 New River shares by the description of so much land covered with 
 water," but the case does not inform us what these shares were, nor 
 how they were created; and whether they were real or personal 
 estate was not discussed. They appear to have had their origin in 
 the statutes of 3 James -i, ch. 18, and 4 James i, ch. 12, to enable 
 the mayor, commonalty and citizens of London to supply the city 
 with water; but these acts simply authorize the construction of the 
 works and the acquisition of the necessary right of way. They create 
 no stock, nor is any mention made in them of shares or shareholders. 
 Yet it would seem from the case cited, as well as the case of Town- 
 shend v. Ash, decided in 1745, 3 Atkyns 336, that shares were created, 
 and hence these cases have been frequently cited as showing that stock 
 in a water-works company is real estate. 
 
 By a statute of 10 Anne, the mayor, aldermen and common council 
 of the city of Bath, their successors or assigns, or such persons as they 
 should appoint, were authorized to improve the navigation of the 
 river Avon, and to charge tolls on persons and property transported 
 thereon. By an agreement executed between the corporate authorities 
 
 1 Only part of opinion is given.
 
 213 NATURE OF SHARES OF STOCK. 795 
 
 of the one part, and the Duke of Beaufort and several other persons 
 on the other part, the duke and his associates undertook to do the 
 work in consideration of being allowed to take the tolls. By the nth 
 article of the agreement it was provided that "no survivorship shall at 
 any time take place between the said parties and undertakers; but if 
 any or either of them shall happen to .die, the share or part of such so 
 dying, shall descend and go to the heirs and assigns of the party or 
 parties so dying." 
 
 In Buckeridge v. Ingram, decided in 1795, 2 Ves. Jr. 651, the 
 question was directly made whether these shares were personal or real 
 estate, and it was decided that they were real estate and subject to 
 dower. The master of the rolls held that the right to take tolls was 
 an incorporeal hereditament arising out of realty, and was therefore a 
 "tenement." 
 
 And he remarked: "I have no difficulty in saying, that wherever 
 a perpetual inheritance is granted, which arises out of lands, or is in 
 any way connected with, or, as it is emphatically expressed by Lord 
 Coke, exerciseable within it, it is that sort of property the law denom- 
 inates real." 
 
 The principle of these cases was followed, and possibly extended, 
 by the supreme court of Connecticut in 1818, in the case of Welles v. 
 Cowles, 2 Conn. 567, in which it was held that shares of an incorpo- 
 rated turnpike company are real estate. The right to the tolls, said 
 the court, "is a right issuing out of real property, annexed to and ex- 
 erciseable within it ; and comes within the description of an incorpo- 
 real hereditament of a real nature, on the same principle as a share in 
 the New River, in canal navigations and tolls of fairs and markets;" 
 citing Drybutter v. Bartholomew, 2 Peere Williams 127, Habergham 
 v. Vincent, 2 Ves. Jr. 232, and The King v. The Inhabitants of Chip- 
 ping Norton, 5 East 239. 
 
 And in answer to the argument that the individual stockholders had 
 only a claim on the company, and not upon the realty, and that this 
 must be of a personal nature, the court said: "But the stockholders, 
 as members of the'company, are owners of the turnpike road ; and it 
 is in virtue of this interest that they have their claims for the divi- 
 dends, or their respective shares of the toll. It is not a mere claim on 
 the corporation." 
 
 This decision was recognized as law in 1822, in a suit between the 
 same parties, 4 Conn. 182, though the question was not expressly 
 made. 
 
 In 1835 the supreme court of Pennsylvania held that "a toll bridge 
 erected by two individuals across a river between their lands by legis- 
 lative authority is real estate." The court said that the right was 
 "not only a right arising out of the soil, but so far as the abutments 
 of the bridge are concerned, it is the soil itself." Hurst v. Meason, 
 4 Watts 346. It is to be observed, however, that it does not appear 
 that the builders were incorporated. 
 
 In Price v. Price's Heirs, 6 Dana 107, the court of appeals of Ken- 
 tucky, in 1838, held that the stock in the Lexington and Ohio Rail-
 
 796 JOHNS V. JOHNS. 213 
 
 road Company is real estate. Without citing any adjudicated case, 
 the court came to a conclusion which is thus expressed: "The right 
 conferred on each shareholder is unquestionably an incorporeal 
 hei'editament. It is a right of perpetual duration, and though, it 
 springs out of the use of personalty, as well as lands and houses, this 
 matters not. It is a franchise which has ever been classed in that class 
 of real estate denominated an incorporeal hereditament." 
 
 On the other hand, the supreme court of Massachusetts, in 1798, in 
 Russell et al. v. Temple and Others, 3 Dane's Abr. 108, held that 
 shares in incorporated bridge and canal companies are personalty. The 
 case was between the widow and heirs of Thomas Russell, the 
 former contending that the shares were personal property, and that, 
 consequently, she was entitled to a distributive portion of them, and 
 the latter insisting that they were realty, and that, therefore, she had 
 but a dower estate. The question was very fully discussed, and was 
 decided (says Professor Greenleaf in his edition of Cruise) "upon 
 great consideration." 
 
 "For the heirs it was urged that these shares were real estate, be- 
 cause, it was said, the estates were real in the corporations, and that 
 if the estates in the corporation were real, the estates of the individual 
 members in them followed their nature and were real, and that the 
 frequent declarations of the legislature declaring such shares personal 
 estate, at least show a doubt that when one has a right to receive rent 
 he has only a right to receive a sum of money, yet it does not follow 
 that his estate is not real estate out of which his rent issues." 
 
 For the widow it was argued that the shares were personalty, because 
 the estate (in the bridges, canals, towing-paths, wharves and lands) 
 "can only exist in the corporation, which alone can acquire it, alone 
 be seized or possessed of it, alone pass it away, manage or repair it, 
 and so must hold it entire, and that the corporation is a moral person 
 to all purposes of property. Its tenure is to their successors, or to 
 their successors and assigns. The estates can never vest in or be 
 divided among the individual members to hold as tenants in common, 
 etc., in their private capacities. Only the corporation can possess the 
 estate, and that only by possessing the charter, and only the corpora- 
 tion can be taxed for it on common-law principles, and on these can 
 it alone be taken in execution for the debts of the corporation." 
 
 "That the share is personal estate, though the corporation hold real 
 estate, for the individual member has no estate, but only a right to 
 such dividends as the corporation from time to time assigns to him. 
 He is unknown in the grants made to it, and he can not grant any 
 part of the estate ; nor can he be taxed for it but by statute law ; nor can 
 any private member of a corporation be distrained for a public con- 
 cern of it; his only remedy for his dividend is case in assumpsit, or 
 an action on the case for a wrongful refusal or neglect to pay or allow 
 him his part of the profits." 
 
 The judgment of the court was, as I have stated, that the shares 
 were personal estate. "The principal reason of the decision," says 
 Dane, "appears to be because the court considered that the individual
 
 213 NATURE OF SHARES OF STOCK. 797 
 
 member, or shareholder, had only a right of action for a sum of money, 
 his part of the net profits or dividends. And so the law has been 
 held to be since this decision was made." 
 
 In his edition of Cruise, Greenleaf says: "Shares in the property 
 of a corporation are real or personal property, according to the nature, 
 object and manner of the investment. Where the corporate powers 
 are to be exercised solely in land, as where original authority is given 
 by the charter to remove obstructions in a river and render it naviga- 
 ble, to open new channels, etc., to make a canal, erect water-works, 
 and the like, as was the case of the New River water, the navigation 
 of the river Avon and some others, and the property or interest in the 
 land, though it be an incorporeal hereditament, is vested inalienably 
 in the corporators themselves, the shares are deemed real estate. 
 Such, in some of the United States, has been considered the nature 
 of shares in toll bridge, canal and turnpike corporations by the com- 
 mon law; though latterly it has been thought that railway shares 
 were more properly to be regarded as personal estate. But where 
 the property originally entrusted is money, to be made profitable to 
 the contributors by applying it to certain purposes, in the course of 
 which it maybe invested in lands or in personal property, and changed 
 at pleasure, the capital fund is vested in the corporation, and the 
 shares in the stock are deemed personal property, and as such are in 
 all respects treated. In modern practice, however, shares in corpo- 
 rate stock, of whatever nature, are usually declared by statute to be 
 personal estate." i Greenleaf's Cr. Dig. 39, 40. 
 
 In support of this statement, Mr. Greenleaf cites the cases we have 
 already noticed, and some others that require consideration. One of 
 the most important of these is Blighv. Brent, 2 Y. & C. Exch. Rep. 
 268, 294. It involved the question whether the shares in the Chelsea 
 Water- Works Company were realty or personalty. The act of incor- 
 poration left the question open, as it contained no declaration upon 
 the subject. The court reviewed the cases bearing upon it, and came 
 to the conclusion that the shares were personalty. This decision was 
 afterwards, in 1838, spoken of with approbation in Bradley v. Holds- 
 worth, 3 M. & W. 422. 
 
 In the latter case the question was whether shares in the "London 
 and Birmingham Railway" might be sold by a verbal contract. On 
 the part of the defendant it was contended that they constituted an 
 interest in land within the meaning of the statute of frauds, and that, 
 therefore, a contract for their sale was void unless reduced to writing. 
 The court held the contract valid. True, the act of incorporation 
 declared that the shares should, to all intents and purposes, be deemed 
 personal estate and transmissible as such, and should not be of the 
 same nature of real property; but it is evident from what was said, 
 that, independent of this provision, the same decision would have 
 been made. Parke. B.,said: "No doubt the company are seized 
 of real property, as well as possessed of a great deal of personal 
 property; but the interest of each individual shareholder is a stiare 
 of the net produce of both -when brought into one fund." And
 
 798 JOHNS v. JOHNS. 213 
 
 again: "I have no doubt whatever that the shares of the proprietors, 
 as individuals, are personalty ; they consist of nothing more than a 
 right to have a share of the net produce of all the property of the 
 company." 
 
 Alderson, B., said: "All the cases were under review in Bligh 
 v. Brent, where the- question was as to the shares in the Chelsea Water- 
 Works Company. That was a stronger case than the present because 
 there was no clause of this kind in the act of parliament, and yet the 
 shares were held personal property." ; 'I conceive that all the share- 
 holders would take even without such a clause." 
 
 Bolland, B., concurred. 
 
 So, in Duncuft v. Albrecht, 12 Simons & Stewart 189, it was held 
 that a pai'ol agreement for the sale of railway shares is valid, for they 
 are neither an interest in lands, nor goods, wares or merchandise, 
 within the statute of frauds. 
 
 A careful examination of the adjudications upon the subject has 
 brought us to the conclusion that, according to the weight of authority, 
 the shares in question are personal property. In the early English 
 cases the distinction, now well understood, between the property of a 
 corporation and the rights of its members, does not seem to have been 
 taken, and it appears to have been assumed that each shareholder had 
 an estate in the corporate property, and that, consequently, if that 
 property was real, his share was also realty. But the cases we have 
 cited abundantly show that the distinction above mentioned is now 
 fully recognized in England, and that the property of a corporation 
 may be mainly, if not wholly, real, and yet the shares of its members 
 be personalty. * * * 
 
 In whatever way we view the case, whether upon adjudication, 
 reason, or our statute laws, we arrive at the conclusion that the shares 
 in question are personal property. The bill must therefore be dis- 
 missed. 
 
 Bill dismissed. 
 
 Note. Many early cases held shares in corporations owning real property 
 to be real property. Some of these were followed in this country, as shown 
 by the above case: 1723, Drybutter v. Bartholomew, 2 P. Wms. 127; 1745, 
 Townsend v. Ash, 3 Atk. 336; 1786, King v. Dock Co., 1 T. R. 219; 1818, 
 Welles v. Cowles, 2 Conn. 567 (this case led to a statute declaring shares to 
 be personal property) ; 1831, Coombs v. Jordan, 3 Bl. Ch. (Md.) 284, 22 Am. 
 Dec. 236; 1838, Price v. Price, 36 Ky. (6 Dana) 107; 1870, Copeland v. Cope- 
 land, 70 Ky. (7 Bush) 349 (after which holding the legislature changed the 
 rule there by statute, declaring shares to be personal property). 
 
 The great" weight of authority, even from early times, holds shares to be 
 personal property: 1781. Weekley v. Weekley, 2 Younge & Col. Exch., p. 281, 
 note; 1798, Russell v. Temple, 3 Dane's Abr. 108; 1812, Cooper v. Swamp 
 Canal Co., 6 N. C. (2 Murph.) 195; 1830, Blake v. Jones. Bailey's Eq. (S. C.) 
 141, 21 Am. Dec. 530; 1836, Bligh v. Brent, 2 Younge &'Col. Exc. 268; 1837, 
 Arnold v. Ruggles, 1 R. I. 165; 1843, North v. Forest, 15 Conn. 400; 1849, 
 Slaymaker v. Bank of Gettysburg, 10 Pa. St. 373; 1854, Watson v. Spratley, 
 10 Ex. 222, 24 L. J. Ex. 53 ; 1855, Edwards v. Hall, 25 L. J. Ch. 82, 35 E. L. 
 & Eq. 433; 1856, Walker v. Bartlett, 18 C. B. 845, 25 L. J. C. P. 263; 1865, 
 McKeen v. Northampton Co., 49 Pa. St. 519, 88 Am. Dec. 515; 1869, South- 
 western R. Co. v. Thomason, 40 Ga. 408; 1881, Manns v. Brookville National
 
 214 NATURE OF SHARES OF STOCK. * 799 
 
 Bank, 73 Ind. 243 ; 1884, Feckheimer v. National Exchange Bank, 79 Va. 80; 
 1886, Colonial Bank v. Whinney, 66 L. J. Ch. 43, 11 App. Cas. 426 ; 1890, 
 Mattingly v. Roach, 84 Cal. 207, 23 Pac. Rep. 1117; 1897, Jellenik v. Huron 
 C. M. Go., 82 Fed. Rep. 778; 1899, Herring v. Ruskin Co-op. Assn., Tenn. 
 Ch. App. , 52 S. W. Rep. 327. 
 
 Sec. 214. Same. Statute of frauds. 
 (2) "Goods, wares or merchandise." 
 
 TISDALE v. HARRIS. 1 
 
 1838. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 
 20 Pick. (Mass.) 9-14. 
 
 [Assumpsit by Tisdale against Harris on 1 an oral contract by which 
 defendant agreed to sell plaintiff two hundred shares, with all the 
 earnings thereon, in the capital stock of a manufacturing company. 
 The object was to recover $300, being the amount of dividends 
 declared on the shares after the agreement to sell.] 
 
 SHAW, C. J. * * * But by far the most important question in 
 the case arises on the objection that the case is within the statute of 
 frauds. This statute, which is copied precisely from the English 
 statute, is as follows: "No contract for the sale of goods, wares or 
 merchandise for the price of ten pounds ($33-33) or more, shall be 
 allowed to be good, except the purchaser shall accept part of the 
 goods so sold, and actually receive the same or* give something in 
 earnest to bind the bargain, or in part payment, or that some note or 
 memorandum in writing of the said bargain be made and signed by 
 the parties to be charged by such contract or their agent thereunto 
 lawfully authorized." 
 
 This being a contract for the sale of shares in an incorporated com- 
 pany in a neighboring state for the price of more than ten pounds, and 
 no part having been delivered and no purchase-money or eai'nest paid, 
 the question is, whether it can be allowed to be good without a note 
 or memorandum in writing signed by the party to be charged with it. 
 This depends upon the question whether such shares are goods, wares 
 or merchandise within the true meaning of the statute. 
 
 It is somewhat remarkable that this question, arising on the St. 29 
 Car. 2, in the same terms, which ours has copied, has not been defi- 
 nitely settled in England. In the case of Pickering v. Appleby, 
 Com. Rep. 354, the case was directly and fully argued before the 
 twelve judges, who were equally divided upon it. But in several other 
 cases afterward determined in chancery, the better opinion seemed to 
 be that shares in incorporated companies were within the statute, as 
 goods or merchandise. Mussell v. Cooke, Prec. in Ch. 533 ; Crull v. 
 Dodson, Sel. Cas. in Ch. 41. 
 
 1 Statement abridged ; arguments and part of opinion omitted.
 
 8OO TISDALE V. HARRIS. 214 
 
 We are inclined to the opinion that the weight of authorities in 
 modern times is, that contracts for the sale of stocks and shares in 
 incorporated companies for more than ten pounds are not valid unless 
 there has been a note or memorandum in writing, or earnest or part 
 payment. 4 Wheaton 89, note; 3 Starkie on Evid.,4th Amer. edit., 
 608. 
 
 Supposing this a new question now for the first time calling for a 
 construction of the statute, the court ai'e of opinion that, as well by its 
 terms as its general policy, stocks are fairly within its operation. The 
 words "goods" and "merchandise" are both of very large significa- 
 tion. Sona, as used in the civil law, is almost as extensive as per- 
 sonal property itself, and in many respects it has nearly as large a 
 signification in the common law. The word "merchandise" also, 
 including in general, objects of traffic and commerce, is broad enough 
 to include stocks or shares in incorporated companies. * *. * 
 
 The main argument relied upon by those who contend that shares 
 are not within the statute is this: That statute provides that such con- 
 tract shall not be good, etc., among other things, except the purchaser 
 shall accept part of the goods. From this it is argued that by neces- 
 sary implication the statute applies only to goods, of which part may 
 be delivered. This seems, however, to be rather a narrow and forced 
 construction. The provision is general that no contract for the sale 
 of goods, etc., shall be allowed to be good. The exception is when 
 part are delivered ; but if part can not be delivered, then the exception 
 can not exist to take the case out of the general prohibition. The pro- 
 vision extended to a great variety of objects, and the exception may 
 well be construed to apply only to such of those objects to which it is 
 applicable, without affecting others, to which from their nature it can 
 not apply. 
 
 There is nothing in the nature of stocks, or shares in companies, 
 which in reason or sound policy should exempt contracts in respect to 
 them from those reasonable restrictions, designed by the statute to 
 prevent frauds in the sale of other commodities. On the contrary, 
 these companies have become so numerous, so large an amount of the 
 property of the community is noiv invested in them, and as the or- 
 dinary indicia of property, arising from delivery and possession, 
 can not take place, there seems to be peculiar reason for extending 
 the provisions of this statute to them. As they may properly be in- 
 cluded under the terms goods, as they are -within the reason and pol- 
 icy of the act, the court are of opinion that a contract for the 
 sale of shares, in the absence of the other requisites, must be proved 
 by some note or memorandum in -writing ; and as there was no such 
 memorandum in writing, in the present case, the plaintiff is not en- 
 titled to maintain this action. As to the argument that here was a 
 part performance, by a payment of the money on one side, and the 
 delivery of the certificate on the other, these acts took place after this 
 action was brought, and can not therefore be relied upon to show a 
 cause of action when the action was commenced 
 
 Verdict set aside and plaintiff nonsuit.
 
 215 NATURE OF SHARES OF STOCK. 8oi 
 
 Note. It is generally held in this country that sales of stock are within the 
 seventeenth section of the statute of frauds. See, as to the application of this and 
 other sections, the following cases : 1810, Colvin v. Williams, 3 Har. & J. (Md.) 
 38; 1843, North v. Forest, 15 Conn. 400; 1847, Thompson v. Alger, 53 Mass. (12 
 Mete.) 428; 1862, Hagar v. King, 38 Barb. (N. Y.) 200; 1872, Pray v. Mitchell, 
 60 Maine 430 ; 1873, Mayer v. Child, 47 Cal. 142 ; 1878, Mason v. Decker, 72 N. Y. 
 595; 1880, Boardman v. Cutter, 128 Mass. 388; 1884, Porter v. Worsmer, etc., 
 94 N. Y. 431 ; 1884, Fitzpatrick v. Woodruff, 96 N. Y. 561 ; 1888, Hinchman v. 
 Lincoln, 124 U. S. 38; 1889. Seddon v. Rosenbaum, 85 Va. 928; 1891, Ryers v. 
 Tuska, 14 N. Y. Sup. 926; 1892, Spear v. Bach, 82 Wis. 192; 1893, Dinkier v. 
 Baer, 92 Ga. 432; 1895, McLure v. Sherman, 70 Fed. Rep. 190; 1895, Flowers 
 v. Steiner, 108 Ala. 440. 
 
 But in England the rule is different: See, 1839, Humble v. Mitchell, 11 
 Ad. & El. 205; 1841, Duncuft v. Albrecht, 12 Sim. Ch. 189; 1844, Hargreaves v. 
 Parsons, 13 Mees. & W. 561. 
 
 But the statute of frauds does not apply to agreements to subscribe : See, 
 note, supra, p. 459, and, 1871, Green v. Brookins, 23 Mich. 48; 1886, Colfax 
 Hotel Co. v. Lyon, 69 Iowa 683 ; 1898, Rogers v. Burr, 105 Ga. 432. 
 
 The fourth section of the statute of frauds relating to conveyances of inter- 
 ests in lands does not apply to sales of corporate shares, even if the corpora- 
 tion owns and deals in land : 1839,- Humble v. Mitchell, 11 Ad. & E. 205 ; 1836, 
 Bligh v. Brent, 2 Y. & C. Exc. 268. 
 
 Sec. 215. Same. 
 
 (3) Choses in action. 
 
 COLONIAL BANK v. WHINNEY. 1 
 
 1885. IN ENGLISH COURT OF APPEAL. L. R. 30 Ch. Div. 
 
 261-290. 
 
 [Suit by the bank to enforce an equitable mortgage of shares in a 
 railway company against Whinney, who was a trustee in bankruptcy 
 of the person in whose name the shares stood at the commencement 
 of the bankruptcy. The English bankrupt law provided that "all 
 goods in the possession, order or disposition of the bankrupt" should 
 pass to the trustee in bankruptcy, "provided that things in action, 
 other than debts due the bankrupt, shall not be deemed goods within 
 the meaning" of this law. Under this provision the majority of the 
 court held that the shares were not choses in action within the mean- 
 ing of the proviso; but Fry, L. J., pronounced the following dissent- 
 ing opinion, which was affirmed in the house of lords, n App. Cas. 
 426.] 
 
 FRY, L. J. One of the questions argued before us on the present 
 appeal has been, whether the shares in question in this case are or are 
 not choses in action, within the meaning of those words as used in 
 the 3d subsection of the 44th section of the Bankruptcy Act 1883. 
 
 1 Statement abridged. Only the dissenting opinion of Fry, L. J., is given 
 (a part of it being omitted). The majority opinion was overruled upon this 
 point, and Fry's opinion unanimously affirmed by the house of lords, in 1886. 
 The Colonial Bank v. Whinney, L. R. 11 App. Cas. 426. 
 
 51 WIL. CASES.
 
 802 COLONIAL BANK V. WHINNEY. 21$ 
 
 The shares in question are shares in a company constituted by act 
 of parliament, which incorporates the Companies Clauses Consoli- 
 dation Act, and that act declares that shares are personal property, 
 transmissible as such, and furthermore provides for the transfer of the 
 shares by deed in a specified manner. 
 
 The first question is whether, according to the ordinary legal mean- 
 ing of the words "things in action," which I take to be technical 
 words, they include such shares as those in controversy. This leads 
 to the consideration of some very elementary points in English law. 
 According to my view of that law, all personal things are either in 
 possession or in action. The law knows no tertium quid between the 
 two. "No chattel," says Lord Coke, in Fulwood's Case, 4 Rep. 
 65^, "either in action or possession, shall go in succession," as if the 
 two alternatives were the only possible ones. "Property in chattels 
 personal," says Blackstone, "maybe either in possession which is 
 where a man hath not only the right to enjoy, but hath the actual en- 
 joyment of the thing or else it is in action, where a man hath only 
 a bare right without any occupation or enjoyment." Bl. Comm., 
 book 2, ch. 25, p. 389, and so Lord Hardwicke, in the great case of 
 Ryall v. Rolle, i Atk. 165, 182, speaks of personal property, whether 
 in possession or action only, as equivalent to all kinds of personal 
 property. The expression ''choses in suspense" is found in Brooke's 
 Abridgement, in conjunction with choses in action; but, so far as I 
 can understand, the two expressions are synonymous. 
 
 It has been suggested that the expression ' 'choses in action" was orig- 
 inally only applicable to debts, and that by a lax usage it has acquired 
 a secondary and wider significance. I am not able to adopt this view. 
 The article ''Choses in Action and Choses in Suspense" in Brooke's 
 Abridgement, fol. 140, seems to show that as early as 5 Edw. 4 the 
 expression was held to include the king's right to the marriage of his 
 ward ; m 9 Hen. 6 the property in deeds in the hands of a third per- 
 son was considered as a chose in action, and in 33 Hen. 8 the clas- 
 sification of choses in action into real, personal and mixed, was 
 recognized. Indeed, the whole article appears to me inconsistent 
 with the notion that according to early usage the expression was con- 
 fined to debts. On the contrary, that early usage appears to me to 
 have been as wide as the modern usage, as explained by Mr. Joshua 
 Williams in the passage which has been cited by Lord Justice Cotton. 
 
 What, then, is the character of a share in a company? Is it in its 
 nature a chose in possession or a chose in action? Such a share is, in 
 my opinion, the right to receive certain benefits from a corporation, 
 and to do certain acts as a member of that corporation ; and if those 
 benefits be withheld or those acts be obstructed, the only remedy of 
 the owner of the share is by action. Of the share itself, in my view, 
 there can be no occupation or enjoyment, though of the fruits arising 
 from it there may be occupation, enjoyment and manual possession. 
 Such a share appears to me to be closely akin to a debt, which is one 
 of the most familiar of choses in action ; no action is required to ob- 
 tain the right to the money in the case of the debt, or the right to the
 
 21$ NATURE OF SHARES OF STOCK. 803 
 
 dividends or other accruing benefits in the case of the share; but an 
 action is the only means of obtaining the money itself or the other 
 benefits in specie, the right to which is called in one case a debt and 
 in the other case a share. In the case alike of the debt and of the 
 share, the owner of it has, to use the language of Blackstone, "a bare 
 right without any occupation or enjoyment." A debt no doubt dif- 
 fers from a share in one respect, that it confers generally a more lim- 
 ited right than a share, and that when once paid it is at an end ; but 
 this distinction appears to me immaterial for the purpose now in 
 hand. 
 
 It is true that unassignability by act inter vivos has been a charac- 
 ter of many choses in action in the earlier stages of our law ; but the 
 question whether a personal thing is or is not assignable, is not, in 
 my opinion, a criterion of whether it is in possession or in action. The 
 king has always been able to assign choses in action that are certain. 
 Bills of exchange have been assignable by our law ever since the law 
 merchant on that point was recognized by our courts hundreds of years 
 ago ; many choses in action have long been assignable by statute, such 
 as promissory notes and bail and replevin bonds, and by the Judicature 
 Act of 1873 all debts and other legal choses in action were made as- 
 signable in the manner therein indicated. With great deference to 
 those who think otherwise, I consider that the power of transfer con- 
 ferred on the holder of these shares by statute does not affect the 
 question. 
 
 Furthermore, on the question whether a particular property is a 
 chose in action or not, I think it immaterial to inquire whether the 
 right in question was formerly enforceable at law or in equity ; a right 
 of suit is equally a chose in action, whether the forum be legal or 
 equitable. 
 
 Turning now to authority, I find that in the case of Humble v. 
 Mitchell (1839), ii Ad. & El. 205, the question arose whether shares 
 in a joint stock company were goods, wares or merchandise within 
 the meaning of the seventeenth section of the statute of frauds ; and in 
 determining that they were not, Lord Denman observed that shares in 
 a joint stock company like this are mere closes in action ; and in this 
 judgment Justices Patteson, Williams and Coleridge concurred. 
 Again, in Ex parte Agra Bank (1868), Law Rep. 3,Ch. 555, a ques- 
 tion arose as to certain shares in the San Pedro Mining Company 
 being in the order and disposition of the bankrupt Worcester. Though 
 the precise constitution of the company is not stated, it appears that 
 the company was an English one, by which certificates of shares were 
 issued, and in which the shares passed by transfer; the case was ar- 
 gued and decided on the footing of these shares being choses in action 
 and they are so described in the judgment of Lord Hatherly, then 
 Lord Justice Page Wood. On the other hand, in the case of Ex 
 parteljnion Bank of Manchester ( 1871), Ibid. ,12 Eq. 354, Vice- 
 Chancellor Bacon held that shares in a -company under 7 and 8 Viet., 
 ch. no, were not choses in action within the meaning of the Bank- 
 ruptcy Act, 1869, partly upon the ground that if it had been intended
 
 804 PAYNE V. ELLIOT. 2l6 
 
 to exclude trom the operation of the law of reputed ownership every- 
 thing incapable of manual delivery, a clearer term would have been 
 used, and partly on the ground that the owner's title depended on the 
 register. And again, in Societe Generale de Paris v. Tramways Union 
 Company, 14 Q. B. D. 424, 451, Lord Justice Lindley approved of 
 the decision of the vice-chancellor, and dwelt upon the fact that a 
 transferee of shares has a legal and not merely an equitable right to- 
 become a shareholder. 
 
 In this conflict of authorities upon the precise point, it is not use- 
 less to consider the authorities bearing on personal things of a kind 
 closely analogous to shares in a company. The right of a fund-holder 
 in the public funds, where there is, of course, a legal power to assign r 
 has long ago (1790, 1817) been held to be a chose in action. Dundas 
 v. Dutens, i Ves. 196; Rex v. Capper, 5 Price 217. In Ex parte 
 Ibbetson (1878), 8 Ch. D. 519, the court of appeal held a policy of 
 assurance to be beyond all argument a thing in action within the 
 meaning of the clause in question ; and in In re Bainbridge, 8 Ch. 
 D. 218, Chief Judge Bacon held that the share of a partner in the 
 partnership property was a chose in action. If it be rightly decided, 
 as I think it was, that a share in a partnership is a chose in action, it 
 is very difficult to conclude that a share in a joint-stock company is 
 not a chose in action. In the case of a partnership, the real and per- 
 sonal property of the partnership is, or may be, vested in all the 
 partners, and each therefore may have a legal interest in choses in 
 Possession. In the case of a corporation, the whole property of the 
 concern is vested in the corporation, and the individual corporators 
 have no direct interest in the chattels in possession which may belong 
 to the concern. In a partnership of seven persons, each would have 
 a chose in action; if that partnership incorporated itself under the 
 Companies Act, 1862, would each of the seven have a chosein posses- 
 sion? * * * 
 
 Appeal dismissed. 
 
 Note. See, 1830, Blake v. Jones, 1 Bailey Eq. (S. C.) 141, 21 Am. Dec. 530; 
 1837, Arnold v. Buggies, 1 R. I. 166 ; 1849, Slaymaker v. Bank of Gettysburg, 
 10 Pa. St. 373. 
 
 Sec. 216. Same. 
 
 (4) As subjects of conversion. 
 
 PAYNE v. ELLIOT ET. AL. 
 
 1880. IN THE SUPREME COURT OF CALIFORNIA. 54 Cal. Rep. 
 339-344* 35 Am - Re P- 8o - 
 
 Appeal from judgment for plaintiff in the court below. 
 McKEE, J. This is an action of trover. The plaintiff seeks to 
 charge defendants with $2, 796*. 3 2 and costs for an alleged conversion 
 
 1 Arguments and part of opinion omitted.
 
 2l6 NATURE OF SHARES OF STOCK. 805 
 
 of one hundred shares of the stock of the "Northern Belle Mill and 
 Mining Company," and also to have them adjudged guilty of fraud. 
 The complaint was demurred to on several grounds, and the demurrer 
 overruled. Defendants afterward answered, and, upon a trial, had in 
 the absence of defendants and their attorneys, the court gave judg- 
 ment for the plaintiff for the amount sued for, in gold coin, and also 
 adjudged that the defendants were guilty of fraud. The appeal comes 
 to this court upon the judgment roll, and the appellants claim that the 
 lower court erred in overruling defendants' demurrer to the complaint 
 upon the grounds that there is no allegation that the plaintiff owned 
 or that the defendants converted any certificates of shares of stock, 
 and that the allegation of fraud is insufficient to sustain the judgment 
 that the defendants were guilty of fraud in the supposed conversion. 
 The principal question is, whether shares of stock, eo nomine, are 
 property for which an action, in the nature of an action of trover,- can 
 be maintained. 
 
 At common law trover was the proper remedy for a conversion of 
 personal property ; but it lay only for tangible property, capable of 
 being identified and taken into actual possession. The conversion of 
 the property was the gist of the action ; and the action did not lie, 
 unless the defendant had become actually possessed of the property 
 by some means, whether of finding or otherwise. Shares of stock, 
 and such things, did not belong to that class of property known as 
 chattels ; they -were considered incorporeal, intangible things "which 
 existed in idea, and -were incapable of being subjected to actual pos- 
 session. Nor "were they stipposed to denote possession, for they had no 
 other evidence of an existence than the certificate which ivas issued to 
 the person who claimed the right to -what the certificate represented. 
 That right consists of the privilege of voting in the concerns of the 
 corporation, and of participating in the profits of the business of the 
 corporation. It subsisted only in law or contract. It was a right to 
 a thing not in possession, but in action. The certificates themselves 
 were not considered property , but were considered evidence of prop- 
 erty. Wherever common-law ideas of personal property prevail, 
 courts hold that trover is not the proper remedy for the conversion of 
 things which were considered at common law as mere personal rights, 
 not reducible into possession, but recoverable by law. So the supreme 
 court of Pennsylvania has held that trover will not lie to recover dam- 
 ages for shares of bank stock; and, says Justice Sharswood, "the 
 principle applies to all other corporation stocks." A share of stock, 
 says the court, "is an incorporeal, intangible thing. It is a right to a 
 certain proportion of the capital stock of a corporation never realized 
 except upon the dissolution and winding up of the corporation with 
 the right to receive in the meantime such profits as may be made and 
 declared in the shape of dividends. Trover can no more be main- 
 tained for a share in the capital stock of a corporation than it can for 
 the interest of a partner in a commercial firm." (Neiller v. Kelly, 
 69 Pa. 407.) 
 
 Upon the idea that shares of stock can not be taken away or wrong-
 
 806 PAYNE V. ELLIOT. 2l6 
 
 fully detained from the owner, or that they can not be lost by the 
 owner or found by a stranger, there is no doubt of the soundness of 
 that decision. But the fiction on which the action of trover was 
 founded, namely, that a defendant had found the property of another, 
 which was lost, has become in the progress of law an unmeaning 
 thing, which has been by most courts discarded, so that the action no 
 longer exists as it did at common law, but has been developed into a 
 remedy for the conversion of every species of personal property. It 
 lies for bank notes sealed in a letter (Moody v. Keeney, 7 Ala. 218) ; 
 for negotiable instruments (Comparet v. Burr, 5 Blackf. 419) ; for a 
 judgment (Hudspeth v. Wilson, 2 Dev. N. C. 372); for a promis- 
 sory note which has been paid (Pierce v. Gibson, 9 Vt. 216) ; for 
 copies of a creditor's account (Fulton v. Cunningham, 16 Vt. 697) ; 
 for a writ of execution issued on a judgment (Keeler v. Fassett, 
 21 Vt. 539)? and for certificates of shares of stock (Anderson v. 
 Nicholas, 28 N. Y. 600 ; Atkins v. Gamble, 42 Cal. 98 ; Von Schmidt 
 v. Bourne, 50 Cal. 616). 
 
 At the same time that the action has been thus expanded the words 
 "things in action" have undergone such a development from their 
 original meaning that they now represent things to the imagination in 
 the light of tangible objects, and as such they are the subject of con- 
 tract, sale, gift, mortgage, bailment and pledge; and, under the pro- 
 visions of our codes, they are personal property, subject to taxation, 
 attachment, execution, levy and sale. (Sections 542, 688, Code Civ. 
 Proc.) 
 
 It is, therefore, the "shares of stock" which constitute the property 
 which belongs to the shareholder. Otherwise, the property would be 
 in the certificate; but the certificate is only evidence of the property ; 
 and it is not the only evidence, for a transfer on the books of the cor- 
 poration, -without the issuance of a certificate, vests title in the share- 
 holder ; the certificate is, therefore, but additional evidence of title, 
 and if trover is maintainable for the certificate, there is no valid 
 reason why it is not also maintainable for the thing itself -which the 
 certificate represents. For, as the supreme court of Connecticut says, 
 "If a certificate of stock is unlawfully retained when demanded, what 
 is presumed to have been converted ? The certificate has no intrinsic 
 value disconnected from the stock it represents. No one would say 
 that the paper alone had been converted that the conversion of the 
 paper constitutes the entire wrong. The real act done in such cases 
 is precisely the same as that done here no more, no less; and to say 
 that trover will lie in one case and not in the other, is to make a dis- 
 tinction where in reality there is no difference. * * * The stock 
 in both cases was converted; and we think that in these days, when 
 the tendency of courts is to do away with technicalities not based 
 upon reason, a technical distinction of this character should no longer 
 be sustained." (Ayres v. French, 41 Conn. 151.) In Boylan v. 
 Hagnel, 8 Nev. 352, and in Kuhn v. McAllister, i Utah 275, actions 
 of this character for "shares of stock" were sustained. It follows 
 that the court below did not err in overruling the demurrer to the com-
 
 217 NATURE OF SHARES OF STOCK. 807 
 
 plaint, or in rendering judgment for the plaintiff for the value of the 
 stock and interest thereon from the time of the conversion until the 
 time of the trial. * * * 
 
 Judgment modified and affirmed. 
 
 Note. As to conversion of stock see, 1821, Kingman v. Pierce, 17 Mass. 
 247 (conversion of a note) ; 1830, Plymouth Bank v. Bank of Norfolk, 10 Pick. 
 (Mass.) 454; 1859, Freeman v. Harwood, 49 Maine 195; 1864, Anderson v. 
 Nicholas, 28 N. Y. 600; 1869, Morton v. Preston, 18 Mich. 60; 1873, Bank of 
 America v. McNeil, 73 Ky. (10 Bush) 54; 1874, Ayers v. French, 41 Conn. 
 142; 1875, 1877, Kuhn v. McAllister, 1 Utah 273, 96 U. S. 87; 1881, People v. 
 Williams, 60 Cal. 1 (shares may be embezzled); 1884, Union, etc., Bank v. 
 Farrington, 13 Lea (Tenn.) 333; 1884, Daggett v. Davis, 53 Mich. 35, 51 Am. 
 Rep. 91 ; 1885, Budd v. Multnomah, etc., R. Co., 12 Ore. 271,53 Am. Rep. 355; 
 1893, Gresham v. Island City, etc., Bank, 2 Texas Civ. App. 52; 1896, With- 
 ers v. Bank, 67 Mo. App. 115, on 120; 1896, Ralston v. Bank of California, 
 112 Cal. 208; 1899, Hine v. Com. Bank of Bay City, 119 Mich. 448,78 N. W. 
 Rep. 471. See, also, notes 52 Am. Dec. 73 ; 79 Am Dec. 506; 24 Am. St. Rep. 
 818. 
 
 But Pennsylvania seems to hold that nothing but the certificate is suscepti- 
 ble of conversion. 1828, Sewall v. Lancaster Bank, 17 S. & R. (Pa.) 285; 
 1871, Neiler v. Kelley, 69 Pa. St. 403; 1888, Telford and F. Turnpike Co. v. 
 Gerhab, 13 Atl. Rep. 90. 
 
 Sec. 217. Same. 
 
 (5) Negotiability of shares. 
 
 EAST BIRMINGHAM LAND CO. v. 
 
 1888. IN THE SUPREME COURT OF ALABAMA. 85 Ala. 565-569, 
 7 Am. St. Rep. 73, 26 Am. & E. C. C. 135. 
 
 [Appeal from decree in favor of Dennis, who sued one J. P. Mudd 
 and the land company, to compel the transfer of ten shares of stock 
 in the land company, of which Dennis claimed to be owner, and to 
 compel Mudd to deliver the certificate of which he had possession 
 under claim of ownership. The certificate had been issued to one 
 Dearborn, and was indorsed by him in blank. Dennis bought the cer- 
 tificate from one who purchased it from Dearborn ; afterward it was 
 lost or stolen, without the fault of Dennis. Mudd had purchased the 
 certificate for full value from stock brokers in Birmingham.] 
 
 SOMERVILLE, J. * * * The only question is, whether Mudd, 
 who paid full value for this stock, without notice of the complainant's 
 claim to it, acquired a title superior to that of complainant. 
 
 The established rule is, that no person can ordinarily be deprived 
 of his ownership of property save by his own consent, or his neg- 
 ligence. The only exception to this rule is the case of a bona Jide 
 purchaser for value of negotiable paper. We have no reference, of 
 course, to the taking of property for public uses by judicial condemna- 
 tion, which may be done without the owner's consent. 
 
 It can not be contended with any degree of plausibility that under 
 
 1 Arguments and part of opinion omitted. Statement abridged.
 
 8o8 EAST BIRMINGHAM LAND CO. V. DENNIS. 217 
 
 the facts of this case the complainant was guilty of negligence or 
 the want of ordinary care in the custody of the certificate. He kept 
 it in a box in the vault of a banking house, whence it was abstracted 
 by some unknown person, apparently without any fault on his part. 
 
 Nor does any question arise involving the rights of a subsequent 
 bona fide purchaser of stock, from one shown to be owner on the cor- 
 porate books, who has already made a prior unregistered transfer of 
 it to another purchaser. All such transfers made by the true owner, 
 and not registered on the books of the corporation within fifteen days, 
 are declared by statute to be "void as to bona fide creditors or pur- 
 chasers without notice.'' Code, 1886, 1671 ; Fisher v. Jones, 82 
 Ala. 117. If the defendant Mudd had claimed by a subsequent pur- 
 chase from Dearborn, the owner of the stock on the corporate books, 
 this question would arise. But he does not so claim, his title being 
 derived through the complainant Dennis himself, by two or more in- 
 termediate transferees, the first of whom was a fraudulent holder with- 
 out title. Whether Mudd's title to the stock, therefore, is superior to 
 that of Dennis, depends on whether a certificate of stock, indorsed in 
 blank by the owner, is to be treated as negotiable paper. 
 
 The rule is well settled that a bona fide purchaser of a negotiable 
 bill, bond or note, although he buys from a thief, acquires a good 
 title, if he pays value for it without notice of the infirmity of his 
 vendor's title. The authorities are clear in support of the view that 
 a certificate of corporate shares of stock, in the ordinary form, is not 
 negotiable paper, and that a purchaser of such certificate, although 
 indorsed in blank by the owner, where no question arises under the 
 registration laws, obtains no better title to the stock than his vendor 
 had, in the absence of all negligence on the part of the owner, or his 
 authority, to make the sale. This question arose, and was decided by 
 the New York Court of Appeals, in Mechanics' Bank v. New York 
 & New Haven R. Co., 13 N. Y. (1856) 599. It was there held that 
 such a certificate does not partake of the character of a negotiable 
 instrument, and that a bona fide assignee, with full power to transfer 
 the stock, takes the certificate subject to the equities which existed 
 against his assignor. Such certificates, said Comstock, J. , "contain 
 no words of negotiability. They declare simply that the person 
 named is entitled to certain shares of stock. They do not, like nego- 
 tiable instruments, run to the bearer, or order of the party to whom 
 they are given." They were said to be in some respects like a bill of 
 lading or warehouse receipt, being "the representative of property 
 existing under certain conditions, and the documentary evidence of 
 title thereto." The most that can be said is, that all such instru- 
 ments possess a sort of quasi-negotiability , dependent on the custom 
 of merchants and the convenience of trade. They are not, in the 
 matter of transferability , protected strictly as negotiable paper. 
 
 In Shaw v. Spencer, 100 Mass. 382; s. c., 97 Am. Dec., i Am. 
 Rep. 115 (1868), it was also decided that a certificate of corporate 
 stock, transferred in blank on its back, was clearly not a negotiable 
 instrument. "No commercial usage," it was said, "could give to
 
 217 NATURE OF SHARES OF STOCK. 809 
 
 such an instrument the attribute of negotiability. However many in- 
 termediate hands it may pass through, whoever would obtain a new 
 certificate in his own name must fill out the blanks, * * * so as 
 to derive title to himself directly from the last recorded stockholder, 
 who is the only recognized and legal owner of the shares." The case 
 of Sewall v. Boston Water Power Co., 4 Allen 282; s. c. 81 Am. 
 Dec. 701, decided by the same court a few years before, is referred 
 to as a precedent in support of this conclusion. 
 
 The precise point in the present case was also decided in Barstow 
 v. Savage Mining Co., 64 Cal. 388; s. c., 49 Am. Rep. 705, where 
 it was expressly held that a bona fide purchaser of stock standing on 
 the company's books in the name of the former owner, regularly in- 
 dorsed by him, and stolen from the present owner without his fault, 
 gets no title. The decision was based on the fact that such certifi- 
 cates are not negotiable instruments, but simply muniments of title, 
 and evidences of the holder's right to a given share in the property 
 and franchise of the corporation. It was observed, in regard to the 
 matter of negligence, as follows: "But if the purchaser from one 
 who has not the title, and has no authority to sell, relies for his pro- 
 tection on the negligence of the true owner, he mus 4 " show that such 
 negligence was the proximate cause of the deceit." 
 
 The same principle was applied to bills of lading, in Gurney v. 
 Behrend, 3 Ellis & Bl. 622, decided by the English Queen's Bench, 
 where an instrument of that kind, indorsed in blank by the consignor, 
 and sent by him to his correspondent, had been misappropriated. 
 The correspondent, without authority, fraudulently transferred the 
 bill for value ; and it was held by Lord Campbell, that for the want 
 of the element of negotiability in the paper, the title to the goods 
 was unaffected by the transaction. 
 
 The doctrine of Barstow v. Savage Mining Co., supra, is well sup- 
 ported by authority, and, in our judgment, announces a correct prin- 
 ciple of law, and we fully approve it. Woolley v. Sargeant, 14 
 Amer. Dec., note on page 427, and cases there cited; Cook on Stock 
 and Stockholders, 7, 10, 192, 368, 437; 2 Daniel's Neg. Inst. 
 (3d. ed.), 1708^". It harmonizes entirely with the declaration of 
 our statute, that shares of stock in private corporations "are personal 
 property, transferable on the books of the corporation" in accordance 
 with the rules and regulations of the corporation. Code 1886, 1669 ; 
 Campbell v. Woodstock Iron Co., 83 Ala. 451. 
 
 There is a class of cases, not to be confounded with the one in 
 hand, where the holder of such a certificate of stock indorsed in blank 
 is clothed with power, as agent or trustee, to deal with such stock to 
 a limited extent, and transfers it by exceeding his powers, or in breach 
 of his trust. In such cases it has often been held that the true owner, 
 having conferred on the holder, by contract, all the external indicia 
 of title, and an apparently unlimited power of disposition over the 
 stock, "is estopped to assert his title as against a third person, who, 
 acting in good faith, acquires it for value from the apparent owner."- 
 2 Dan. Neg. Inst. (3d ed.), 1708^; McNeil v. Tenth Nat. Bank, 46
 
 8 10 HALEY V. REID. 2l8 
 
 N. Y. 325 ; Mount Holly Turnpike Co. v. Ferree, 17 N. J. Eq. 117 ; 
 Prall v. Tilt, 28 N. J. Eq. 479 ; Merchants' Bank v. Livingston, 74 
 N. Y. 223. These cases rest on the principle that it is more just and 
 reasonable, where one of two innocent parties must suffer loss, that 
 he should be the loser who has put trust and confidence in the de- 
 ceiver than a stranger who has been negligent in trusting no one. 
 Allen v. Maury & Co., 66 Ala. 10. 
 
 It being an established principle of law that certificates of stock 
 are not to be regarded as negotiable paper, it is not permissible to 
 prove a custom or usage among stock brokers to the contrary. No 
 usage is good which conflicts with an established principle of law 
 any more than one which contravenes or nullifies the express stipula- 
 tions of a contract. Dickinson v. Gay, 83 Am. Dec. 656, and note, 
 664; E. T., Va. & Ga. R. Co. v. Johnston, 75 Ala. 576; Lehman v. 
 Marshall, 47 Ala. 362. 
 
 The decree of the court below is in accordance with these views r 
 and must be affirmed. 
 
 Note. While shares of stock are almost universally held to be non-nego- 
 tiable, yet they approach very nearly to having such qualities when they pass 
 by indorsement and delivery of the certificate. 1850, Harris v. Bank of Mo- 
 bile, 5 La. Ann. 538; 1856, Mechanic's Bank v. N. Y. & N. H. R., 13 N. Y. 
 599; 1857, Mandelbaum v. N. A. Min. Co., 4 Mich. 465; 1861, Bridgeport Bank 
 v. N. Y. & N. H. R., 30 Conn. 231 ; 1868, Shaw v. Spencer, 100 Mass. 382, 
 97 Am. Dec. 107, 1 Am. Rep. 115; 1870, Mechanic's Bank v. Merchants' Bank, 
 45 Mo. 513, 100 Am. Dec. 388; 1870, State v. Bank of State, 45 Mo. 528; 1871, 
 McNeil v. Tenth Nat'l Bank, 46 N. Y. 325, 7 Am. Rep. 341; 1871, First Na- 
 tional Bank v. Lanier, 11 Wall. (78 U.'S.) 369; 1873, Hall v. Rose H. & E. R. 
 Co., 70111.673; 1874, Bercich v. Marye, 9 Nev. 312; 1875, Sherwood v. Meadow 
 Val. M. Co., 50 Cal. 412 ; 1877, Weyer v. Second Nat'l Bank, 57 Ind. 198 ; 1883, 
 Barstow v. Savage Min. Co., 64 Cal. 388, 49 Am. Rep. 705; 1886, Young v. 
 South Tredegar Iron Co., 85 Tenn. 189, 4 Am. St. R. 752; 1887, Supply D. Co. 
 v. Elliott, 10 Colo. 327, 3 Am. St. Rep. 586; 1890, Hammond v. Hastings, 134 
 U. S. 401 ; 1892, Clark v. Am. Coal Co., 86 Iowa 436, 17 L. R. A. 557, 53 N. W. 
 Rep. 291; 1893, Brinkerhoff-Farris, etc., Co. v. Home L. Co., 118 Mo. 447; 
 1896, Craig v. Hesperia L. & W. Co., 113 Cal. 7, 54 Am. St. Rep. 316; 1896, 
 Knox v. Eden Musee Am. Co., 148 N. Y. 441, 51 Am. St. Rep. 700; 1899, 
 Masury v. Ark. Nat'l Bank, 93 Fed. Rep. 603, 35 C. C. A. 476. 
 
 Sec. 218. Same. 
 
 (6) As subjects of attachment or execution. 
 HALEY v. REID. 1 
 
 1854. IN THE SUPREME COURT OF GEORGIA. 16 Ga. Rep. 
 
 437-439- 
 
 [Reid sued out an attachment against Haley, which the sheriff 
 levied on the stock of Haley in a plank-road company by making an 
 entry to that effect upon the attachment. The court overruled a mo- 
 
 1 Only part of opinion given.
 
 219 NATURE OF SHARES OF STOCK. 8ll 
 
 tion by the defendant to dismiss the attachment, and exceptions were 
 taken.] 
 
 BENNING, J. * * * To "levy" means to seize to take cor- 
 poreally. It follows that what can not be seized what can not be 
 taken corporeally can not be levied on. And as the law is not to 
 be presumed to require impossibilities when it requires an executing 
 officer to levy on both personal and real estate, it is not to be pre- 
 sumed to intend to require him to levy on such personal or real estate 
 as it is impossible to levy on ; that is to say, as it is impossible to 
 seize to take corporeally. What precise idea the sheriff meant to 
 express by the word "levied" when he returned that he had "levied" 
 the attachment upon one hundred shares in the corporation I am at 
 some loss to conceive. * * * 
 
 Reversed. 
 
 Note. At common law shares are not attachable. 1812, Denton v. Livings- 
 ton, 9 Johns. (N. Y.) 96; 1819, Williamson v. Smoot, 7 Martin (La. O. S.) 31, 
 12 Am. Dec. 494; 1823, Nashville Bank v. Ragsdale, Peck (Tenn.) 296; 1858, 
 Evans v. Monot, 4 Jones Eq. (N. C.) 227; 1866, Foster v. Potter, 37 Mo. 525; 
 1873, Merchants' M. I. Co. v. Brower, 38 Texas 230; 1885, Barnard v. Ins. 
 Co., 4 Mackey (D. C.) 63; 1887, Rhea v. Powell, 24 111. App. 77; 1889, Duncan- 
 son v. Nat'l Bank, 7 Mackey (D. C.) 348. 
 
 But statutes generally provide for the taking of shares by execution or attach- 
 ment. 1821, Howe v. Starkweather, 17 Mass. 240; 1830, Hussey v. Manufac. 
 & M. Bank, 10 Pick. (Mass.) 415; 1838, Castle v. Carr, 16 N. J. Law 394; 1882, 
 Shenandoah Valley R. Co. v. Griffith, 76 Va. 913 ; 1889, Union Bank v. Byram, 
 131 111. 92; 1894, Thompson v. Wells, 57 111. App. 436; 1895, Ditty v. Bank, 
 112 Ala. 391. 
 
 Under some statutes only the legal interest is attachable. 1881, Van Nor- 
 man v. Jackson, Cir. J., 45 Mich. 204; 1888, Weller v. Pace Tobacco Co., 2 
 N. Y. Supp. 292; 1893, Gypsum Plaster & S. Co. v. Kent, C. J., 97 Mich. 631. 
 
 But under other statutes the equitable interest is also. 1854, Bank of St. 
 Mary's v. St. John, 25 Ala. 566; 1866, Middletown Sav. Bank v. Jarvis, 33 
 Conn. 372; 1894, Tufts v. Volkening, 122 Mo. 631. 
 
 "Stock" can not be the subject of replevin, because of its incorporeal nature. 
 1899, Ashton v. Heydenfeldt, 124 Cal. 14, 56 Pac. Rep. 624. 
 
 Sec. 219. Same. 
 
 (7) Location of shares for attachment. 
 
 PLIMPTON v. BIGELOW. 1 
 
 1883. IN THE COURT OF APPEALS OF NEW YORK. 93 New York 
 
 592-602. 
 
 [Appeal from order of general term of supreme court reversing an 
 order of the special term vacating a levy by attachment upon stock.] 
 
 ANDREWS, J. This action is brought by the plaintiffs, residents of 
 Massachusetts, against the defendant, a resident of Pennsylvania, upon 
 
 Arguments and parts of opinion omitted.
 
 8 12 PLIMPTON V. BIGELOW. 219 
 
 several promissory notes of the defendant, made and delivered in 
 Massachusetts and payable generally. The plaintiffs procured an 
 order for the service of the summons upon the defendant by publica- 
 tion, and also a warrant of attachment against his property. The 
 sheriff of the city and county of New York, to whom the warrant was 
 directed, undertook to execute it by levying upon 439 shares of the 
 stock of the Hat Sweat Manufacturing Company, a Pennsylvania cor- 
 poration, incorporated under the laws of that state, owned by the de- 
 fendant, and for which he held and then had, in the state of Pennsyl- 
 vania, stock certificates issued and delivered to him at the office of 
 the company in Philadelphia, in February, 1882, at which place the 
 stock and transfer books of the company then were and still are kept. 
 The sheriff, for the purpose of making the levy, left w r ith the secretary 
 of the company in the city of New York a certified copy of the war- 
 rant of attachment, together with the notice prescribed by section 649 
 of the Code of Civil Procedure. The formal proceedings were taken 
 to complete the levy, and the shares were subjected to the attachment, 
 provided they were liable to attachment under section 647 of the code. 
 That section declares that "the rights or shares which the defendant 
 has in the stock of an association or corporation, together with the 
 interest and profits thereon, may be levied upon, and the sheriff's cer- 
 tificate of the sale thereof entitles the purchaser to the same rights and 
 privileges with respect thereto, which the defendant had when they 
 were attached." 
 
 The question here is whether this section applies to shares of stock 
 of a foreign corporation. It is to be observed that the section is one 
 of the provisions of a system of proceedings by attachment, and is to 
 be construed in view of the fundamental principle upon which all at- 
 tachment proceedings rest, that the res must be actually or construct- 
 ively within the jurisdiction of the court issuing the attachment in 
 order to any valid or effectual seizure under the process. In the 
 case of tangible property, capable of actual manucaption, it must 
 have an actual situs within the jurisdiction. But credits, choses in 
 action and other intangible interests are made by statute susceptible 
 of seizure by attachment. The same principle, however, applies in 
 this case as in the other, the res, that is the intangible right or interest, 
 to be subject to the attachment, must be within the jurisdiction. But 
 it is manifest from the nature of this species of property that it must 
 be a constructive or statutory presence only, founded upon some char- 
 acteristic fact which determines its locality. Where the defendant 
 who owns a credit is within the jurisdiction there is no difficulty 
 through proceedings in personam in reaching and applying it in dis- 
 charge of his debt to the plaintiff. But where he is out of the juris- 
 diction, and the debt or duty owing to him, or the right he possesses 
 exists against some person within the jurisdiction, attachment laws 
 fasten upon that circumstance, and by notice to the debtor or person 
 owing the duty or representing the right, impound the debt, duty or 
 right to answer the obligation which the attachment proceeding is in- 
 stituted to enforce. In the case supposed, the debt, duty or righ-t for
 
 219 NATURE OF SHARES OF STOCK. 813 
 
 the purpose of attachment proceedings is deemed to have its situs or 
 locality in the jurisdiction. * * * 
 
 We now come more directly to the inquiry upon which the case 
 now under review depends, viz. : Whether the shares of a non-resi- 
 dent defendant in the stock of a foreign corporation can be deemed to 
 be within this state, by reason of the fact that the president or other 
 officers of the corporation are here engaged in carrying on the corpo- 
 rate business. We do not overlook the fact that we are construing a 
 section of the code, the language of which is sufficiently general to 
 include foreign corporations, but they are not expressly named, and 
 for the purpose of determining whether foreign corporations were in- 
 tended to be included, it is a relevant inquiry whether upon general 
 principles the right which a stockholder in a corporation has, by reason 
 of his ownership of shares, is a debt or duty of the corporation, exist- 
 ing in a foreign jurisdiction wherever the officers of the corporation 
 may be found engaged in the prosecution of the corporate business. 
 If the corporation, by having its officers, and by transacting business 
 in a state other than its domicile of origin, is deemed to be itself pres- 
 ent as an entity in such foreign state, to the same extent and in the 
 same sense as it is present in the state which created it, it may be con- 
 ceded that its shares might be properly attached in such foreign juris- 
 diction. 
 
 But we regard the principle to be too firmly settled by repeated 
 adjudications of the federal and state courts, to admit of further con- 
 troversy, that a corporation has its domicile and residence alone 
 within the bounds of the sovereignty which created it, and that it is 
 incapable of passing personally beyond that jurisdiction. (Bank of 
 Augusta v. Earle, 13 Pet. 519; Lafayette Ins. Co. v. French, 18 
 How. (U. S.) 404; Merrickv. Van Santvoord, 34 N. Y. 208; Stevens 
 v. Phoenix Ins. Co., 41 N. Y. 150.) But it is equally true that a 
 foreign corporation is permitted to sue in the courts of this state and 
 that suits in personam may be brought against it by service of process 
 on its officers or agents within the jurisdiction. (Code, 432, 1780; 
 Gibbs v. Queen Ins. Co. 1 ) But suits by -or against foreign cor- 
 porations are not maintained on the theory that the corporation liti- 
 gant is here in person, or that the corporate entity attends its officers 
 in their migrations from one state to another, or that it is itself pres- 
 ent wherever its property may be, or its business may be transacted. 
 The jurisdiction, as I understand, rests upon the ground that as a 
 corporation must act by agents, it may, through its agents, subject it- 
 self to the jurisdiction of a foreign tribunal. * * * 
 
 The right which a shareholder in a corporation has by reason of 
 his ownership of shares is a right to participate according to the 
 amount of his stock in the surplus profits of the corporation on a 
 division, and ultimately on its dissolution in the assets remaining 
 after payment of its debts. (Burrall v. Bushwick Railroad Co., 75 
 N. Y. 211.) It is this right and interest which is made liable to 
 attachment under the section referred to. The right of the share- 
 holder is derived from the corporation under its charter, or the laws 
 
 1 63 N. Y. 114.
 
 8 14 PLIMPTON V. BIGELOW. 2IQ 
 
 of the state which created it. It is enforceable by judicial proceed- 
 ing in the local courts, and in case of a dissolution, of the corporation 
 the local courts -alone can be resorted to to wind up its affairs and 
 distribute its assets. It seems impossible to regard the stock of a 
 corporation as being present for the purpose of judicial proceedings 
 except at one of two places, viz., the place of residence of the owner, 
 or the place of the residence of the corporation. * * * 
 
 The foreign corporation is not here because its agents are here, nor 
 because it has property here ; nor is the stock here because the cor- 
 poration has property, or is conducting its business in this state. 
 The individual members of a corporation are not the owners of 
 the property of the corporation, or of any part of it. The abstract 
 entity the corporation is the owner and only owner of the prop- 
 erty. We do not doubt that shares for the purpose of attach- 
 ment proceedings may be deemed to be in the possession of the cor- 
 poration which issued them, but only at the place where the corpora- 
 tion by intendment of law always remains, to wit, in the state or 
 country of its creation. In all other places it is an alien. It may 
 send its agents abroad or transact business abroad as any other in- 
 habitant may do, without passing personally into the foreign jurisdic- 
 tion or changing its legal residence. But such agents are not the 
 corporation, and do not represent the corporation in respect to rights 
 as between the corporation and its shareholders incident to the owner- 
 ship of shares. 
 
 It is not necessary to this case to define the limits of legislative 
 power in subjecting intangible property to attachment by notice served 
 upon such person or corporation as may be designated by the legisla- 
 ture. Manifestly the res can not be within the jurisdiction, as a mere 
 consequence of a legislative declaration, when the actual locality is 
 undeniably elsewhere. But in respect to intangible interests, as we 
 have said, there can be no actual seizure of the thing, and it can be 
 bound only by notice to some one who represents the thing. In case 
 of a debt, notice to the debtor residing within the jurisdiction is the 
 ordinary proceeding to attach the debt, and if the debtor is a corpora- 
 tion, and the corporation is a domestic one, there is no difficulty. 
 But in some of the states foreign corporations having an agent, or a 
 place of business within the state, may be charged under what is called 
 the trustee process, or as garnishee. (Barrv. King, 96 Pa. St. 485; 
 Nat'l Bank v. Huntington, 129 Mass. 444.) In these proceedings 
 the trustee or garnishee is joined with the principal defendant as a 
 party to the action, and the debt owing by the trustee or garnishee 
 is ascertained and the liability of the trustee and garnishee is ad- 
 judged in the action. There may be no difficulty upon principle in 
 compelling a corporation which has an agent and officer in another 
 state and is transacting business there to respond in garnishment pro- 
 ceedings for the debt, although the creditor the principal defendant 
 is a non-resident, and if bound to respond, it is certainly just that 
 the judgment which compels the corporation to pay the debt to the 
 plaintiff should protect it in making such payment against a subse-
 
 22O NATURE OF SHARES OF STOCK. 
 
 quent claim by its creditor. We do not enter into this question here, 
 but whatever view may be taken as to the right to attach a debt owing 
 by a foreign corporation to a non-resident, by service of notice on an 
 agent of the corporation within the jurisdiction, we think, in respect to 
 corporate stock, which is not a debt of the corporation in any proper 
 sense, it would be contrary to principle to hold that it can be reached 
 by such a notice. We are, therefore, of the opinion that the funda- 
 mental condition of attachment proceedings, that the res must be 
 within the jurisdiction of the court in order to an effectual seizure, is 
 not answered in respect to shares in a foreign corporation by the pres- 
 ence here of its officers, or by the fact that the corporation has prop- 
 erty and is transacting business here, and that section 647 must be 
 construed as applying to domestic corporations only. (See Moore v. 
 Gennett, 2 Tenn. Ch. 375; Christmas v. Biddle, 13 Pa. St. 223; 
 Childs v. Digby, 24 Pa. St. 26; Drake on Attachment, 244, 471, 
 478.) * * * 
 
 Order of general term reversed and that of special term affirmed. 
 
 Note. See, also, 1875, Moore v. Gennett, 2 Tenn. Ch. 375; 1886, Winslow 
 v. Fletcher, 53 Conn. 390, 55 Am. Rep. 122; 1895, Reid Ice Co. v. Stephens, 
 62 111. App. 334; 1895, Ireland v. Globe M. & R. Co., 19 R. I. 180, 61 Am. St. 
 Rep. 756, 29 L. R. A. 429 ; 1898, New Jersey Sheep & W. Co. v. Traders' Dep. 
 Bank, 20 Ky. L. Rep. 565, 46 S. W. Rep. 677 ; 1898, Pinney v. Nevills, 86 Fed. 
 Rep. 97. 
 
 Sec. 220. 
 
 (8) Seizure in equity. 
 
 ERWIN v. OLDHAM. 
 
 1834. IN THE SUPREME COURT OF TENNESSEE. 6 Yerger (14 
 
 Tenn.) 185-189. 
 
 GREEN, J. This is a bill filed by the complainant to subject stock 
 in the Nashville Bridge Company to the payment of his debt due 
 from defendant. 
 
 It is not pretended that there is any fraud or trust in this case to 
 furnish a ground of equity jurisdiction, and the simple question is 
 whether this court has power to cause stocks, credits and rights of 
 action held by a debtor, without fraud, to be sold or converted into 
 money, or transferred to the creditor in payment of his debt. We 
 think it has not, and without entering into any reasoning on the sub- 
 ject or review of authorities, we refer, as conclusively settling the 
 point, to the case of Donavan v. Finn, i Hop. 59. 
 
 Our act of assembly of 1833, ch. ri, makes ample provision upon 
 this subject, but this bill, being filed long before the passage of that 
 act, can not be governed by it. 
 
 Decree affirmed. 
 
 Note. Compare, 1854, Bank of St. Mary'a v. St. John, 25 Ala. 566; 1866, 
 Middletown Sav. Bank v. Jarvis, 33 Conn. 372.
 
 TITLE V. THE BODY CORPORATE ITS NAME. 
 
 CHAPTER 9. 
 THE CORPORATE NAME. 1 
 
 Sec. 221. Necessity of a name. 
 
 "There ought to be a name by which it ought to be incorporated." 
 10 Coke's Rep., p. 29, c. 1600. 
 
 "The name of the corporation is as a name of baptism." 21 Ed. 
 IV, p. 56 (1482); 10 Coke's Rep., p. 28. 
 
 "It is a clear and plain rule in our law, that the name of a corpora- 
 tion is as a name of baptism to a natural man, and if there is any 
 difference, I conceive that the law requires more strict certainty in 
 the name of a corporation than in the name of any particular person ; 
 for a name is more necessary to a corporation than to another; for 
 when an infant is born, he is presently a perfect creature before any 
 name is given him, and the giving the name is not a matter of neces- 
 sity, but of policy for distinction, etc., but in the case of a corpora- 
 tion the name is the substance and essence of it, and it is not a body 
 before a name be imposed upon it." Argument of Egerton, Solk:i- 
 tor-General, 30 and 31 Eliz., Ley's Rep. 163 pi. 228 (1589); 6 
 Viner's Abr., p. *26i. 
 
 "The names of corporations are given of necessity, for the name is 
 as the very being of the constitution, and though it is the will of the 
 king that erects them, yet the name is the knot of their combination, 
 without which they could not perform their corporate acts, and it is 
 no body to plead and be impleaded, to take and give till it hath got 
 a name, but natural persons can take before they come into being, 
 and when they are in being, before they have got a name." Gilb. 
 Hist. C. B. 181, 182, cap. 17; 6 Viner *262, c. 1620. 
 
 1 See Ang. & Ames, 99-103; Beach, 373-5, 864; Boone, 29-32, 47, 75, 
 286: Clark, pp. 71-4; Cook, 699, et seq.; Elliott, 47-8; Morawetz, 353- 
 7, 770, 771, 810-12; Taylor, 12, 14, 137, 158-9; I Thompson, 284-300; 
 VII Thompson, 8183-8202. 
 
 (816)
 
 222 THE CORPORATE NAME. 8l/ 
 
 Sec. 222. Acquisition of a name. 
 
 SMITH v. TALLASSEE BRANCH OF CENTRAL PLANK-ROAD CO. 1 
 
 1857. IN THE SUPREME COURT OF ALABAMA. 30 Ala. Rep. 
 
 650-668. 
 
 [Action by the "Tallassee Branch of the Central Plank-Road Com- 
 pany" against Smith upon a subscription to the stock of the Central 
 Plank-Road Company. Plaintiff showed the organization of the lat- 
 ter company under its charter; also the proceedings for the establish- 
 ment of the Tallassee branch, including the meeting of the stockhold- 
 ers for the organization thereof, the adoption of by-laws and a corpo- 
 rate name "The Tallassee Branch of the Central Plank-Road 
 Company" the election of directors, etc. Smith asked the court to 
 charge that the charter did not give the plaintiff any corporate name, 
 nor any authority to select one. This was refused, and defendant, 
 Smith, excepted. The court below found for the road company and 
 Smith appeals.] 
 
 WALKER, J. * * * If the plaintiff have any corporate exist- 
 ence, it is derived from the fourth section of the act of 3Oth of Janu- 
 ary, 1850, providing for the incorporation of the Central Plank- Road 
 Company Pamphlet Acts 18491850, p. 268. This act authorizes 
 the incorporation of a company for the construction of a plank-road 
 from Wetumpka to Gunter's Landing or some other point on the Ten- 
 nessee river. So much of the fourth section as it is necessary to copy 
 in this opinion, is in the following words: "Any individual or asso- 
 ciation may establish branch plank-roads running into and connecting 
 with said central plank-road, which branches may be governed by the 
 respective stockholders thereof; and said stockholders for building 
 branches to said central plank-road may become, and hereby are in- 
 corporated under the provisions of this act." 
 
 It is contended that the bestowment of a name by the charter of a 
 corporation is indispensable to its creation, and that the plaintiff has 
 no corporate existence, because no name is provided in the statute. 
 Names are necessary to the existence of corporations. It is "the very 
 being of the constitution;" "the knot of their combination, without 
 which they could not do their corporate acts, for it is no body to plead 
 and be impleaded, to take and give, until it hath gotten a name." 2 
 Bacon's Abr. Corporation (C). But the authorities clearly show, that 
 although the name is usually given by the charter, it is not indispensable 
 that it should be so given. It is said, in Wilcock on Corporations 34., 
 that every corporation has at least one name by which it may be identi- 
 fied; this may be either derived from usage, or conferred upon it by 
 the statute or charter of creation. In an anonymous case in ist 
 Salkeld 191, we find the following: "My Lord Coke says that a cor- 
 
 1 Statement much abridged. Arguments omitted ; and only that part of the 
 opinion relating to the one point given. 
 
 52 WIL. CASKS.
 
 8l8 SMITH V. CENTRAL PLANK-ROAD CO. 222 
 
 poration must have a name ; but th'at must be understood to be either 
 expressed in the patent or implied in the nature of the thing, as if the 
 king should incorporate the inhabitants of Dale with power to choose 
 a mayor annually, yet it is a good corporation by the name of mayor 
 and commonalty. So the city of Norwich is incorporated to be a 
 mayor and sheriffs by the charter of Henry IV, and are called mayor, 
 sheriffs and commonalty." 
 
 Where individuals are authorized to associate themselves together, 
 and, organizing as a corporation under a general law, give themselves 
 a name, the existence of the corporation has been maintained. Fal- 
 coner v. Campbell, 2 McLean 195-198; see, also, Minot v. Curtis, 
 7 Mass. 447. 
 
 The charter provides for the establishment of branches to the Cen- 
 tral plank-road, and so designates them in the I3th as well as the 4th 
 section above copied. The charter also clearly contemplates the es- 
 tablishment of more branches than one, and thus arises the propriety 
 of distinguishing the different branches by a variation in the names. 
 A most appropriate mode of accomplishing the object is by reference 
 to some noted point toward which the branch leads. Tallassee or its 
 vicinity is one of the points had hi view in the organization of this 
 company. It is shown by the record of the proceedings of the cor- 
 poration, copied into the bill of exceptions, that it has used from the 
 commencement the name of the Tallassee Branch of the Central 
 Plank-Road Company. This is the name which would naturally be 
 given to it by implication from the charter, and the route of the road. 
 Without determining the effect of implication or usage, in a case 
 where one existed without the other, we decide that the plaintiff has, 
 by implication and usage, the name of the Tallassee Branch of the 
 Central Plank-Road Company, and that the complaint, as amended, 
 is in the proper name. * * * 
 
 Affirmed. 
 
 Note. A corporate name may be acquired by user. 1877, Gifford v. Rock- 
 ett, 121 Mass. 431 ; 1877, Alexander v. Berney, 28 N. J. Eq. 90. See, infra, 
 p. 823, but under the statutes should be distinctive and not vague or uncer- 
 tain. 1882, State v. McGrath, 75 Mo. 424; 1893, In re Nether Prov. Assn., 
 12 Pa. Co. Ct. 666; 1894, In re Nether Prov. Assn., 2 Pa. Dist. Rep. 702. Stat- 
 utes frequently provide that a corporation shall not select a name already in 
 use by another corporation, or so similar thereto as to lead to uncertainty or 
 confusion. New York, Gen'l Corp. L. 1890, ch. 563, 6; Michigan, Howell's 
 Stat., 4161a, C. L., 7037. See, New Jersey Statute, 1896, ch. 185, 8. 
 Such provision is declarator}' of the common law. Newby v. R. Co., infra, 
 p. 819. 
 
 Many other statutory provisions exist, e. g. : "When the name assumed is 
 that of a person or firm, there must be joined thereto some word designating 
 the business to be carried on, followed by the word "company or corporation" 
 Alabama, 1286 of Code under penalty of partnership liability of mem- 
 bers for failure to comply with this provision. Missouri has a similar provis- 
 ion, R. S. 1889, 2496. Ohio provides that the name shall begin with "The" 
 and end with "company," unless the organization is not for profit. R. S., 
 3236. Wisconsin provides that the "name shall not contain the names of in- 
 dividuals in the manner in which they are ordinarily used in partnership or 
 business names." Statutes 1889, 1772. In Kentucky, every corporation 
 doing business in the state is required to have its name painted in large let-
 
 223 THE CORPORATE NAME. 8 19 
 
 ters in a conspicuous place at its principal place of business, followed by in- 
 corporated, painted in like manner. So the name, with incorporated, shall be 
 printed upon all advertising matter. Am. Corp. Legal Man., 1899, p. 159; 
 Stat. 1894, 576. 
 
 Sec. 223. Rights in the corporate name. 
 
 NEWBY v. THE OREGON CENTRAL RAILWAY CO. ET AL. 1 
 
 1869. IN THE U. S. CIRCUIT COURT. Deady's Rep. 609-620, 
 
 Fed. Cas. 10144. 
 
 [Suit to enjoin the defendants from using and issuing bonds in the 
 name of the Oregon Central Railway Company. Prior to 1867 there 
 had existed a railroad company, duly incorporated and organized un- 
 der the Oregon law, by the name of the Oregon Central Railway 
 Company. This had proceeded to business, and had issued certain 
 bonds of $1,000 each, two of which Newby owned. In 1867, owing 
 to difficulties among the members, certain of the corporators of the 
 old company seceded therefrom, and under the general corporation 
 laws of Oregon proceeded to organize a new corporation with the 
 same name, and to issue and put upon the market bonds of a charac- 
 ter similar to those issued by the old company and under the same 
 name. The defendants demurred on the ground that the legal right 
 to the name The Oregon Central Railway Company had not been 
 established at law, and the facts alleged were not sufficient to consti- 
 tute a cause of suit.] 
 
 DEADY, J. * * * By the law of Oregon any three or more 
 persons may incorporate themselves for the purpose of engaging in 
 any lawful enterprise or occupation. The primary step in the forma- 
 tion of this legal entity is the execution and filing of articles of incor- 
 poration, which .articles, among other things, must specify "The 
 name assumed by the corporation and by which it shall be known." 
 (Or. Code, 658-9.) 
 
 By the execution and filing of these articles the corporate name as- 
 sumed thereby and specified therein becomes exclusively appropri- 
 ated. If afterwards any persons attempt to incorporate for any pur- 
 pose by the same name, this would be an encroachment upon the 
 rights of the first corporation and therefore illegal. To prevent the 
 continuance of such a wrong upon the rights of another, equity will 
 interfere at the suit of the injured party by injunction. The case is 
 analogous to if not stronger than that of a piracy upon an established 
 trade-mark. (Bell v. Locke, 8 Paige 75; Taylor v. Carpenter, n 
 Paige 292; Partridge v. Menck, 2 Barb. Ch. 102; Wil. Eq., 402-3.) 
 The corporate name of a corporation is a trade-mark from the neces- 
 sity of the thing, and upon every consideration of private justice and 
 
 1 Statement abridged. Only part of opinion given.
 
 820 ARMINGTON V. PALMER ET AL. 224 
 
 public policy deserves the same consideration and protection from a 
 court of equity. 
 
 Under the law the corpoi'ate name is a necessary element of the 
 corporation's existence; without it a corporation can not exist. Any 
 act which produces confusion or uncertainty concerning this name is 
 well calculated to injuriously affect the identity and business of a cor- 
 poration. And as a matter of fact, in some degree at least, the nat- 
 ural and necessary consequence of the wrongful appropriation of a 
 corporate name is to injure the business and rights of the corporation 
 by destroying or confusing its identity. The motives of the persons 
 attempting the wrongful appropriation are not material. They 
 neither aggravate or extenuate the injury caused by such appropria- 
 tion. The act is an illegal one, and must, if necessary, be presumed 
 to have been done with an intent to cause the results which naturally 
 flow from it. Nor will a court of equity refuse to enjoin the wrong- 
 ful appropriation of a corporate name until the right of the first cor- 
 poration to the name has been established by the verdict of a jury in 
 an action at law. Such right does not rest in parol but is shown by 
 the record, if at all, and is determined by the court in any form of 
 proceeding. Neither in such case has the paity injured an adequate 
 and complete remedy at law. As in the case of patents for inven- 
 tions and copyrights, the remedy at law can only give redress for the 
 past injury, and that often inadequately. But to protect the injured 
 corporation from the mischief arising from continued violation of its 
 rights and perpetual litigation concerning them, resort must be had to 
 the equitable remedy by injunction. (Story's Eq. , 930.) 
 
 Nor do I deem it material in this case to the jurisdiction in equity, 
 that the defendant should be insolvent unable to respond to the com- 
 plaint in damages. The jurisdiction in this class of cases trade- 
 marks, patents and copyrights depends upon the fact that the matter 
 is intrinsically of equitable cognizance that the legal rights of the 
 party can only be protected in equity, and not upon the uncertain and 
 irrelevant test of the insolvency of the defendant. * * * 
 
 Demurrer sustained on another ground suggested in argument, i. e. y 
 that the old company should be a party to the suit. 
 
 Note. See note at end of next case. 
 
 Sec. 224. Same. 
 
 ARMINGTON v. PALMER ET AL. 1 
 
 1898. IN THE SUPREME COURT OF RHODE ISLAND. 21 R. I. 109, 
 79 Am. St. Rep. 786, 42 Atl. Rep. 308, 43 L. R. A. 95, 9 Am. 
 & Eng. C. C. N. S. 802. 
 
 [Bills by Armington and Sims, individually and as stockholders in 
 the Armington and Sims Engine Company, to enjoin Palmer and others 
 from using the name "Armington and Sims Company, successors 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 224 THE CORPORATE NAME. 821 
 
 to Armington and Sims Engine Company." The engine company was 
 incorporated in 1883, and had acquired the assets, including patents 
 and good-will, of a former partnership and corporation by the name of 
 Armington and Sims Company. It had, however, in 1896, become em- 
 barrassed, and by agreement of all interested, its property was sold at 
 auction to pay its debts, Palmer and others being purchasers. They 
 immediately organized a corporation under the general corporation law, 
 with the name Armington and Sims Company, and afterward a meet- 
 ing of the engine company was called to ratify the use of the name 
 chosen. At this meeting, against the written protest of Sims, Armington 
 not being present, a resolution granting the right to use the name was 
 passed. The defendants demurred on the ground that an injunction 
 against the use of a corporate name authorized by the state could not 
 be maintained by a private party, but only by the state ; also, that no 
 facts set out entitled complainants to relief.] 
 
 STINESS, J. * * * Upon the first ground of demurrer, the question 
 is whether a private party can maintain a bill against a corporation for 
 the wrongful assumption of its name. The respondents rely upon 
 Rice v. Bank, 126 Mass. 300; Boston Rubber Shoe Co. v. Boston 
 Rubber Co., 149 Mass. 436, 21 N. E. Rep. 875 ; American Order of 
 Scottish Clans v. Merrill, 151 Mass. 558, 24 N. E. Rep. 918, and 
 Paulino v. Association, 18 R. I. 165, 26 Atl. Rep. 36. The first of 
 these cases was an information quo ivarranto, to exclude the respond- 
 ents from exercising the franchise of being a corporation. The court 
 held that such a bill must be filed by the state, and not by private par- 
 ties. With this doctrine we need not disagree. The second case was 
 a petition for leave to file an information quo -warranto, and to re- 
 strain the respondent from doing business under the name of the Bos- 
 ton Rubber Company, claiming that this was distinct from the fran- 
 chise to be a corporation. The statutes of Massachusetts of 1870 pro- 
 vided that the name assumed in the agreement of association should 
 not be changed but by act of the legislature, and also that the agree- 
 ment was to be submitted to a commissioner of corporations for his 
 approval. The court held that, as it was within his discretion to re- 
 fuse to approve it, the court could not exercise that discretion, and 
 the certificate was conclusive. The court said that the statute was 
 not intended to prevent the fraudulent use of trade-names, but to pre- 
 vent the identity of corporate names. The statute, like our own, re- 
 quired that the name should not be one in use by any existing corpo- 
 ration of the state. The statutes of Massachusetts (Pub. St., ch. 186, 
 17) provide for an application to the court in cases of private in- 
 jury ; but as the petitioner had acquiesced in the use of the name for 
 ten years without injury, the court held that it did not make out a case 
 for injunction under the statute. The third case is to the same effect, 
 that the approval by the insurance commissioner of the name adopted 
 by a beneficial association is conclusive in a private suit of the right 
 of the association to such corporate name. Both of these latter cases 
 so clearly rest upon the conclusiveness of the judgment of the com- 
 missioner that they are hardly in point in respect to our statute, which
 
 822 ARMINGTON V. PALMER ET AL. 224 
 
 has no such provision. Judge Holmes, in American Order of Scottish 
 Clans v. Merrill, foresaw a case like this one in saying: "When 
 there are no statute provisions as to the choice of names, and parties 
 organize a corporation under general laws, it may be that they choose 
 a name at their peril, and that, if they take one so like that of an ex- 
 isting corporation as to be misleading and thereby to injure its busi- 
 ness, they may be enjoined, if there is no language in the statute to 
 the contrary." The possibility here suggested is fully sustained by 
 many cases, among which are the following, some of which were 
 cited by Judge Holmes : Putnam v. Sweet, i Chand. 286; Newby 
 v. Railway Co., Deady 609; Holmes, Booth & Haydens v. Holmes, 
 Booth and Atwood Mfg. Co., 37 Conn. 278; Farmers' Loan and 
 Trust Co. v. Farmers' Loan and Trust Co. of Kansas (Sup.), i 
 N. Y. Supp. 44; Higgins Co. v. Higgins' Soap Co., 144 N. Y-462, 
 39 N. E. Rep. 490; Celluloid Mfg. Co. v. Cellonite Mfg. Co.. 32 
 Fed. Rep. 94; R. W. Rogers Co. v. William Rogers' Mfg. Co., 17 
 C. C. A. 576, and note; Plant Seed Co. v. Michel Plant and Seed 
 Co., 23 Mo. App. 579, affirmed 37 Mo. App. 313. 
 
 The principles upon which these cases rest are, that although a 
 corporation may be legally created, it can no more use its corporate 
 name in violation of the rights of others than an individual can use 
 his name, legally acquired, so as to mislead the public and to injure 
 another. The principle adopted is similar to that of a trade-name or 
 trade-mark, and is applied accordingly. Consequently a court of 
 equity has jurisdiction in such a case without the intervention of the 
 state. The case of Paulino v. Association is quite different from the 
 case now before us. In that case the complainants, a voluntary as- 
 sociation, had appointed a committee to procure a charter, which was 
 procured, and under which the corporators had organized. The bill 
 sought to annul the charter because of alleged misconduct on the part 
 of the corporators. The court held that this could not be done. 
 Clearly, the remedy of the complainants was of a different sort. After 
 referring to some of the cases cited above, the court used the same 
 language herein quoted from the opinion of Judge Holmes in Amer- 
 ican Order of Scottish Clans v. Merrill, thus intimating the very right 
 which is claimed in this case. But the respondents argue, as was 
 argued in the Massachusetts cases, that to restrain the use of the name 
 is practically to annul the corporation, because it can not act without 
 a name. We do not think that this result follows. According to the 
 allegations of the bill, the name assumed by the respondents is so like 
 that of the older corporation as to be misleading and injurious. We 
 see no reason why the corporation, if it is restrained from using its 
 present name, may not, under Gen. Laws R. I., ch. 176, 7, choose 
 another name. * * * 
 
 Stated generally, the defense is that, having the right to make the 
 engine, the respondents have the right to use the name, which, for 
 this reason, can not injure the complainants; that no fraud was in- 
 tended in the choice of the name, and the authority given by the vote 
 above referred to for the use of the name by the respondents. The
 
 224 THE CORPORATE NAME. 823 
 
 use of a trade-name is in some respects different from that of a trade- 
 mark. The latter usually relates chiefly to the thing sold, while, in 
 addition to this, the former involves the source from which it comes, 
 the individuality of the maker, both for protection in trade and for 
 avoiding confusion in business affairs, as well as for securing to him 
 the advantage of any good reputation which he may have gained. 
 The law of trade-mark is designed chiefly for the protection of the 
 public from imposition ; that of trade-name for the protection of the 
 party entitled to it. A case, therefore, in regard to trade-name is of 
 somewhat broader scope than one relating to a trade-mark. It would 
 be of little use to go over the numerous cases upon these objects, as 
 they all agree in principle, however variant may have been its appli- 
 cation. For this case it is enough to say that although one may make 
 and sell an unprotected article, he can not simulate the name or prod- 
 uct of another so as to trench upon the latter's rights or to mislead 
 the public. * * * 
 
 Applying this principle to this case, it is demonstrative. The name 
 adopted by the respondent is so close a resemblance to that of the 
 Armington & Sims Engine Company that there can be little doubt 
 that it would be misleading and confusing in business matters, and 
 the respondent advertises itself as the successor of said company. 
 That company is still in existence. So far as appears, it still has 
 assets, because its accounts, bills and notes receivable were excepted 
 from the sale of its property. As such corporation, it has the right 
 to its name, free from simulative interference. * * * 
 
 But the respondents claim that the Armington & Sims Engine 
 Company is not in business, and so no injury can follow. As we 
 have said, the company is still in existence, and may be put on a 
 footing for active business by a further contribution of capital, a thing 
 which is often done, It has the right to its name, and, if its right be 
 violated, it is not necessary to show actual damage, nor will the ab- 
 sence of fraudulent intent be a defense. Davis v. Kendall, 2 R. I. 
 566. This disposes of the defense on the ground of innocent intent. 
 
 The third branch of the defense, the claim of authority, can not 
 prevail. The respondents did not acquire the right to use the name 
 by purchase. They bought only the plant, machinery, stock and 
 such visible property. The purchase of these does not carry the 
 franchise or name of the corporation. 
 
 The vote of the corporation is of no effect. * * It was done 
 
 after the sale of the property and the organization of a new com- 
 pany, and without consideration. It was therefore a purely voluntary 
 act. * * * 
 
 Demurrer overruled. 
 
 Note. 1. The right to a corporate name is a franchise of the corporation, if 
 lawfully acquired: 1889, Boston Rubber Shoe Co. v. Boston Rubber Co., H! 
 Mass. 436, 27 Am. & E. C. C. 380; 1890, American Order Scottish Clans v. 
 Merrill, 151 Mass. 558, 8 L. R. A. 320; 1892, Illinois Watch Case Co. v. Pear- 
 son, 140 111. 423, 41 Am. & E. C. C. 11 ; 1893, Paulino et at. v. Portuguese B. 
 Assn., 18 R. I. 165, 41 Am. & E. C. C. 8; but see, 1891, Iln/Hton Moilcr Co. 
 v. Hazeltoa Tripod Co., 137 111. 231, 28 N. E. Rep. 248, holding thnt rights in
 
 824 ARMINGTON V. PALMER ET AL. 224 
 
 a corporate name are not a franchise within the meaning of statutes relating 
 to jurisdiction of courts ; 1893, Hygeia Water Ice Co. v. N. Y. Hygeia Water 
 Ice Co., 140 N. Y. 94 ; 1899, Aiello v. Montecalo, 21 R. I. 496, 44 Atl. Rep. 931 . 
 
 2. A corporation, unincorporated association, or an individual who Kas ac- 
 quired a prior right to a name used as a trade-name or trade-mark may enjoin 
 its subsequent appropriation and use by another corporation, association or 
 person when it does substantial damage to the plaintiff or misleads the pub- 
 lic: 1869, Newby v. Oregon Cent. R. Co., Deady 609, Fed. Cas. 10144, supra, 
 p. 819; 1870, Holmes, Booth & Haydens v. Holmes B. & A., 37 Conn. 278, 9 
 Am. Rep. 324; 1877, Singer Machine Co. v. Wilson, 3 App. Cas. 376; 1878, 
 Merchants' Banking Co., etc., v. Mer. J. S. Co., 9 Ch. Div. 560, 47 L. J. Ch. 
 828; 1881, Hendricks v. Montagu, 44 L. T. 879, 50 L. J. Ch. 456, 17 Ch. Dec. 
 630; 1884, Goodyear Rubber Co. v. Goodyear Rubber Mfg. Co., 21 Fed. Rep. 
 276, reversed 128 U. S. 598; 1885, Drummond Tobacco Co. v. Rundle, 114 111. 
 412, 10 Am. & E. C. C. 9; 1887, Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 
 Fed. Rep. 94; 1890, Rendle v. J. Edgcumbe R. Co., 63 L. T. 94; 1890, Gato 
 v. El. Modello Cigar Mfg. Co., 25 Fla7886, 6 L. R. A. 823; 1890, Madame Tus- 
 saud & Sons v. Louis Tussaud, L. R. 44 Ch. Div. 678, 32 Am. & E. C. C. 11; 
 1892, Hazelton Boiler Co. v. Hazelton T. Co., 142 111. 494, 37 Am. & E. C. C. 
 7; 1892, Vonderbank v. Schmidt, 44 La. Ann. 264, 15 L. R. A. 462; 1892, Fish 
 Bros. Wagon Co. v. Fish, 82 Wis. 546, 16 L. R. A. 453; 1892, Le Page Co. v. 
 Russia Cement Co., 51 Fed. Rep. 941, 17 L. R. A. 354; 1895, Higgins v. Hig- 
 gins Soap Co., 144 N. Y. 462, 27 L. R. A. 42; 1895, Grand Lodge A. O. U. W. 
 v. Graham, 96 Iowa 592, 31 L. R. A. 133; 1895, Rogers Co. v. Rogers Mfg. 
 Co., 17 C. C. Ap. 579, 70 Fed. Rep. 1017; 1895, Elgin Butter Co. v. Elgin 
 Creamery Co., 155 111. 127 ; 1896, Snyder Mfg. Co. v. Snyder, 54 Ohio St. 86, 
 31 L. R. A. 657; 1896, Investor Pub. Co. v. Dobinson, 72 Fed. Rep. 603; 1897, 
 Supreme Lodge K. of P. v. Imp. Or. K. of P., 113 Mich. 133, 38 L. R. A. 658; 
 1898, Bingham School v. Gray, 122 N. C. 699, 41 L. R. A. 243; 1898, Bristol 
 Bank & T. Co. v. Jonesboro B. & T. Co., 101 Tenn. 545; 1898, Reed v. Wil- 
 mington S. Co., 1 Marvel (Del.) 193, 40 Atl. Rep. 955 ; 1898, Walter A. Baker & 
 Co. v. Baker, 87 Fed. Rep. 209; 1899, St. Patrick's Alliance, etc., v. Byrne, 59 
 N. J. Eq. 26, 44 Atl. Rep. 716; 1899, Red Polled Cattle Club v. Red Polled 
 Cattle Club, 108 Iowa 105, 78 N. W. Rep. 803; 1899, Lamb Knit Goods Co. v. 
 Lamb G., etc., Co., 120 Mich. 159, 44 L. R. A. 841, 78 N. W. Rep. 1072. But 
 compare, 1890, Amer. Order, etc., v. Merrill, 151 Mass. 558, 8 L. R. A. 320; 
 
 1891, Internatl. T. Co. v. Int. L. & T. Co., 153 Mass. 271, 10 L. R. A. 758. 
 
 3. A sale of the property and good-will of the business carries with it the 
 right to use the trade-name, though the name be the name of an individual or 
 corporation: 1892, Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 941, 17 L. 
 R. A. 354 ; 1892, Vonderbank v. Schmitt, 44 La. Ann. 264, 15 L. R. A. 462 ; 
 
 1892, Fish Bros. v. Fish, 82 Wis. 546, 16 L. R. A. 453; 1894, Pillsbury v. Pills- 
 bury-Washburn F. M. Co., 12 C. C. App. 432, 64 Fed. Rep. 841 ; 1895, Higgins 
 v. Higgins Soap Co., 144 N. Y. 462, 27 L. R. A. 42; 1896, Snyder Mfg. Co. v. 
 Snyder, 54 Ohio St. 86, 31 L. R. A. 657; 1898, Bingham School v. Gray, 122 N. 
 C. 699, 41 L. R. A. 243; 1898, Walter A. Baker v. Baker, 87 Fed. Rep. 209. 
 
 4. It has, however, been held that a foreign corporation can not prevent the 
 use of a corporate name afterward selected by a domestic corporation : 1892, 
 Hazelton Boiler Co. v. Hazelton, T. B. Co., 142111.494; 1897, People v. 
 Assurance Co., Ill Mich. 405. But see contra, 1897, Re Bradley Fertilizer Co., 
 19 Pa. Co. Ct. 271 ; 1899, Red Polled Cattle Club v. Red Polled Cattle Club, 
 108 Iowa 105, 78 N. W. Rep. 803. 
 
 5. But no exclusive trade-name rights can be acquired in geographical names, 
 though selected by a corporation as its name: 1889, Nebraska L. & T. Co. v. 
 Nine, 27 Neb. 507, 27 Am. & Eng. C. C. 374; 1893, Columbia Mill Co. v. Alcorn, 
 150 U. S. 460; 1899, Illinois Watch Case Co. v. Elgin N. W. Co., 94 Fed. Rep. 
 667. Butcompare 1899, Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 
 53 N. E. Rep. 141. 
 
 6. The secretary of state or the proper registering officer has discretionary 
 power to refuse to register a company that chooses a name closely resembling 
 one already in use by another corporation ; and this discretion is not to be
 
 225 EFFECT OF MISNOMER. 825 
 
 controlled by the courts : 1887, State v. McGrath, 92 Mo. 355, 17 Am. & Eng. 
 C. C. 191; 1889, In re U. S. Mer. Rep. Co., 115 N. Y. 176; 1892, Re Waverly 
 Ladies, 30 W. N. C. 257; 1892, Illinois Watch C. Co. v. Pearson, 140 111. 423, 
 41 Am. & Eng. C. C. 11 ; 1896, Altoona Gas Co. v. Gas Co., 17 Pa. Co. Ct. 662. 
 But if the corporation applying has a clear prior right to the name chosen, 
 the secretary of state may be compelled to register it. 1882, State v. McGrath, 
 75 Mo. 424; "1900, People v. Payn, 161 N. Y. 229, 55 N. E. Rep. 849. 
 
 Sec. 225. Effect of misnomer. 
 
 THE MEDWAY COTTON MANUFACTORY v. ADAMS. 1 
 
 1813. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 10 
 Mass. Rep. *^6o*^6^.. 
 
 SEWALL, J. In this action of assumpsit the defendants are charged 
 upon a note made by them with an averment that it was made to the 
 plaintiffs, by the name of Richardson, Metcalf & Co. To this 
 declaration there is a demurrer, and the ground taken by the defend- 
 ants is, that the promise expressed in the note declared on is not 
 recoverable by the plaintiffs. * * * 
 
 [It was argued that the variance was not obviated by the averment 
 that the promise was in fact made to the plaintiffs in their corporate 
 capacity, and that the demurrer was no confession of a substantially 
 deficient averment.] 
 
 But the declaration is not liable to the objections which have been 
 urged against it, if the case there stated is provable in any course of 
 evidence competent for the plaintiffs to produce in a trial upon the 
 general issue. For then the variance of name is not fatal to their 
 demand ; and if it is competent for the plaintiffs to prove the allega- 
 tions of their writ, then these are confessed by the demurrer. 
 
 A variance or mistake of the name in cases of existing persons is 
 not fatal to their contracts when there is a sufficient description of the 
 parties w'hereby they may be known. A variance of the name sub- 
 scribed from the name of the defendant does not prejudice, if it be 
 found that the defendant executed the deed, although the name should 
 be totally different. 2 
 
 A grantee or person entitled by a conveyance takes solely by the 
 deed, and is therefore to be named or described with more exactness 
 than is required in naming the party entitled by an obligation or con- 
 tract constituting a chose in action. But even in grants and convey- 
 ances it is sufficient if the name be expressed in re and sensu, al- 
 though not in vcrbis. And in all cases a misnomer may be aided by 
 a verdict or an averment. 3 
 
 These principles are noticed and relied on in the case of the Mayor 
 and Burgesses of Lynn Regis, 4 the case of misnomer of corporations 
 reported by Lord Coke, and which was cited in the argument for the 
 defendants. In that case the defendant, who was sued upon a bond 
 
 1 Statement abridged, and only part of opinion given, arguments omitted. 
 
 2 Salk. 4fi2; Com. Dig. Fait. B. 1 E. 3; Grant. A. 2; Co. Lit. 3; 2Rol. 42. 
 
 3 Dyer, 279. 
 
 4 10 Co. Rep. 120.
 
 826 MEDWAY COTTON MANUFACTORY V. ADAMS. 22$ 
 
 given to the corporation, pleaded non est factum, and relied upon a 
 variance in the bond from the true and right name of the corporation. 
 But the plaintiffs had judgment, notwithstanding the misnomer. 
 
 In a more modern case 1 the misnomer of a corporation was con- 
 sidered with a view to the argument which has been urged in the case 
 at bar, that a corporation is a creature of the law, having no essence 
 but what is derived from its name. In an action for tolls which ac- 
 crued to the plaintiffs in their corporate capacity, and as a duty to the 
 corporation, the corporate name of the plaintiffs was mistaken; and 
 the declaration was in a name variant from the name given them in 
 their charter. But the decision was, that the misnomer was not to be 
 taken advantage of at the trial as a ground of nonsuit; and was only 
 pleadable in abatement, as in the case of an existing person. 
 
 It may be objected that the variances in the cases cited of misnomer 
 of corporations are not so considerable or material as the variance is 
 in the case at bar, where the name of the promisees, as it is expressed 
 in the note, is totally different from the name of the plaintiffs in their 
 corporate capacity. The inquiry, however, is in this case, as it was 
 in the cases of misnomer which have been cited, of the description of 
 the promisees, or parties in the note or contract declared on. Does 
 the name in the note sufficiently indicate the plaintiffs? Were they 
 known by it as the promisees? Now this depends, in part at least, 
 upon any inquiry of facts which may or may not be proved, and 
 which may be provable by evidence extraneous to the note, or, for 
 aught that appears, the note itself may maintain the plaintiff's aver- 
 ment, that it was made to them by the name therein expressed. In 
 an action of assumpsit there is no profert of the writing declared on, 
 and this is not like a demurrer for variance as in a case of oyer of a 
 deed. In such a case, a different construction might be required if 
 there were no averments to identify the plaintiffs in the action with 
 the description given of them in their deed. 
 
 Upon this demurrer we have only to determine whether the decla- 
 ration is in itself absurd and repugnant and incapable of proof. We 
 think it is not, upon the authorities respecting misnomers of corpora- 
 tions, or upon the reason of the thing. The declaration is adjudged 
 good, and the plaintiffs are to have judgment to recover their demand. 2 
 
 Note. Effect of misnomer. 
 
 1. In case of contracts, grants and devises misnomer does not invalidate if 
 the identity of the corporation can be established. 1809, Inhabitants of Mid- 
 dletown v. McCormick, 3 N. J. L. (2 Penn. *500) 92; 1816, New York African 
 Soc. v. Varick, 13 Johns. 38; 1820, Berks & D. T. R. v. Myers, 6 Serg. & R. 
 12, 9 Am. Dec. 402; 1840, Milford & C. Turnp. v. Brush, 10 Ohio 111, 36 Am. 
 Dec. 78; 1854, Kentucky Sera. v. Wallace, 15 B. Mon. (Ky.) 35; 1862, Mount 
 Palatine Acad. v. Kleinschintz, 28 111. 133; 1867, Commissioners v. Louisville 
 Orphans' Home, 3 Bush (Ky.) 365; 1871, Athearn v.Ind. Dist. of Millersburg, 
 33 Iowa 105; 1873, St. Luke's, etc., v. Association, 52 N. Y. 191 ; 1873, Walrath 
 v. Campbell, 28 Mich. Ill ; 1875, Lefevre v. Lefevre, 59 N. Y. 434 ; 1884, Clement 
 v. City of Lathrop, 18 Fed. Rep. 885; 1889, Chilton v. Brooks, 71 Md. 445; 
 1895, Woodrough & Hanchett v. Witte, 89 Wis. 537; 1899, Precious Blood 
 Soc. v. Elsythe, 102 Term. 40, 50 P. W. Rep. 759. 
 
 1 1 Bos. & Pul., 40; 1 Chitty, 252; 3 Ans., 935. 
 * See 2 Bos. & Pul., 339, Elliot et al. v. Davis.
 
 225 CHANGE OF NAMK. 827 
 
 But in England it is, by statute, more serious leading to individual liabil- 
 ity of the corporate officer making the contract. 1858, Penrose v. Martyr, El. 
 Bl. & El. 96 E. C. L 499; 1889, Atkin v. Wardle, 61 L. T. 23. 
 
 2. In process. 
 
 (a) Issuing summons against a corporation by the wrong name is not a 
 valid beginning of the suit against the corporation. 1835, Bank of Virginia v. 
 Craig, 6 Leigli (Va.)399; 1878, Pennsylvania Co. v. Sloan 1 111. App. 364; 
 1892, South. Pac. Co. v. Block, 84 Texas 21. 
 
 (b) But if process is issued against the corporation in the wrong name, the 
 mistake can be corrected by amendment. 1809, Bullard v. Nantucket Bank, 
 
 5 Mass. 99; 1832, Burnhain v. Strafford Co. Sav. Bank, 5 N. H. 573; 1857, 
 Lane v. Seaboard & R. Co., 56 N. C. 25; 1860, Edinboro Acad. v. Robinson, 
 37 Pa. St. 210, 78 Am. Dec. 421; 1860, Keech v. B. & W. R. Co., 17 Md. 32; 
 1876, Roberts v. Nat'l Ice Co., 6 Daly (N. Y.) 426; 1885, Thompson v. Allen, 
 86 Mo. 85. 
 
 (c) So, if a corporation has process issued for it in a wrong name, it is 
 ground for plea in abatement. 1842, Beene v. Cahawba & M. R. Co., 3 Ala. 
 660. See infra, under pleadings. 
 
 3. In pleadings. 
 
 (a) In actions against a corporation, transposition of words or other like, 
 or slight, variations are not material: 1809, Bullard v. Nantucket Bank, 5 
 Mass. 99; 1814, Sherman v. Conn. B. Co., 11 Mass. 338; 1831, Burnham v. 
 Stafford Sav. Bank, 5 N. H. 446; 1864, Board of Ed. v. Greenebaum, 39 111. 
 610. But see supra, under process (a). 
 
 (6) And the corporation defendant may, by appearance, waive what would 
 otherwise be material variations: 1842, Stone v. Cong Soc., 14 Vt. 86; 1875, 
 Wilton Town Co. v. Humphrey, 15 Kan. 372; 1880, Mobile & M. R. Co. v. 
 Yeates, 67 Ala. 164; 1886, Young v. South T. I. Co., 85 Tenn. 189; 1887, Bate 
 Refrig. Co. v. Gillett, 31 Fed. Rep. 809. 
 
 (c) In actions by the corporation, care is required that no part of the name 
 be omitted: 1867, Bartlett v. Brickett, 96 Mass. (14 Allen) 62; 1873, Drum- 
 heller v. First IT. C., etc., 45 Ind. 275. 
 
 (d) But slight variations, not misleading as to the identity of the corpora- 
 tion plaintiff, are not material: 1832, Burnham v. Sav. Bank, 5 N. H. 573; 
 1838, Mechanics & T. Bank v. Prescott, 12 La. 444; 1869, Thatcher v. W. R. 
 N. B., 19 Mich. 196; 1880, State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am. Rep. 
 583. 
 
 (e) Defendant can take advantage of mistake in name of corporation plaint- 
 iff only by plea in abatement: 1841, Gray v. Monongahela Nav. Co., 2 Watts 
 
 6 S. Co. (Pa.) 156, 37 Am. D. 500; 1845, Trustees of M. E. Church v. Tryon, 
 1 Denio (N. Y.) 451; 1851, Hanover Sav. F. Soc. v. Suter, 1 Md. 502; 1869, 
 Northumb. Co. Bank v. Eyer, 60 Pa. St. 436. 
 
 (/) As to effect of judgment rendered in wrong name, see, 1855, Lafayette 
 Ins. Co. v. French, 18 How. (59 U. S.) 404; 1878, Lehman D. & Co. v. Warner, 
 61 Ala. 455; 1879, Wilson v. Baker, 52 Iowa 423; 1880, Brown v. T. H. & I., 
 etc., Co., 72 Mo. 567. 
 
 Sec. 226. Change of corporate name. 
 
 CINCINNATI COOPERAGE COMPANY v. BATE. 1 
 
 1894. IN THE COURT OF APPEALS OF KENTUCKY. 96 Ky. Rep. 
 356-361, 49 Am. St. Rep. 300. 
 
 [The cooperage company sued Bate upon a draft accepted by the 
 Gebhart & Bate Brewing Company. The facts showed that originally 
 
 1 Statement greatly abridged, and only part of opinion given. (Cook Corp., 
 243, thinks this decision is erroneous.)
 
 828 CINCINNATI COOPERAGE COMPANY V. BATE. 226 
 
 the New Albany Brewing Company was organized under the In- 
 diana laws. Afterwards Gebhart, Bate and another acquired all the 
 stock of this company, became its directors, and without complying 
 with the Indiana statute, changed the name to the Gebhart & Bate 
 Brewing Company, and continued to do business in that name. The 
 plaintiff contended that the parties thereby became liable individually 
 or as partners and the superior court so held. On appeal to the Lou- 
 isville law and equity court it was ruled otherwise, and this is the 
 error assigned.] 
 
 HAZELRIGG, J. * * * The name of a corporation is "the very 
 being of its constitution, the knot of its combination, without which 
 it could not perform its corporate functions." (Smith's Mercantile 
 Law, 3d edition, 141.) 
 
 "When a corporation is created a name must be given to it, and 
 by that name alone must it sue and be sued and do all legal acts." 
 (i Blackstone's Comm. 474-) 
 
 "The law knows a corporation only by its corporate name." 
 (Walker's American Law, pth edition, 232.) 
 
 "A corporation has no right or power of itself to change or alter 
 the name originally selected by it without recourse to such formal 
 proceedings as are prescribed by law." (Beach on Private Corpora- 
 tions, section 275.) The effect of such change of name is an abandon- 
 ment not only of the corporate name, but of the corporation itself. 
 The identity of the creature authorized by the statute to do business 
 is destroyed. It is in no sense like the case where an individual 
 changes his name. The very being of its constitution is destroyed 
 by an abandonment of its name and an attempted substitution of a 
 new name without authority of law. In the case of Fuller v. Rowe, 
 57 N. Y. 26, it was said: "Parties assuming to act in a corporate 
 capacity without a legal organization as a corporate body are liable 
 as partners to those with whom they contract." In Robinson v. 
 Harris, 5 Ky. Law Rep. 928, it was held that the corporate exist- 
 ence of associations provided for in chapter 56, General Statutes, de- 
 pends upon and begins only after the terms of the law are substan- 
 tially complied with, and until the notice required by section 5 has 
 been published, the association has no right to begin business as a 
 corporation, and because such notice had not been published, the 
 members were held liable as individuals. We concur in the conclu- 
 sions reached by the superior court in this case, that "The Gebhart 
 & Bate Brewing Company had no right to do business as a corpora- 
 tion until the members had complied with the law. Until they did 
 so, no corporation existed. The stockholders were merely doing 
 business as partners, and as such are individually liable for the debts." 
 Judgment reversed and cause remanded for proceedings conforma- 
 ble to this opinion. 
 
 Note. Change of name. 
 
 (a) Corporation can change its name only by consent of the state: 1847, 
 Reginav. Registrar, 10 Q. B. (Ad. & E.l, 59 E. C. L. 839; 1884, Goodyear 
 Rubber Co. v. Goodyear, 21 Fed. Rep. 276; 1890, Sykes v. People, 132 111. 32.
 
 226 CHANGE OF NAME. 829 
 
 (b) And the name can be changed only by consent of the shareholders: 
 1873, Morris v. St. Paul, etc., R. Co., 19 Minn. 528; 1879, Anthony v. Inter- 
 national Bank, 93 111. 225; 1883, Wells v. Oregon R. & Nav. Co.. 15" Fed. Rep. 
 561; 1899, In re Societe Francaise, etc., 123 Cal. 525. 
 
 (c) Such a change made by the legislature is an amendment, under consti- 
 tutional provisions forbidding special acts: 1876. Chicago D. & M.v. Keisel, 
 43 Iowa 39; 1899, In re La Societe Francaise, 123 Cal. 525-. But see, 1843, 
 Doe v. Norton, 11 Mees. & W. 928; 1882, Hazelett v. Butler Univ., 84 Ind. 
 230. 
 
 (d) Such change, if legal, does not affect the rights, duties or liabilities of 
 the corporation: 1843, The President, etc., of Ft. Wayne v. Jackson, 7 Blackf. 
 (Ind.) 36; 1852, Trinity Church v. Hall, 22 Conn. 125; 1857, Hyatt v. 
 McMahon, 25 Barb. (N. Y.) 457; 1858, Rosenthal v. Madison, etc., R. Co., 10 
 Ind. 358; 1869, Olney v. Harvey, 50 111. 453; 1875, Dean v. La Motte Lead 
 Co., 59 Mo. 523; 1878, Heckel v. Sanford, 40 N. J. L. 180; 1879, Macon & A. 
 R. Co. v. Goldsmith, 62 Ga. 463; 1895, McCloskey y. Doherty, 97 Ky. 300. 
 
 (e) Statutes usually provide a method for changing the corporate name : e. 
 g., the laws of Michigan provide that any corporation "organized under the 
 laws of this state may amend its articles of association by a vote of not less 
 than two-thirds in interest of all its stockholders, but before it shall com- 
 mence any business under its amended articles the said corporation shall 
 cause such amendment or amendments, subscribed by at least two-thirds in 
 interest of all its stockholders, and certified by its president, to be filed or 
 recorded, as the case may be, in the same manner as is provided for in the 
 original articles of incorporation, and when so recorded, such amendment or 
 amendments shall become a part of the articles of incorporation of such com- 
 pany." Comp. L., 8583. 
 
 When a corporation having the right to change its name has done all the 
 statute requires, the secretary of state may be compelled by mandamus to reg- 
 ister the change: 1897, State v. Pritchett, S. I. & Lesueur, 141 Mo. 29; 1900, 
 People v. Payn, 161 N. Y. 229.
 
 TITLE VI. THE CORPORATE LIFE. 
 
 CHAPTER 10. 
 THE MODE OF CORPORATE EXISTENCE AND ACTION. 
 
 ARTICLE I. MODE OF EXISTENCE. 
 
 Sec. 227. Perpetual succession. 
 
 THE STATE, Ex EEL. WALKER, ATTY.-GEN'L, v. PAYNE. 1 
 
 1895. IN THE SUPREME COURT OF MISSOURI. 129 Mo. Rep. 
 
 468-482. 
 
 [Quo ivarranto by the attorney-general against Payne and his asso- 
 ciates, charging them with usurping the franchise of being a corpora- 
 tion, after the term of corporate existence was alleged to have ex- 
 pired. The defense was that the term had not expired.] 
 
 MACFARLANE, J. * * * The only question presented by the 
 pleadings which we deem it necessary to discuss is whether, under the 
 act incorporating the Kansas City Gaslight and Coke Company, its 
 corporate rights and powers ceased at the expiration of thirty years 
 after the act became a law. The question is one of vast importance 
 both to the corporation and the citizens of Kansas City. The corpo- 
 ration has expended and now has invested a large amount of money 
 in plants, mains and other property, which will necessarily be much 
 depreciated in value should the property go into the hands of the 
 stockholder or trustees for the settlement of the corporate business. 
 The citizens, and city itself, have also great interest in securing ade- 
 quate light at reasonable rates. These considerations, however, can 
 not affect the legal principles involved. 
 
 At the time the act in question was passed the general law of the 
 state concerning corporations declared: "Every corporation, as such, 
 has power to have succession by its corporate name for the period 
 
 1 Statement, arguments and part of opinion omitted. Sufficient facts are 
 stated in the opinion for an understanding of the case. 
 
 (830)
 
 226 PERPETUAL SUCCESSION. 83 1 
 
 limited in its charter, and when no period is limited, for twenty years." 
 The first section of the act incorporating the said gaslight and coke 
 company granted to it "perpetual succession." The second section 
 grants to the corporation the "exclusive right and power of manufac- 
 turing gas and coke from any substance whatever for and within the 
 city of Kansas, Jackson county," for the term of thirty years. 
 
 It is insisted by respondents that the grant of "perpetual succes- 
 sion," without other limiting words, gave to the corporation the right 
 to perpetual existence, and that the limitation of thirty years, con- 
 tained in section 2, was not intended to limit the duration of corporate 
 existence, but of the exclusive rights specified. * * * 
 
 The word perpetual, as used in the act, expressly qualifies the suc- 
 cession and not the duration of the corporate existence. In the con- 
 nection used, does it imply that the legislature intended to grant the 
 corporation unlimited existence? The word itself does not necessarily 
 so imply. It has more than one meaning, as "everlasting," "con- 
 tinued," "uninterrupted." All lexicographers give these or equiva- 
 lent words as proper definitions of the word "perpetual." 
 
 The word "succession," in its common legal use, denotes the 
 devolution of title to property under the laws of descent and distribu- 
 tion. It is defined as "the coming in of another to take the property 
 of one who dies without disposing of it by will." Title to corporate 
 property and franchises is held continuously and uninterruptedly by 
 and in the name of the corporation, and not in the names of the vari- 
 ous stockholders. There is no devolution of title in case of the death 
 of a membter or stockholder. The succession is not interrupted, but 
 continues in the corporation. The succession is continuous during the 
 life of the corporation, whether it be for years or for an unlimited 
 time. 
 
 Blackstone says that the very end of a corporation is ' 'to have per- 
 petual succession," "for there can not be a succession forever with- 
 out an incorporation." i Cooley's Blk. Com., 475. Chancellor 
 Kent says: "A corporation is a franchise possessed by one or more 
 individuals, who subsist as a body politic under a special denomina- 
 tion, * * * with the capacity of perpetual succession and of 
 acting in several respects, however numerous the association may be 
 as a single individual." 2 Kent's Com., 268. 
 
 The duration of a corporation, though unlimited by its charter, and 
 though it is given the capacity to have perpetual succession, can not 
 be regarded as everlasting within the general and common meaning 
 of that word. It may be dissolved and cease to exist for want of 
 members, by voluntary surrender of franchises, forfeiture by misuser, 
 etc. Ang. & Ames Corp. [n ed.], 8. 
 
 It will be found, by reference to all the authorities, that a grant of 
 capacity to take in "perpetual succession" refers rather to the con- 
 tinued legal identity and succession than to continuous or perpetual 
 succession, i Blk. Com., supra; 2 Kent's Com., supra; i Dill. 
 Munc. Corp., 18; Dartmouth College Case, 4 Wheat. 636; Field 
 Corp., i and 71.
 
 832 STATE V. PAYNE. 22/ 
 
 "The immortality of a corporation means only its capacity to take 
 in perpetual succession as long as the corporation exists. So far is it 
 from being literally true ' that a corporation is immortal, many corpo- 
 rations of recent creation are limited in their duration to a certain 
 number of years." Ang. & Ames Corp., 8. 
 
 Aggregate corporations are "immortal, because, in the judgment 
 of law, they never die, yet in point of fact, like natural persons, they 
 are subject to death and dissolution in various ways. * * * Its 
 immortality, therefore, means only its capacity to take and to act in 
 perpectual succession so long as the corporation exists." Potter 
 Corp., 2. 
 
 "When it is said that corporations have perpetual succession, it is 
 meant that they have continuity only during any limited period of 
 time which may be fixed by the law of their creation. * * * In 
 the proper and more restricted sense the immortality of a corporation 
 means only its capacity to take in perpetual succession so long as it 
 exists. Spelling Priv. Corp., 4. 
 
 Chancellor Kent says: "It is sometimes said that a corporation is 
 an immortal as well asraii invisible and intangible being. But the 
 immortality of a corporation means only its capacity to take in per- 
 petual succession so long as the corporation exists." 2 Kent, supra. 
 
 Thus, it appears that the words "perpetual succession" as used in 
 charters generally mean nothing more than that the corporation should 
 have continuous and uninterrupted succession so long as it should con- 
 tinue to exist as a corporation, and are not intended to define its du- 
 ration. If no limit is fixed to its existence then it would have an in- 
 definite or unlimited duration. Morawetz on Corp., 411. 
 
 The general law in force at the time this special act was passed de- 
 clared that every corporation should have the capacity of succession 
 by its corporate name for the period limited in its charter, and when 
 no period was limited, for twenty years. R. S. 1855, i, p. 369. 
 
 It is claimed by respondents that this provision of the general law 
 is inconsistent with this special act of incorporation and was ex- 
 pressly repealed by the ninth section. But if, as we have seen to be 
 the case, the words "perpetual succession" were intended to imply 
 nothing more than a continuous succession during the existence of the 
 corporation, then there is no inconsistency. The general law must be 
 read into and made a part of the special act. The general. law must be 
 taken as declaring the intent of the legislature in respect to the dura- 
 tion of the corporation. As is said: "Statutes granting such special 
 privileges are, in one sense, to be read together and construed in con- 
 formity with general statutes laying down universal rules applicable 
 to the class of corporations to which the one claiming under the spe- 
 cial act belongs." Endlich Interpretation of Statutes, 56. 
 
 Reading the general law and the first section of the special act to- 
 gether the duration of the corporate existence of the gaslight company 
 is clearly fixed at twenty years. It does not seem that a doubt of the
 
 228 MODE OF ACTION. 833 
 
 legislative intent can be raised, but if one should exist it must be re- 
 solved against the corporation. * * * 
 Judgment of ouster. 
 
 Note. The foregoing case is contrary to 1881, State ex rel. etc., v. Stormont, 
 24 Kan. 686, which is distinguished, and also to 1880, Fairchild v. Masonic 
 Hall Assn., 71 Mo. 526, which it overrules. It also seems to conflict with 
 1889, State v. Ladies of the Sacred Heart, 99 Mo. 533, which is not mentioned 
 in the case. The later case of 1897, State, etc., v. Lesueur, 141 Mo. 29, where 
 the language used was "the trusteeship shall be perpetual," with a provision 
 for each trustee to appoint his successor, holds that "a continuous or per- 
 petual term" of existence is clearly implied. The case of 1878, Scanlan v. 
 Crawshaw, 5 Mo. App. 337, is in accord with the principal case. 
 
 In case the duration is not expressly limited in some way the corporation 
 is supposed to have the right of an endless existence, if it is not guilty of mis- 
 user or non-user, so that the state can complain of a forfeiture: 1841, Van- 
 derbilt v. Eagle I. W., 25 Wend. (N. Y.) 665; 1850, Farmers' L. & T. Co. v. 
 Clowes, 3 N. Y. 470; 1879, East Tenn. Mfg. Co. v. Gaskell, 70 Tenn. (2 Lea) 
 742; 1889, State v. Ladies of the Sacred Heart, 99 Mo. 533; 1892, Cronin 
 v. Potters' Co-op. Co., 29 W. L. B. (Ohio) 52; 1897, State v. Lesueur, 141 
 Mo. 29. 
 
 Charter, statutory or constitutional provisions usually fix the period of ex- 
 istence. Many of these fix the limit in such a way that the articles of associa- 
 tion can not provide for a longer duration: 1876, Atlantic & G. R. Co. v. 
 Allen, 15 Fla. 637; 1884, People v. Cheeseman, 7 Colo. 376; 1890, MarysvMle 
 Iny. Co. v. Munson, 44 Kan. 491. 
 
 Some statutes, however, fix a limit only in case the articles of association 
 do not name a limit. See the Missouri cases cited above, and 1887, Stead- 
 man v. Merchants' & P. Bank, 69 Tex. 50. 
 
 ARTICLE II. MODE OF ACTION; SHAREHOLDERS AND DIRECTORS. 
 
 Sec. 228. Shareholders' meeting. 1 
 
 DUKE v. MARKHAM. 1 
 
 1890. IN THE SUPREME COURT OF NORTH CAROLINA. 105 N. C. 
 Rep. 131-138, 18 Am. St. Rep. 889. 
 
 [Action by Duke to recover from Markham certain property he 
 had taken possession of as the property of a corporation by virtue of 
 executions in his hands. Plaintiff claimed under a mortgage by the 
 corporation which the trial judge instructed the jury was valid. The 
 error assigned was this instruction and allowing the mortgage to be 
 put in evidence. The secretary of the corporation testified as to the 
 execution of the mortgage as follows: "Before this mortgage was 
 executed he went around and saw the stockholders separately in 
 
 1 See Ang. & Ames, 487-514; Beach, 272-298; Boone, 62-6; Clark, 
 pp. 462-493; Cook, 589, et seq.; Elliott, 4(53-493; Morawet/, 474-533, 
 641-7 ; Taylor, 184, 573-6; I Thompson, 686-697 ; II Thompson, 1900- 
 1910; III Thompson, 3905-37; V Thompson, 6176-6486; VII Thomp- 
 son, 8451-90. 
 
 * Statement abridged, only part of opinion given. 
 
 53 WIL. CASES.
 
 834 DUKE V. MARKHAM. 228 
 
 regard to executing it ; he did not see all the stockholders or directors, 
 he saw a majority of them ; they had no meeting, but each one he 
 saw authorized him to execute the mortgage ; the plaintiff requested 
 the president and two stockholders to sign the mortgage ; this was 
 done; Mr. Duke signed the note for $3,000, and witness got the 
 money from the Raleigh National Bank ; the money was used in the 
 business of the corporation ; he said nothing more to the stockholders 
 or directors ; the directors were stockholders ; the note has never been 
 paid ; it sometimes happened that we could not get a meeting of the 
 board of directors ; they did not attend the meetings regularly ; the 
 mortgage was delivered to W. Duke immediately."] 
 
 CLARK, J. * * * We think his honor erred in admitting the 
 mortgage in evidence upon such probate, and likewise in instructing 
 the jury, upon the proof offered by plaintiff, that it was valid as to 
 creditors whom defendant represented by virtue of the executions in 
 his hands. 
 
 In Pierce v. New Orleans Building Co., 9 La. 397, it is held that the 
 act of a majority of the stockholders, expressed elsewhere than at a meet- 
 ing of stockholders, as where the assent of each one is given separately 
 and at different times, is not binding on the corporation. The same 
 is true of a meeting of which notice is not given. Stow v. Wyse, 18 
 Am. Dec. 99 1 and notes; Cook Stockholders, 594 ; i Potter on Cor- 
 porations, 336 and notes. 
 
 In Leggett v. N. J. M. & B. Co., i Saxton Ch. 541, it is held that 
 a corporation is only bound by an agent's acts when within the scope 
 of his authority, and that a president and cashier, as such, can not 
 execute a mortgage of corporate property without special authority 
 from the board of directors or the stockholders, and that the proceeds 
 of a mortgage have been applied to the use of the corporation in pay- 
 ing its debts, or otherwise, is not sufficient to render the mortgage 
 binding if its execution was not properly authorized. 
 
 "The members of a corporation can not, separately and individ- 
 ually, give their consent in such manner as to bind it as a collective 
 body, for in such case it is not the body that acts, and this is no less 
 the doctrine of the common than of the Roman civil law. Being 
 la~dufttlly assembled" says Ayliffe, ''they represent but one person, 
 and may consequently make contracts, and by their collective assent, 
 oblige themselves thereunto. And though all the members of a cor- 
 poration covenanted on behalf of it under their private seals," this, 
 it was held, would only bind them personally, and not the corporation. 
 Angell & Ames Corp., 232, which is supported by the numerous 
 cases there cited. Again, in the same work, section 504: "The 
 separate action, individually, without consultation, although a major- 
 ity in number should agree upon a certain act, would not be the act 
 of the constituted body of men clothed with corporate powers." In- 
 deed, the authorities upon this subject are numerous, uncontradicted 
 and supported by reason. * * * 
 
 Error. 
 
 1 Infra p. 835.
 
 229 MODE OF ACTION. 835 
 
 Note. To same effect see, 1820, Livingston v. Lynch, 4 Johns. Ch.(N.Y.) 573, 
 697 ; 1836, Pierce v. N. O. Building Co., etc., 9 La. 397, 29 Am. Dec. 448; 1841, 
 Shortz v. Unangst, 3 Watts & S. (Pa.) 45; 1847, Smith v. Kurd, 12 M !.-. 
 (Mass.) 371, on 385; 1850, Commonwealth v. Cullen, 13 Pa. St. 133, supra, 
 p. 417; 1851, Langolf v. Seiberlitch, 2 Pars. Eq. Cas. 64; 1854, Ex parle John- 
 son, 31 E. L. & Eq. 430; 1861, Torrey v. Baker, 83 Mass. 120; 1874, Hopkins 
 v. Roseclare Lead Co., 72 111. 373; 1876, Finley Shoe, etc., Co. v. Kurtz, 34 
 Mich. 89; 1877, Clarke v. Omaha & S. R. Co., 5 Neb. 314; 1886, England v. 
 Dearborn, 141 Mass. 590; 1890, Humphreys v. McKissock, 140 U. S. 304, 312; 
 1890, Allemongv. Simmons, 124 Ind. 199; 1898, Sellers v. Greer, 172 111. 549, 
 supra, p. 65; 1898, Troy Min. Co. v. White, 10 S. Dak. 475; 1898, Singer v. 
 Salt Lake, etc., Co., 17 Utah 143; 1898, Morrison v. Wilder Gas. Co., 91 Main* 
 492; 1899, Nicholslone City Co. v. Smalley, 21 Tex. Civ. App. 210, 51 S. W. 
 Rep. 527 ; 1899, De La Vergne Co. v. Ger. Sav. Inst., 175 U. S. 40, on 53. 
 
 But compare 1870, Granger v. Grubb, 7 Phil. 350; 1886, Graham v. B., etc., 
 R., 118 U. S. 161; 1892, Coe v. East., etc., R., 52 Fed. Rep. 531: 1895, In re 
 George N. & Co., L. R. 1 Ch. 674. 
 
 Sec. 229. Shareholders' meetings Notice. 
 STOWE ET AL. v. WYSE. 1 
 
 1828. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 7 
 Conn. Rep. 214-220, 18 Am. Dec. 99. 
 
 This was an action of trespass quare clausum fregit, tried on the 
 general issue at Middletown, February term, 1828, before Dag- 
 gett, J. 
 
 It was admitted that the defendant entered on the premises in May, 
 1825, the time specified in the declaration, and continued in the pos- 
 session and occupation thereof until the commencement of this suit, 
 claiming right as the tenant of the Middletown Bank, and the only 
 question was whether the plaintiffs had title to the land or whether it 
 was in the Middletown Bank. The title of the bank was derived from a 
 mortgage deed of the Middletown Manufacturing Company, dated the 
 29th of March, 1817, to the bank. The title of the plaintiffs was de- 
 rived from a mortgage deed, executed by Arthur W. Magill, some 
 years afterwards. Magill's title was acquired by the regular levy of 
 an execution in his favor against the Middletown Manufacturing Com- 
 pany subsequent to the execution of the deed to the bank. The Mid- 
 dletown Manufacturing Company were the undisputed owners of the 
 land prior to and until their deed of the 29th of March, 1817, above 
 mentioned. That deed was given to the Middletown Bank by Arthur 
 W. Magill as agent for the Middletown Manufacturing Company. It 
 begins thus: "I, Arthur W. Magill, of the town of Middletown, 
 agent for the Middletown Manufacturing Company of said to\vn, being 
 empowered, by a vote of said company, in pursuance of said power," 
 etc. [It contained the usual covenants of seizin and warranty by 
 Magill on behalf of the company. The resolution directing the con- 
 veyance was passed at a meeting at which the holders of only 29 out 
 of 1,000 shares were represented, and of which the others had no 
 notice. Verdict for plaintiff. Motion for new trial.] 
 
 1 Statement abridged, and only part of opinion given.
 
 836 STEVENS V. EDEN MEETING-HOUSE SOCIETY. 2.30 
 
 DAGGETT, J. The plaintiffs, who claim under A. W. Magill's 
 deed to them, allege that no title passed by the deed to the Middle- 
 town Bank ; for that Magill had no authority to bind the Middletown 
 Manufacturing Company and transfer the title. The deed is attempted 
 to be supported, or rather Magill's power is to make it, on two grounds. 
 The first is the vote of the Middletown Manufacturing Company, 
 passed on the 2pth day of March, 1817, the day of the execution of 
 the deed, by which he was authorized to make a mortgage to the bank 
 of the premises. On the other hand, it is insisted that the meeting 
 was illegal, and the acts done void. It is very clear that a meeting of 
 the stockholders, constituted as this was, could do no acts binding on 
 the company. Though a meeting, regularly warned, would be com- 
 petent to do any act within their chartered powers by a bare major- 
 ity, yet if not thus warned their act must be void. If no particular 
 mode of notifying the stockholders be provided, either in the charter 
 or in any by-law, yet personal notice might be given; and this, in 
 such case, would be indispensable. The counsel for the defendant 
 do not press this point, and I think it quite untenable. * * * 
 
 Another position, however, is taken by counsel for defendant 
 which is fatal to the plaintiff's title. * * * 
 
 Now Magill has declared under his hand and seal that he was em- 
 powered by a vote of the company to execute this deed. Can he ever 
 say that he was not thus empowered ? If, on the next day after the 
 deed to the bank was executed, he had procured a valid deed from 
 the company, and had brought ejectment against the bank, could he 
 have sustained it against the declarations in his deed ? I think he must 
 have been estopped. If so, then all persons claiming under and 
 through him are estopped, i Stark. Ev., 305; Hoyt v. Dimon, 5 
 Day 483; i Phill. Ev., 10. 
 
 These principles are in entire accordance with the case of Fairtitle 
 d. Mytton et al. v. Gilbert et al., 2 Term Rep. 169, 171 ; Palmer v. 
 Elkins, 2 Stra. 817; Com. Dig., tit. Estoppel, A, I, 2, 3 and B. 
 
 There must, therefore, be a new trial. 
 
 Note. See note at end of next case. 
 
 Sec. 230. Same. 
 
 STEVENS v. EDEN MEETING-HOUSE SOCIETY. 
 1839. IN THE SUPREME COURT OF VERMONT. 12 Vt. Rep. 6889. 
 
 This was an action of assumpsit on an award. Plea, non-assumpsit. 
 
 On the trial the plaintiff produced the defendants' book of records, 
 which showed a society regularly organized under the statute consti- 
 tuting them a corporation. The by-laws provided that, among other 
 officers, a clerk or secretary should be chosen, and one had been 
 regularly elected. The by-laws provided that all meetings were to
 
 230 MODE OF ACTION. 837 
 
 be warned by the clerk, by posting up a written notice thereof. This 
 appears to have been done and the records regularly kept up to 
 December, 1836. The plaintiff then offered to prove, by parol testi- 
 mony, that said society continued its meetings, that the persons who 
 joined him in the submission were, at that time, and at the publish- 
 ing of the award, the prudential committee of said society, and that 
 after the award was made and published, said society voted to 
 approve and confirm the same. This was objected to by the defend- 
 ants and was rejected by the court, to which the plaintiff excepted. 
 Verdict and judgment having passed for the defendants, the cause 
 passed to the supreme court. 
 
 The opinion of the court was delivered by 
 
 COLLAMER, J. A corporation, and every member thereof, is 
 bound by a vote of the majority present at a meeting warned agree- 
 ably to the laws of the corporation, and not otherwise. If no provis- 
 ion is made for such warning every member must have personal 
 notice. Here the clerk was authorized to warn a meeting by posting 
 up a written notice. No other mode of calling a meeting could be 
 shown, and most clearly this could not be proved by parol until the 
 loss of the notification was first proved, but this was not attempted. 
 Here was an attempt to add to the records by parol, whole warnings, 
 meetings and votes. This is clearly inadmissible, and the fact that 
 no record of meetings after 1836 appeared on the books does not 
 authorize this. The want of such record only shows that no such 
 meeting was held. If it be asked, what is to be done by third per- 
 sons, if a corporation will not record its appointments and votes, the 
 answer is, refuse to recognize or act on any such assumed authority 
 or unrecorded votes, or hold them personally liable who misrepresent 
 their authority. 
 
 Judgment affirmed. 
 
 Note. Notice of corporate meeting's. 
 
 1. Notice of corporate meetings is necessary to their validity and the va- 
 lidity of the business done at, a meeting as against a stockholder who had no 
 notice, was not present, and who objects promptly: 1844, Wiggin v. First 
 Freewill B. Ch., 8 Mete. (49 Mass.) 301 ; 1850, Commw. v. Cullen, 13 Pa. St. 
 133, 53 Am. Dec. 450, supra, p. 417; 1852, Stebbins v. Merritt, 10 dish. (Mass.) 
 27; 1871, Westcott v. Minnesota M. Co., 23 Mich. 145; 1876, Shelby R. Co. v. 
 L. C. & L. R. Co., 12 Bush (75 Ky.) 62; 1892, Coe v. East & W. R. Co., 52 
 Fed. Rep. 531; 1893. Morrill v. Little Falls Mfg. Co., 53 Minn. 371, 21 L. R. 
 A. 174, infra, p. 839; 1898, Wall v. London & N. A. Corp., 79 L. T. (N. S.) 
 249, 67 L. J. Ch. 596; 1899, Heller v. National M. Bank, 89 Md. 602, 45 L. R. 
 A. 438. 
 
 2. In the absence of charter, by-law or statutory provision, personal notice 
 is required: 1830, Savings Bank v. Davis, 8 Co'nn. 191; 1834, Bethany v. 
 Sperry, 10 Conn. 200; 1841, Evans v. Osgood, 18 Maine 213; 1844, Wiggin v. 
 Freewill B. C., 8 Mete. (Mass.) 301; 1860, People v. Batchelor, 22 N. Y. 128; 
 I860, People's Ins. Co. v. Westcott, 14 Gray (Mass.) 440; 1870, Harding v. 
 Vandewater, 40 Cal. 77. 
 
 3. But statutory, charter or by-law provisions should be followed: 1871, 
 Westcott v. Minn". M. Co., 23 Mich. 145; 1876, Stockholders, etc., v. Louisville, 
 etc., R. Co., 12 Bush (Ky.) 62; 1877, Tattle v. Mich. Air Line, 35 Mich. 247; 
 1884, Reilly v. Oglebay," 25 W. Va. 36; 1897, Matthews v. Columbia Nat'l 
 Bank, 79 Fed. Rep. 558.
 
 838 STEVENS V. EDEN MEETING-HOUSE SOCIETY. 230 
 
 4. However, it is frequently held that statutory, charter and by-law pro- 
 visions relating to quorum, notice and business to be done are wholly for the 
 benefit of the shareholders only, and if they do not complain of the irregu- 
 larity others can not: 1881, Beecher v. Marquette & P. R. M. Co., 45 Mich. 
 103; 1882, Thomas v. Citizens', etc., R. Co., 104 111. 462; 1889, Manhattan 
 Hardware Co. v. Phalen, 128 Pa. St. 110; 1890, Wood v. Corry Water-Works 
 Co., 44 Fed. Rep. 146; 1892, Nelson v. Hubbard, 96 Ala. 238, 17 L. R. A. 375; 
 1896, Atlantic Trust Co. v. The Vigilancia, 73 Fed. Rep. 452 ; 1898, In re A. A. 
 Griffing Iron Co., 63 N. J. L. 168, 41 Atl. Rep. 931. But compare. 1885, State v. 
 McGrath, 86 Mo. 239. 
 
 5. If the time of holding meetings is fixed definitely by statute, charter, by- 
 law or custom, no further notice is necessary, unless extraordinary or special 
 business is to be done: 1839, Warner v. Mower, 11 Vt. 385, 393; 1858, Atlantic 
 M. F. Ins. Co. v. Sanders, 36 N. H. 252, 269; 1878, State v. Bonnell, 35 O. S. 
 10, 15; 1893, Morrill v. Little Falls Mfg. Co., 53 Minn. 371, infra, p. 839; 1899. 
 Heller v. National Marine Bank, 89 Md. 603, 45 L. R. A. 438. 
 
 6. Notice should be definite and specific: (a) As to time day and hour: 
 1858, Atlantic M. F. Ins. Co. v. Sanders, 36 N. H. 252; 1860, People v. Batch- 
 elor, 22 N. Y. 128; 1875, San Buenaventura, etc., Co. v. Vassault, 50 Cal. 534; 
 1876, Shelby R. Co. v. L., C. & L. R. Co., 12 Bush (Ky.) 62. 
 
 (b) As to place: 1848, Miller v. English, 21 N. J. L. 317 ; 1856, Jones v. Mil- 
 ton & R. T. R. Co., 7 Ind. 547; 1875, San Buenaventura, etc., Co. v. Vassault, 
 
 50 Cal. 534. 
 
 (c) As to business to be done, unless the meeting is a stated one at which it 
 is understood any corporate business may be done: 1841, Evans v. Osgopd, 
 18 Maine (6 Shep.) 213; 1853, Sampson v. Bowdoinham, etc., Co., 36 Maine 
 78; 1860, People Mut. Ins. Co. v. Westcott, 14 Gray (Mass.) 440; 1866. Be 
 Bridport Old Brewery Co., L. R. 2 Ch. Div. 191 ; 1877,' Tuttle v. Michigan Air 
 Line, 35 Mich. 247; 1881, Beecher v. Marquette & P. R. M. Co., 45 Mich. 103; 
 1885, American Tube Works v. Boston Mach. Co., 139 Mass. 5; 1890, Stutz v. 
 Handley, 41 Fed. Rep. 531 ; 1892, Evans v. Boston Heating Co., 157 Mass. 37. 
 
 7. But if the meeting is one prescribed by the charter, by-law or statute, at 
 which it is usual to transact the general corporate business, the notice need 
 not specify the business to be done: 1839, Warner v. Mower, 11 Vt. 385; 1853, 
 Samson v. Bowdoinham, etc., Co., 36 Maine 78; 1858, Atlantic De Laine Co. 
 v. Mason, 5 R. I. 463; 1891, Chicago, etc., R. v. Union Pac. R., 47 Fed. Rep. 
 15; 1892, Jones v. Concord & M. R., 67 N. H. 234, 38 Atl. Rep. 120; 1893, Mor- 
 rill v. Little Falls Mfg. Co., 53 Minn. 371, 21 L. R. A. 174, infra, p. 839. 
 
 8. But if unusual or extraordinary business is to be done at a general meet- 
 ing, statutes frequently require the notice to specify that such business is to 
 be done: 1892, Jones v. Concord & M. R. Co., 67 N. H. 234; 1898, Mutual 
 Fire Ins. Co. v. Farquhar, 86 Md. 668. 
 
 9. If the meeting is called to do specific business designated in the notice, 
 no other business can be transacted at such meeting against the protest of 
 members, or bind those absent: 1839, Warner v. Mower, 11 Vt. 385; 1841, 
 Evans v. Osgood, 18 Maine (6 Shep.) 213; 1860, Peoples' Mut. Ins. Co. v. 
 Westcott, 14 Gray (Mass.) 440; 1898, Wall v. London & N. A. Corp., 79 L. 
 T. (N. S.) 249, 67 L. J. Ch. 596. But see, 1892, Evans v. Heating Co., 157 
 Mass. 37. 
 
 10. However, if all the members are present and consent, other or different 
 business may be transacted. 1809, Rex v. Theodorick, 8 East 543; 1852, Steb- 
 bins v. Merritt, 10 Gush. (Mass.) 27; 1891, Handley v. Stutz, 139 U. S. 417; 
 1892, Nelson v. Hubbard, 96 Ala. 238; 1892, Campbell v. Argenta, etc., Co., 
 
 51 Fed. Rep. 1; 1895, Bridgeport Electric Co. v. Meader, 72 Fed. Rep. 115; 
 1898, In re A. A. Griffing Iron Co., 63 N. J. L. 168, 41 Atl. Rep. 931. 
 
 11. No further notice is necessary of an adjourned meeting, or the business 
 to be done thereat, than the record of the resolution adjourning a duly called 
 meeting to a definite time and place. 1897, Western Imp. Co. v. Des Moines 
 M. N. Bank, 103 Iowa 455, 72 N. W. Rep. 657; 1897, State v. Cronan, 23 Nev. 
 437, 49 Pac. Rep. 41. But if the time to which the meeting is adjourned is not
 
 231 MODE OF ACTION. 839 
 
 definitely fixed further notice must be given. 1888, Thompson v. Williams, 
 76 Cal. 153. 
 
 12. Notice must be given by the officer having authority, puch as the board 
 of directors or the general manager, but not the president or secretary with- 
 out special authority. 1834, Betheny v. Sperry, 10 Conn. 200; 1841, Evans v. 
 Osgood, 18 Maine 213; 1852, Stebbins v. Merritt, 10 Cush. (Mass.) 27; 1872, 
 Johnston v. Jones, 23 N. J. Eq. 216; 187-\ State v. Pettineli, 10 Nev. 141 ; 1882, 
 Toronto, etc., Co. v. Blake, 2 Out. 175; 1888, Cassell v. Lexington, etc., Co., 
 10 Ky. L. Rep. 486, 9 S. W. Rep. 502, 701 ; 1896, Dusenbury v. Looker, 110 
 Mich. 58. 67 N. W. Rep. 986. 
 
 13. Notice, to be valid, must be served a reasonable time before the meeting 
 called by it. 1837, lie. Long Island R., 1! U'eml. 37; 1878, Covert v. Rogers 
 38 Mich. 363; 1888, Cassell v. Lexington, etc., Co., 10 Ky. L. Rep. 486, <t s! 
 \V. Rep. 502; 1893, Brown v. Republican etc., Mines, 55 "Fed. Rep. 7. 
 
 Sec. 231. Quorum. 
 
 MORRILL v. LITTLE FALLS MANUFACTURING CO. 1 
 
 1893. IN THE SUPREME COURT OF MINNESOTA. 53 Minn. Rep. 
 371-380, 55 N. W. Rep. 547. 
 
 [Action to determine title to land, claimed to belong to the plaintiff, 
 but in which the "company claimed some interest. The corporation 
 had originally owned the lands, but in 1864 it had become hopelessly 
 insolvent, abandoned its business, and its organization became prac- 
 tically defunct. No effort to revive it was made by any of the share- 
 holders until 1881, a period of seventeen years. In the meantime 
 plaintiff had attempted to acquire title to its lands through tax titles. 
 In 1881, at plaintiff's suggestion, one Thayer, a shareholder, for him- 
 self and as proxy for certain other shareholders, went to the place, 
 and at the time fixed by the by-laws for holding the annual meeting of 
 the company, and being the only person present, cast the votes of 
 himself and those for whom he held proxies for a board of directors, 
 to each of whom he transferred one share of stock. The same thing 
 was done by another shareholder at the proper time and place in 1882. 
 During these years Thayer was elected and acted as president of the 
 company, and in 1882 he and the secretary under proper directions 
 conveyed the land in question to persons from whom the plaintiff 
 traces title. The decision below was for the plaintiff, and the de- 
 fendant company appealed.] 
 
 MITCHELL, J. * * * As affecting the validity of the deeds 
 executed in 1882, in behalf of the corporation, by Thayer as presi- 
 dent, the appellants assail the rinding of the court as to the election 
 of directors in Augu-st, 1881. The grounds of objection are: First, 
 that no notice was given of the meeting, and, second, that it required 
 a majority of the shares of stock to constitute a quorum to hold a 
 meeting, or, in any event, that one person could not hold a meeting, 
 that at least two persons are necessary to constitute a corporate 
 meeting. 
 1 Statement abridged. Only part of opinion given.
 
 MORRILL V. LITTLE FALLS MANUFACTURING CO. 231 
 
 As to the first point all that is necessary to say is that the by-laws 
 fixed the time and place of holding the meeting, and neither the char- 
 ter nor the by-laws required any notice to be given. Under such cir- 
 cumstances, the rule is that the by-laws themselves are sufficient 
 notice to all the stockholders, and no further notice is necessary, i 
 Mor. Priv. Corp., 479. 
 
 The second objection is equally untenable. Where the charter 
 and by-laws of a corporation are silent on the subject, the common- 
 law rule is that such of the shareholders as actually assemble at a 
 properly convened meeting, although a minority of the whole num- 
 ber and representing only a minority of the stock, constitute a quorum 
 for the transaction of business, and may express the corporate will, 
 and the body will be bound by their acts. Cook Stock & S., 607, 
 623; 2 Kent Comm., 293; Mor. Priv. Corp., 476; Craig v. First 
 Presbyterian Church, 88 Pa. St. 42; Rex v. Varlo, Cowp. 248; 
 Columbia Bottom Levee Co. v. Meier, 39 Mo. 53; Ex parte Will- 
 cocks, 7 Cow. 402; Field v. Field, 9 Wend. 395. 
 
 The contention of the appellants that this rule applies only to such 
 organizations as towns, churches and the like, and not to stock corpo- 
 rations, finds no support either in reason or authority. The correct 
 distinction is between a corporate act to be done by a select body of 
 a definite number, as, for example, a board of directors or trustees, 
 and one to be performed by the constituent members of the corpora- 
 tion. In the latter case a majority of those who appear may act. 
 This distinction is clearly made in several of the cases above cited, 
 and also in the leading case of Rex v. BelMnger, 4 Term R. 810. 
 As was said by Lord Mansfield in Rex v. Varlo, supra: "It is in 
 the nature of all corporations to do corporate acts; and, when the 
 power of doing them is not specially delegated to a particular num- 
 ber, the general mode is for the members to meet on the charter days, 
 and the major part who are present to do the act. But when there is 
 a select body it is a different thing, for then it is a special appoint- 
 ment." And, this being so, it is immaterial whether the number 
 present is only one or more than one. It was held in Sharpev. Dawes, 
 46 Law J. Q. B. 104, followed reluctantly in another case, that one 
 person can not constitute a quorum ; that at least two persons are nec- 
 essary to hold a corporate meeting ; but this decision is based upon a 
 narrow lexicographical definition of the word "meeting," as the com- 
 ing together of two or more persons a reason that does not commend 
 itself to our judgment. 
 
 Therefore, in our opinion, the court was justified in holding that 
 the election of directors in 1881 was regular; and it follows that the 
 deeds executed in 1882 by Thayer, the president elected by them, 
 were the deeds of the corporation. * * * 
 
 Reversed upon another point. 
 
 Note. Quorum. 
 
 1. If all of an indefinite number of shareholders are duly notified to meet, 
 those who assemble constitute a quorum, unless there are statutory, charter, or 
 by-law provisions otherwise: 1775, Rex v. Varlo, Cowp. 248; 1827, Exparte
 
 232 MODE OF ACTION. 841 
 
 Willcocks, 7 Cow. (N. Y.) 402, 17 Am. D. 525; 1832, Field v. Field, 9 Wend. 
 394; 1856, People v. Walker, 2 Abb. Pr. 425, 23 Barb. (N. Y.) 304; 1866, Co- 
 lumbia Bottom L. Co. v. Meier, 39 Mo. 53; 1866, Madison Ave. B. Ch. v. 
 Baptist Ch.,etc., 5 Robt. (N. Y.) 649; 1867, Brown v. Pacific Mail S.S. Co., 5 
 Blatch. 525; 1878, Craig y. First Pres. Ch., 88 Pa. St. 42. 32 Am. Rep. 417; 
 1885, State v. Chute, 34 Minn. 135. See note in 7 Eng. Rul. Cases, pp. 350-3. 
 
 2. A majority of a body composed of a definite number of members must 
 be present to constitute a quorum: 1693, Hascard v. Somany, Freem. K. B. 
 504; 7 Eng. Rul. Cas. 333; 1792, Rex v. Bellringer, 4 T. R. 810; 1823, Rex v. 
 Devonshire, 1 Barn. & C. 609 (8 Eng. C. L.) 
 
 3. Statute, charter or by-laws frequently require a certain number of mem- 
 bers, or a certain number of shares, to be represented to constitute a quorum ; 
 if so, this number must continue to be present during the meeting: 1827, Ex 
 parte Rogers, 7 Cow. (N. Y.) 526, 530, note; 1898, Rutherford B. S. & C. Elec. 
 Co. v. Franklin, 57 N. J. Eq. 42, 41 Atl. Rep. 488, s. c. 43 Atl. Rep. 1098. 
 
 4. The shares outstanding, and not the authorized but unissued or unsub- 
 gcribed shares, are the ones counted where the quorum is to consist of a "ma- 
 jority of shares": 1846, Green v. Seymour, 3 Sandf. Ch. 285; 1897, In re 
 Election of Directors, etc., 19 Miscl. (N. Y.) 409; 1898, Castner v. Twitchell- 
 Champlin Co., 91 Maine 524, 40 Atl. Rep. 558. But see, 1887, Ellsworth Woolen 
 Mfg. Co. v. Faunce, 79 Maine 440. 
 
 5. In the absence of evidence to the contrary, a quorum will be presumed 
 to have been present at a corporate meeting: 1817, Commw. v. Woelper, 3 
 Serg. & R. 29, 8 Am. Dec. 628; 1847, Sargent v. Webster, 13 Mete. (Mass.) 
 497; 1864, Citizens' M. F. Ins. Co. v. Sortwell, 8 Allen (Mass.) 217. 
 
 6. The English courts hold contrary to the case above upon the right of one 
 man with proxies to hold a meeting: 1876, Sharpe v. Dawes, 47 L. J. Q. 
 B. 104. Compare also, 1874, Hopkins v. Roseclare L. Co., 72 111. 373; 1886, 
 England v. Dearborn, 141 Mass. 590. 
 
 Sec. 232. Place of meeting. 
 
 MILLER v. EWER. 1 
 
 1847. IN THE SUPREME JUDICIAL COURT OF MAINE. 27 Maine 
 Rep. 509-525, 46 Am. Dec. 619. 
 
 [Writ of entry to recover land. Demandants derive title from the 
 Bluehill Granite Company, through a mortgage purporting to be 
 executed by the president and secretary of that company. To prove 
 authority of these officers, the charter granted by the state of Maine, 
 and the corporate records were introduced in evidence. The records 
 showed "that a meeting of the corporators was called for the organ- 
 ization of the corporation under the charter in the city of New York, 
 and that the charter was there accepted and directors, president and 
 secretary chosen. The directors by meeting held in New "York City 
 organized and authorized the president and secretary to execute the 
 mortgage. There was no proof of any meeting for the organi/.ation 
 of the company or any election of officers being held in Maine or 
 that it had ever transacted business there, except by a person acting 
 as its agent there.] 
 
 SHEPI.EY, J. * * * T*he demandants must recover upon the 
 strength of their own title, not because the tenant does not exhibit a 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 842 MILLER V. EWER. 232 
 
 legal title ; and their right to recover will depend upon a decision of 
 the question whether the corporation has authorized any board of 
 directors or other persons to make that conveyance of its estate. 
 
 There is a variety of corporations. It will only be necessary, on 
 this occasion, to speak of one class of them, corporations aggregate, 
 composed of natural persons. It is often stated in books that such a 
 corporation is created by its charter. This is not precisely correct. 
 The charter only confers the power of life, or the right to come into 
 existence, and provides the instruments by which it may become an ar- 
 tificial being, or acting entity. Such a corporation has been well de- 
 fined to be an artificial being, invisible, intangible and existing only in 
 contemplation of law. The instruments provided to bring the artifi- 
 cial being into life and active operation are the persons named in 
 charter, and those who, by virtue of its provisions, mav become asso- 
 ciated with them. Those persons or corporators, as natural per- 
 sons, have no such power. The charter confers upon them a new 
 faculty for this purpose ; a faculty which they can have only by virtue of 
 the law which confers it. That law is inoperative beyond the bounds 
 of the legislative power by which it is enacted. As the corporate 
 faculty can not accompany the natural persons beyond the bounds of 
 the sovereignty, which confers it, they can not possess or exercise it 
 there. Can have no more power there to make the artificial being act, 
 than other persons not named or associated as corporators. Any at- 
 tempt to exercise such a faculty there is merely an usurpation of au- 
 thority by persons destitute of it, and acting without any legal capac- 
 ity to act in that manner. It follows that all votes and proceedings 
 of persons professing to act in the capacity of corporators, when as- 
 sembled without the bounds of the sovereignty granting the charter, 
 . are -wholly void. 
 
 This is a familiar principle when applied in analogous cases to per- 
 sons upon whom the law has conferred some power or faculty which, 
 as natural persons, they do not possess. 
 
 The power conferred by law upon executors and administrators 
 can not accompany their persons beyond the bounds of the sover- 
 eignty which has conferred it. Story has collected numerous cases 
 in note under section 512, in his treatise upon the Conflict of Laws, 
 proving the doctrine to be established both in England and in this 
 country. 
 
 The same doctrine prevails respecting the powers of guardians. 
 Williams v. Storrs, 6 Johns. Chan. 357. 
 
 The same doctrine generally prevails in this-country, while it does 
 not in England, respecting the powers of assignees under bankrupt 
 and insolvent laws. The doctrine is stated and discussed and the 
 cases are collected by Story in his treatise on the Conflict of Laws, 
 ch. 9, 405 to 417. 
 
 If the artificial being called the Bluehill Granite Company may be 
 considered as having existence and active life in this state, by proof 
 of its acts within her limits, it will be still true that it can not have 
 existence without her limits, and of course can not make choice of
 
 232 MODE OF ACTION. 843 
 
 any officers or agents there. It may maintain a suit without those 
 limits, but that does not imply its exi.ste.nce or presence there. It may 
 also contract without those limits. Being within them it may, acting 
 per se, by vote transmitted elsewhere, propose a contract or accept 
 one previously offered. And it may, by an agent or agents duly con- 
 stituted, act and contract beyond those limits. But it can neither ex- 
 ist nor act per se without them, except by the assistance of its officers 
 or agents duly elected or appointed within them. 
 
 The constitution and powers of such corporations were perhaps 
 more thoroughly discussed and fully considered than ever before, by 
 any judicial tribunal, in the case of the Bank of Augusta v. Earle, 13 
 Peters 519. C. J. Taney, delivering the opinion of the court, says: 
 "It is very true that a corporation can have no legal existence out of 
 the boundaries of the sovereignty by which it is created. It exists 
 only in contemplation of law; and where that law ceases to operate 
 and is no longer obligatory, the corporation can have no existence. It 
 must dwell in the place of its creation and can not migrate to another 
 sovereignty." 
 
 The cases of McCall v. The Byram Manufacturing .Co., 6 Conn. 
 Rep. 428, and of Copp v. Lamb, 3 Fairf. 314, are relied upon as de- 
 ciding that corporations whose charters were granted by one state 
 could hold meetings, pass votes and exercise powers in another state. 
 
 The question presented in the former case was whether the secre- 
 tary of a corporation was legally appointed by the directors of a meet- 
 ing held by them in the city of New York. The charter had been 
 granted by the state of Connecticut. The decision was in the affirm- 
 ative. 
 
 The directors of a corporation are not a corporate body, are, when 
 acting as a board, but a board of officers or agents, and they may ex- 
 ercise their powers as agents beyond the bounds where the corpora- 
 tion exists. It did, indeed, appear in that case that all the meetings 
 of the stockholders and of the directors were holden in the city of 
 New York, but the capacity of the stockholders to act there does not 
 appear to have been examined or discussed. 
 
 In the case of Copp v. Lamb the court did not enter upon an exam- 
 ination of the question whether the proprietors of common and undi- 
 vided lands had, by virtue of an act passed by the commonwealth of 
 . Massachusetts, power to organize and act as a corporation in another 
 state. * * * 
 
 That clause in the charter of the Bluehill Granite Company which 
 authorizes two persons named to call the first meeting of the com- 
 pany at such time and place as they may think proper can not receive 
 such a construction as would authorize them to call the meeting at a 
 place without the limits of this state. Legislative bodies do not 
 usually in their acts of legislation use language to limit their opera- 
 tion, but use general language, and the limitation is implied and in- 
 ferred from the extent of the legislative power. The language used 
 in that charter does not require any other construction or authorize the
 
 844 THE MISSOURI LEAD M. & S. CO. V. REINHARD. 233 
 
 conclusion that it was the intention to authorize that meeting to be 
 held without the limits of the sovereignty. * * * 
 
 Whether the statute provisions of this state and the intention of the 
 legislative power, or the general rules of law respecting corporations, 
 be examined, the conclusion must be the same, that this corporation 
 could hold no meeting for the election of its officers or for the regula- 
 tion of its affairs without the limits of this state. That all such meet- 
 ings and proceedings were without right or authority and wholly 
 void. 
 
 If there were no directors de jure, were there any de facto having 
 authority to convey the estate of the corporation ? * * * 
 
 When a corporation has held certain persons out to the public as 
 its directors or officers, those dealing with them as such and ignorant 
 of their want of legal power will be entitled to consider their acts as 
 binding upon the corporation. And when there has been an informal 
 or irregular exercise of an existing power of election, the officers so 
 elected, until removed, are regarded as officers de facto, and their acts 
 are obligatory upon the corporation. 
 
 But when the corporators have no power at all to proceed to an 
 election, and when the officers must be considered as assuming to be 
 such without any election, their acts can not be binding upon the 
 corporation unless the corporation has held them out in the manner 
 before stated to be its officers. * * * 
 
 (The facts showed that demandants traced their title directly through 
 deeds from parties having knowledge of and participating in the 
 organization proceedings.) 
 
 Demandants nonsuit. 
 
 See note at end of Graham v. Railroad Co., infra, p. 847. 
 
 Sec. 233. Same. 
 
 THE MISSOURI LEAD M. & S. CO. v. REINHARD. 1 
 
 1893. IN THE SUPREME COURT OF MISSOURI. 114 Mo. Rep. 218- 
 232, 35 Am. St. Rep. 746. 
 
 [Suit to quiet title to lands. The plaintiff, the lead company, was 
 organized in England. In 1880 it purchased certain mining lands in 
 Missouri, formerly owned by a company organized in Missouri; this 
 company, having become financially embarrassed, its members, consist- 
 ing of only three persons, one residing in St. Louis and the other two in 
 London, England, held a meeting in London, England, and there or- 
 ganized the plaintiff company. While there they held a meeting of 
 the Missouri company, selected themselves as directors, elected a 
 president and empowered him to convey the mining lands to the 
 
 1 Statement abridged, arguments and much of the opinion omitted. See 
 note at end of next case.
 
 233 MODE OF ACTION. 84$ 
 
 plaintiff. This was done. One M. had, in 1877, begun suit against 
 the Missouri company and obtained judgment against it in 1885, and 
 under an execution issued upon this judgment, the mining lands in 
 question was sold to Reinhard, who claims title to them. The lower 
 court directed the plaintiff to pay the judgment and the title to the 
 land to be quieted.] 
 
 BLACK, C. J. * * * The defendants insist that the deed from 
 the Missouri company to the English company is void because exe- 
 cuted and delivered in England. 
 
 As our statute provides that the articles of association shall state the 
 city or town and the county in which the corporation is to be located, it 
 is but fair and reasonable that acts of the body corporate itself, such as 
 annual elections of directors, votes to increase or diminish the stock, and 
 other meetings of the stockholders, should take place at the home office. 
 But where, as here, there is no prohibitory statute, and all of the 
 shareholders give their consent, the acts of the stockholders at a meet- 
 ing held in a foreign jurisdiction are valid.' i Morawetz on Private 
 Corporations (2 ed.), 484; Taylor on Corporations (2 ed.). 382. 
 Directors are the agents of the corporation, and it is now quite well 
 settled that they may hold meetings and transact business in a foreign 
 state if they desire to do so unless the contrary is expressly provided 
 by the charter, by-laws or the general laws of the state under which 
 the corporation was organized. Morawetz on Private Corporations, 
 (2 ed.), 533; Taylor on Corporations (2 ed.), 381 ; Railroad v. 
 McPherson, 35 Mo. 13; Handley v. Stutz, 139 U. S. 422. These 
 three persons who transacted the business in London held all of the 
 stock and were the duly-appointed directors. The law of this state 
 did not prohibit them from holding meetings there, and it follows 
 that the action of these directors in making the contract for the sale 
 of the property, and in directing the president to execute the deed, and 
 his act in delivering it, were and are just as valid as if they had been 
 performed here at the office of the corporation. 
 
 The further contention that the English company had and has no 
 power to take and hold real property in this state is equally untenable. 
 Though it was said in Bank v. Earle, 13 Pet. 584, that a corporation 
 "must dwell in the place of its creation, and can not migrate to an- 
 other sovereignty," still it was there held that it did not follow that it 
 could not do business in other jurisdictions. Though corporations 
 are mere artificial beings and creatures of the law where organized, 
 still it is settled beyond a shadow of doubt that they may hold prop- 
 erty and transact business in a foreign state or country when not pro- 
 hibited from doing so by the laws of such country. But wherever a 
 corporation "goes for business it carries its charter, as that is the law 
 of its existence, and the charter is the same abroad as at home." Rail- 
 road v. Gebhard, 109 U. S. 527. * * * 
 
 Affirmed. 
 
 Note. Compare, 1900, Union Natl. Bank v. State Natl. Bank, 1 5,3 Mo. !)5 
 78 Am. St. Rep. 560.
 
 846 GRAHAM V. BOSTON, HARTFORD AND ERIE R. CO. 234 
 
 Sec. 234. Same. 
 
 GEAHAM v. BOSTON, HARTFORD AND ERIE R. CO. 1 
 
 1886. IN THE SUPREME COURT OF THE UNITED STATES. 118 U. 
 
 S.-Rep. 161-180. 
 
 [Bill in equity in circuit court of the United States, by a stockholder 
 on behalf of himself and the other shareholders and the creditors, to 
 set aside a mortgage given by the railroad company upon all its prop- 
 erty.] 
 
 BLATCHFORD, J. * * * It appears by the bill that the mort- 
 gagor corporation was chartered by its name by the legislature of Con- 
 necticut at its May session, 1863 ; that thereafter acts were passed by 
 the legislatures of Massachusetts and Rhode Island making it a corpo- 
 ration of those states; that in August, 1863, the Southern Midland 
 Railroad Company having previously acquired all the franchises and 
 property of the Boston and New York Central Railroad Company, a 
 corporation chartered under the laws of Massachusetts, Connecticut 
 and New York, conveyed all its franchises and property to the Bos- 
 ton, Hartford and Erie Company; and that in November, 1863, the 
 latter company, under authority contained in acts of the legislatures 
 of all four of the states, acquired the franchises and property of the 
 Hartford, Providence and Fishkill Railroad Company, a corporation 
 
 created under the laws of New York, Rhode Island and Connecticut. 
 
 * * * 
 
 The first ground alleged in the bill for declaring the mortgage in- 
 valid is, that it was authorized and made at a meeting of the share- 
 holders of the company held in the city qf^Jew York ; that it was not a 
 corporation of New York, but was a corporation of Connecticut, Massa- 
 chusetts and Rhode Island ; and that, therefore, the meeting was ille- 
 gal and the mortgage void. The circuit court held that the corpora- 
 tion was a New York corporation ; that the meeting was lawfully 
 
 held ; and that its proceedings were valid and binding on the company. 
 
 * * * 
 
 That a meeting in one of several states of the stockholders of a 
 corporation chartered by all those states is valid in respect to the prop- 
 erty of the corporation in all of them without the necessity of a repeti- 
 tion of the meeting in any other of those states is, we think, a sound 
 proposition, whether it be or be not true that proceedings of persons 
 professing to act as corporators, when assembled without the bounds 
 of the sovereignty granting the charter, are void. Miller v. Ewer, 
 27 Maine 509. There is no principle which requires that the cor- 
 porators of this consolidated corporation should meet in more than one 
 of the states in which it has a domicile in order to the validity of a 
 corporate act. * * * 
 
 The Boston, Hartford and Erie Company, though made up of dis- 
 
 1 Statement of facts greatly abridged. Only part of the opinion relating to 
 the single point is given, and this is rearranged and transposed.
 
 234 MODE OF ACTION. 847 
 
 tinct corporations, chartered by the legislatures of different states, had 
 a capital stock which was a unit, and only one set of shareholders, who 
 had an interest by virtue of their ownership of shares of such stock in 
 all of its property everywhere. In its organization and action and the 
 practical management of its property it was one corporation, having 
 one board of directors, though in its relations to any state it was a 
 separate corporation, governed by the laws of that state as to its prop- 
 erty therein. It, therefore, had a domicile in each state, and the 
 corporators or shareholders could, in the absence of any statutory pro- 
 vision to the contrary, hold meetings and transact corporate business 
 in any one state, so as to bind the corporation in respect to its prop- 
 erty everywhere. Bridge Co. v. Mayer, 31 Ohio St. 317; Pierce on 
 Railroads, 20. * * * 
 Affirmed. 
 
 Note. 1. A great number of decisions hold that business done at an organi- 
 zation meeting, or other meeting of shareholders held out of the state creat- 
 ing the corporation, ia void, and of no effect: 1854, Freeman v. Machias 
 Water, etc., Co., 38 Maine 343; 1858, Hill v. Beach, 12 N. J. Eq. 31; 1862, 
 Hilles v. Parrish, 14 N. J. Eq. 380; 1863, Aspinwall v. Ohio, etc., R. Co., 20 
 Ind. 492, 83 Am. D. 329; 1874, Bellows v. Todd, 39 Iowa 209,217; 1874, 
 Ormsby v. Vermont Copper M. Co., 56 N. Y. 623; 1876, Mitchell v. Vermont 
 C. M. Co., 67 N. Y. 280; 1883, Franco Texan Land Co. v. Laigle, 39 Texas 
 339 (so held although the charter expressly authorized the business to be 
 done in France) ; 1885, Smith v. Silver Valley, 64 Md. 85, 54 Am. Rep. 760; 
 
 1890, Mack v. De Bardeleben, 90 Ala. 396; 1890, Welch v. Old Dominion, etc., 
 R., 10 N. Y. Supp. 174; 1891, Hodgson v. Duluth, etc., R., 46 Minn. 454; 1894, 
 Jones v. Pearl M. Co., 20 Colo. 417; 1895, Taylor v. Branham, 35 Fla. 297; 
 1895, Craig Silver Co. v. Smith, 163 Mass. 262, on 265; 1896, Duke v. Taylor, 
 37 Fla. 64, 53 Am. St. Rep. 232, 31 L. R. A. 484 (this intimates that if the 
 statute authorized, such meeting would be valid) ; 1897, Bastian v. Modern 
 Woodmen of Am., 166 111. 595 (this seems to intimate that statutory authority 
 might make such meeting valid). 1899, Harding v. Glucose Co., 182 111. 557, 
 74 Am. St. Rep. 189. 
 
 2. Several cases, however, hold that such extraterritorial acts are not 
 void, but, at least, are sufficient to estop the corporation or participating share- 
 holders, and third parties can not complain, non-participating shareholders 
 being the only parties who may object. 1864, Ohio & M. R. Co. v. McPher- 
 son, 35 Mo. 13, on 26; 1867, Camp v. Byrne, 41 Mo. 525; 1875, Heath v. Sil- 
 verthorn L. M. Co., 39 Wis. 146; 1880, Humphreys v. Mooney, 5 Colo. 282; 
 
 1891, Handley v. Stutz, 139 U. S. 417 ; 1892, Wright v. Lee, 2 S. Dak. 596. 
 
 3. There seems to be no doubt but that consolidated companies formed by 
 the union of several corporations, organized in different states, can hold a 
 valid meeting in either state, as held in Graham v. R. Co., supra. 1877, 
 Covington, etc., Bridge Co. v. Mayer, 31 Ohio St. 317; 1888, Ohio, etc., R. v. 
 People, 123 111. 467. 
 
 4. As indicated in Miller y. Ewer, the directors, being only corporate 
 agents, may hold valid meetings outside the state creating the corpora- 
 tion. 1827, McCall v. Mfg. Co., 6 Conn. 428; 1864, Arms v. Conant, 36 Vt. 
 744; 1864, Ohio & M. R. Co. v. McPherson, 35 Mo. 13; 1872, Wood, etc., M. 
 Co. v. King, 45 Ga. 34; 1874, Bellows v. Todd, 39 Iowa 209; 1880, Humphreys 
 v. Mooney, 5 Colo. 282; 1881, Parsons v. Lent, 34 N. J. Eq. 67; 1888, Salt- 
 mareh v. Spaulding, 147 Mass. 224; 1892, Wright v. Lee, 2 S. Dak. 596; 1893, 
 Brockway v. Gadsden M. L. Co., 102 Ala. 620. But, see, 1874, Ormsby v. 
 Vermont C. M. Co., 56 N. Y. 623, contra. 
 
 Statutes sometimes require the directors to meet within the state creating 
 the corporation. 1897, State National Bank v. Union Nat'l Bank, 168 111.519.
 
 848 BANK OF LITTLE ROCK V. M'CARTHY. 235 
 
 Sec. 235. Directors' meeting, necessity, notice and quorum. 
 BANK OF LITTLE EOCK v. M'CARTHY. 1 
 
 1892. IN THE SUPREME COURT OF ARKANSAS. 55 Ark. Rep. 473- 
 482, 29 Am. St. R. 60. 37 Am. & E. C. C. 671. 
 
 [Suit instituted by a dissenting stockholder to have a receiver ap- 
 pointed for a lumber company. In August, 1869, this company owed 
 the bank and McCarthy about $25,000 each, and others about 
 $6.500. In order to meet pressing claims the president sought a 
 further loan from McCarthy, who offered to advance $10,000, pro- 
 vided the company would give a mortgage securing that sum and his 
 existing claim of $25,000. This necessitated a meeting of directors, 
 a call for which was prepared and served upon all but one, Field. 
 Inquiry was made at Field's office, but without ascertaining where he 
 was. The president then went with a notice of the meeting to Field's 
 residence, and rinding no one there, inserted it between the door and 
 casing and left it. Field's family was away, the residence was un- 
 occupied at the time, except by a man who slept there, and the notice 
 was not received-by Field. The meeting was held, and all of the direc- 
 tors (there being five), except Field, were present. At this meeting 
 it was determined by a vote of three to one that the mortgage should 
 be made to McCarthy. The shareholders were the same as the direc- 
 tors, and the dissenting director as a shareholder instituted the suit the 
 same day the mortgage was executed. A receiver was appointed and 
 it then became apparent the company was insolvent. The bank put 
 in a cross-bill asking that the mortgage to McCarthy be canceled, 
 and McCarthy asked a foreclosure and secured a decree to that effect. 
 The bank appealed.] 
 
 HEMINGWAY, J. * * * The statute p'rovides that the stock, 
 property, affairs and business of business corporations shall be man- 
 aged by not less than three directors (Mansf. Dig., 964); and, 
 further, that a majority of the directors, convened according to the 
 by-laws, shall constitute a quorum for the transaction of business 
 (section 969). 
 
 In the case of Simon v. Sevier Association, 54 Ark. 58, the validity 
 of a general assignment authorized by a majority of the directors at a 
 meeting of which the absent directors had no notice was considered, 
 and -we held that the statute authorized a majority to act only at a 
 meeting legally convened, and that it was essential to a legal meeting 
 that it be called in accordance with the by-laws or rules of the corpo- 
 ration or upon due and legal notice given to each of the members. 
 There was no contention that notice could not have been served on 
 each member, and no expression of the law where that was a fact. 
 
 Subsequent investigation has not altered our views as then expressed, 
 but we are convinced that they are in a line with the authority of text- 
 writers and adjudged cases. If the rule were otherwise, the rights 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 235 MODE OF ACTION. 849 
 
 and interests of minority holders would be liable to great abuse. 
 Even majorities might suffer, for, by absence of some of their num- 
 ber, the minority might become the majority, hold a meeting without 
 notice to the absentees and change the entire course or policy of the 
 business, or do acts destructive to its prosperity or future existence. 
 Such abuse of corporate power is not unknown to the history of cor- 
 porations, and its evidence is found in the records of the courts. 
 Rules intended to check or prevent it should be rigidly observed, 
 except where reason requires that they be relaxed. The wisdom of 
 the rule and the dangers incident to any other are very clearly stated 
 by Judge Brewer in the case of the Paola & Fall River R. Co. v. 
 Comrs. of Anderson Co., 16 Kan. 309, where he shows that if any 
 other rule prevailed it would be possible, with a board composed of 
 twelve members, for four directors to convene a meeting of seven by 
 giving notice to three and witholcling it from five others, and to bind 
 the corporation to acts condemned by eight. That case called for no 
 expression as to the law in cases of emergency where notice to any 
 director was impracticable, and contains no discussion of such cases, 
 but there is an intimation that the rule might admit exceptions in such 
 cases. 
 
 That such cases may arise as will justify and require exceptions to 
 be made, is a conclusion to which reflection inevitably leads. In fact, 
 it is conceded by the learned counsel for the appellant "that a director 
 can not put a stop to corporate business by simply leaving its jurisdic- 
 tion" ; and that, "if after a reasonable search the parties are unable 
 to find him, the remaining directors may attend to the necessary 
 affairs." This indicates that the exception arises upon a concurrence 
 of three conditions, first, the impracticability of notice; second, the 
 existence of an emergency for action ; and third, a reasonable neces- 
 sity for the action taken. 
 
 Without committing the court to a full approval of this form of 
 stating the exception, we may say that it seems to be substantially 
 correct. Where notice is practicable, it must be given; it can be dis- 
 pensed with -when impracticable, only to meet an emergency; and the 
 act done must appear reasonably necessary to the "welfare of the cor- 
 poration. If the act is merely proper, but not necessary, or if it ap- 
 pear that it may become necessary, but the necessity is not present, the 
 rule should not yield, for in such cases notice may become practica- 
 ble, and the presence of the absent director be secured before the ne- 
 cessity arises or the emergency is present. Such we consider the 
 rute Reducible from the case of Chase v. Tuttle, 55 Conn. 455, relied 
 upon by the appellee. For it had been held in earlier decisions of 
 that court that a meeting attended by a majority of the directors, of 
 which the minority had no notice, was not lawful, and it does not ap- 
 pear that there was any intention to overrule those decisions. Stow 
 v. Wyse, 7 Conn. 214; s. c., 18 Am. Dec. 99.' The learned judge 
 who delivered the opinion in that case says that "the exigency de- 
 manded immediate action to save the property and to save expense," 
 
 1 Supra, p. 835. 
 
 54 WIL. CASES.
 
 850 BANK OF LITTLE ROCK V. M'CARTHY. 235 
 
 and the action of the meeting was upheld upon the ground that power 
 must be accorded the company to protect itself. * * * 
 
 Was the notice left at his usual place of residence, at a time when 
 he and his family were absent to remain until after the time fixed for 
 the meeting, notice to him ? Counsel insist that it constituted notice, 
 and to sustain their position cite us to section 5206, Mansfield Digest; 
 but that section has reference to notices mentioned in the code, and as 
 notices to directors of business corporations are not included in such 
 mention, we think the section inapplicable. The laiv provides for no 
 constructive notice in such cases, and in the absence of such provis- 
 ion^wftce must be personal. Such seems to be the rule established by 
 the authorities. i Beach Corp., 281 ; Stow v. Wyse, 7 Conn. 
 214; s. c., 18 Am. Dec. 99, and note, 102-3; Covert v. Rogers, 
 38 Mich. 363; i Waterman on Corp., 63, p. 205; i Morawetz 
 Corp., 531 ; Stevens v. Eden Meeting-house Society, 12 Vt. 688; 
 Harding v. Vandewater, 40 Cal. 77. 
 
 Reversed. 
 
 Note. 1. Accord: 1828, Stow v. Wyse, 7 Conn. 214, 18 Am. Dec. 99, supra,p. 
 835; 1839, Stevens v. Eden Meeting-house, etc., 12 Vt. 688, supra, p. 836; 1841, 
 Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203 ; 1842, Elliot 
 v. Abbott, 12 N. H. 549, 37 Am. Dec. 227 ; 1859, Ross v. Crockett, 14 La. Ann. 
 811 ; 1876, Paola, etc., F. R. Co. v. Commissioners Anderson Co., 16 Kan. 302; 
 1877, Herrington v. District Tp. of Liston, 47 Iowa 11 ; 1878, Covert v. Rogers, 
 38 Mich. 363; 1878, Choteau Ins. Co. v. Holmes, 68 Mo. 601,30 Am. Rep. 807; 
 1879, Baldwin v. Canfield, 26 Minn. 43; 1880, Pike Co. v. Rowland, 94 Pa. St. 
 238; 1882, Buttrick v. Railroad Co., 62 N. H. 413, 418; 1887, Chase v. Tattle, 
 55 Conn. 455, 3 Am. St. Rep. 64, and note; 1888, Thompson v. Williams, 76 
 Cal. 153, 9 Am. St. Rep. 187, and note; 1892, Smith v. Dorn, 96 Cal. 73, 40 
 Am. & E. C. C. 196; 1895, Smith v. Cornelius, 41 W. Va. 59, on 68; 1895, First 
 Nat'l Bank v. Asheville, etc., Co., 116 N. C. 827 ; 1895, Hamlin v. Union Brass 
 Co., 68 N. H. 292, 44 Atl. Rep. 385; 1897, Limer v. Traders' Co., 44 W. Va. 
 175, 28 S. E. Rep. 730; 1898, Singer v. Salt Lake City Mfg. Co., 17 Utah 143, 
 53 Pac. Rep. 1024; 1899, Monroe Mercantile Co. v. Arnold, 108 Ga. 449, 34 
 S. E. Rep. 176; 1899, Broughton v. Jones, 120 Mich. 462, 79 N. W. Rep. 691. 
 See next case, contra. 
 
 (2) In the absence of evidence to the contrary, notice is presumed to have 
 been properly given and a quorum present: 1847, Sargent v. Webster, 13 
 Mete. (Mass.) 497, 46 Am. Dec. 743; 1883, Leavitt v. Oxford & G. S. M. Co., 
 3 Utah 265, 4 Am. & E. C. C. 234; 1887, Chase v. Tuttle, 55 Conn. 455, 3 Am. 
 St. Rep. 64, and note; 1890, Rollins v. Shaver Wagon Co., 80 Iowa 380, 20 
 Am. St. Rep. 427; 1894, Benbow v. Cook, 115 N. C. 324, 44 Am. St. Rep. 454; 
 1895, Pauly v. Pauly, 107 Cal. 8, 48 Am, St. Rep. 98; 1899, Balfour-Guthrie 
 Co. v. Wood worth, 124 Cal. 169, 56 Pac. Rep. 891. 
 
 (3) In the absence of statutory, charter or by-law provisions no qualifica- 
 tions, except such as the corporation may impose, are necessary in order to 
 be a director. An officer may be, 1847, Sargent v. Webster, 13 Met. 497, 46 Am. 
 Dec. 743; a non-resident may be, 1887, State v. Smith, 15 Ore. 98; an alien, 
 resident or non-resident may be, 1890, Commonwealth v. Hemingway, 131 Pa. 
 St. 614; and it has been held where the statute requires a director to be a 
 shareholder, he mav receive shares solely for the purpose of qualifying him 
 1891, In re Argus, "etc., Co., 1 N. Dak. 434, 26 Am. St. Rep. 639. 
 
 (4) Delegation of powers by directors:. 
 
 (a) In general discretionary powers can not be delegated by those to whom 
 they have once been delegated, and the powers of directors derived from share-
 
 236 MODE OF ACTION. 851 
 
 holders are delegated powers: 1832. Percy v. Millaudon, 3 La. 568; 1837, 
 Bank Commrs. v. Bank of Buffalo, 6 Paige Ch. (N. Y.) 497; 1850, Gillis v. 
 Bailey, 21 N. H. 149 ; 1855, York, etc., R. Co. v. Ritchie 40 Me. 425 ; 18H6, In re 
 Leeds Banking Co., L. R. 1 Ch. App. 561; 1876, Farmers' Mut. Fire Ins. Co. 
 v. Chase, 56 N. H. 341 ; 1877, Tracy v. Guthrie, etc., Soc., 47 Iowa 27; 1878, 
 Silver Hook Road v. Greene, 12 R. I. 164; 1892, Weidenfeld v. Sugar, etc., 
 R. Co., 48 Fed. Rep. 615; 1895, Temple v. Dodge, 89 Tex. 68. 
 
 (6) But if the board of directors is a statutory body, it is frequently held 
 that its powers are original, and not delegated as the power of an agent is, and 
 so may be delegated by it to others: 1814, North Hampton Bank v. Pepoon, 
 11 Mass. 288; 1883, Leavitt v. Oxford, etc., G. S. M. Co., 3 Utah 265; 1891, 
 Sheridan, etc., Co. v. Chatham, etc., Bank, 127 N. Y. 517; 1893, Black River, 
 etc., Co. v. Holway, 85 Wis. 344; 1896, Burden v. Burden, 8 App. Div. (N.Y.) 
 160; 1896, Union, etc., R. Co. v. Chicago, R. I. & P. R. Co., 163 U. S. 
 564. 
 
 (c) Purely ministerial, non-discretionary power may be delegated : 1823, 
 Fleckner v. Bank of U. S., 8 Wheat. (U. S.) 338, 355; 1840, Burrill v. Nahant 
 Bank, 2 Mete. (Mass.) 163; 1848, Stevens v. Hill, 29 Maine 133; 1856, Man- 
 chester, etc., R. Co. v. Fisk, 33 N. H. 297; 1864, Arms v. Conant, 36 Vt. 744; 
 1881, Burleigh v. Ford, 61 N. H. 360; 1893, Skinner v. W. M. & R. M. Co., 
 140 N. Y. 217. 
 
 (d) Directors can not vote by proxy : 1891 , Craig Medicine Co. v. Merchants' 
 Bank, 59 Hun 561. Neither can shareholders unless specially authorized by 
 charter or statute or by law provision: 1812, State v. Tudor, 5 Day (Conn.) 
 329,5 Am. Dec. 162; 1829, Philips v. Wickham, 1 Paige (N. Y.) 590; 1834, Tay- 
 lor v. Griswold, 14 N. J. L. 2i'_'. ^i Am. Dec. 33 : infra, n. 1591 ; 1883, Common- 
 wealth v. Bringhurst, 103 Pa. St. 134, 49 Am. Rep. 119; 1890, Commonwealth 
 v. Detwiller, 131 Pa. St. 614, 7 L. R. A. 357. 
 
 Sec. 236. Same. 
 
 EDGERLY v. EMERSON. 1 
 
 1851. IN THE SUPERIOR COURT OF JUDICATURE OF NEW HAMP- 
 SHIRE; 23 N. H. Rep. 555-573, 55 Am. D. 207. 
 
 [The Rochester bank had obtained a judgment against Jones, Rich- 
 ards and Legro. Execution was levied by Edgerly, as deputy sheriff, 
 upon the goods of Jones, and these were delivered to Emerson for safe 
 keeping. Legro as surety for Jones paid the judgment, and the execu- 
 tion was discharged in writing on its back by the cashier of the bank. 
 Edgerly, relying upon a later assignment of the bank to Legro, de- 
 manded the goods of Emerson, who failed to deliver them. Edgerly 
 then sued him, alleging the goods were lost by Emerson's negligence, 
 and proposed to show that the discharge was written upon the execu- 
 tion through mistake, and contrary to the agreement of the parties, 
 and that the same was intended, and supposed at the time it was exe- 
 cuted, to be an assignment of said execution to Legro ; and to prove 
 this he offered the testimony of John McDuffie, Jr., who signed said 
 discharge, to which the defendant objected, but which the court ad- 
 mitted. 
 
 The plaintiff proposed to show by parol that it was agreed between 
 
 1 Statement abridged ; arguments and part of opinion omitted.
 
 852 EDGERLY V. EMERSON. 236 
 
 the bank and Legro that Legro should pay to the bank the amount 
 of the execution, and the bank, by its cashier, McDuffie, should as- 
 sign to him the execution, and all its rights, as against Jones, at the 
 same time that the discharge was written upon the execution ; but no 
 vote was passed upon the subject. 
 
 The defendant objected that the proceedings of the dii'ectors could 
 be proved by the records alone ; but the court decided that if the 
 directors agreed in any matter of business, it was not necessary that 
 any formal question should be put, or vote passed ; and that if their 
 agreement was not recorded, it might be shown by parol. 
 
 It appeared that the meeting of the directors, last referred to, was a 
 special meeting, and that only four of the seven directors were pres- 
 ent or notified. The defendant objected to the meeting as illegal, 
 but the court ruled that if a quorum were present, the proceedings 
 were valid.] 
 
 BELL, J. * * * It was also objected that the meeting of the 
 directors, on whose action the plaintiff relies, was illegal and their 
 proceedings invalid, because it was a special meeting at which only 
 four of the seven directors were present or notified. In the case of 
 The Despatch Line of Packets v. The Bellamy Manufacturing Com- 
 pany, 12 N. H. Rep. 205, certain questions were determined in rela- 
 tion to the powers of the directors of corporations, by which we 
 feel bound to abide. The case was considered with great care and 
 ability. In that case it was held : 
 
 I. That if the authority of the directors, to manage and exercise a 
 general superintendence and control over the affairs of the corpora- 
 tion, had been conferred by the charter itself, it would have been in 
 the nature of an original corporate power, in a definite number, and a 
 majority of the whole number being duly assembled at a regular 
 meeting might act by major vote of those present. 
 
 II. That where the by-laws of a private corporation confer upon 
 the directors power to act in behalf of the corporation without special 
 limitation as to the manner, a majority may act within the scope of 
 the authority given to the board and bind the corporation, either 
 where there is a consultation of all together and a concurrence of a 
 majority or where there is a regular meeting at which all might be 
 present, and a majority actually meet and act by major vote. 
 
 III. That the act of a majority of such board, in the case last sup- 
 posed, does not bind the corporation, unless 
 
 1. There was an assent of all the directors at a meeting, or, per- 
 haps, separately obtained. 
 
 2. Or there was a meeting and consultation of the whole board 
 and a vote of a majority. 
 
 3. Or a meeting held at some regular period, at which a majority 
 were present and acted by a major vote. 
 
 4. Or a meeting regularly notified, at which a majority assembled 
 and acted by major vote. 
 
 IV. When the act purports to be the act of the board, it may be 
 presumed it was the act of a majority until the contrary is shown. * *
 
 236 MODE OF ACTION. 853 
 
 But this applies only to a regular meeting, which is a stated meet- 
 ing, at which all have, of course, the needful notice and opportunity 
 to be present, or a special meeting, at which all have been duly noti- 
 fied to be present. The question which arises in this case is different. 
 The meeting in question was not a stated meeting nor a meeting at which . 
 all had been duly notified to be present. Four only of the seven directors 
 were present, and no others had been notified. The general princi- 
 ples applicable to the exercise of joint powers are well settled. When 
 individuals or corporations give an authority jointly to two or more 
 persons, in order to bind the principal all the agents must act. Jew- 
 ett v. Alton, 7 N. H. Rep. 253; Andover v. Grafton, 7 N. H. Rep. 
 304. But where a number of persons are by law entrusted with 
 power not of mere private confidence, but in some respects of a gen- 
 eral nature, and all of them are regularly assembled, the majority will 
 conclude the minority and their act will be the act of the whole. 
 Grindley v. Barker, i B. & P. 236; King v. Beeston, 3 D. &E. 592; 
 Green v. Millar, 6 Johns. 39; FarwelPs Petition, 2 N. H. Rep. 124; 
 Damon v. Granbly, 2 Pick. 345. 
 
 There are, however, many cases where an authority is granted to a 
 board or to several persons, or a majority of them, or a certain lim- 
 ited number, either more or less than a majority, who are thereby con- 
 stituted a quorum. Thus, in the usual form of bank charters there is 
 a provision that "no less than four directors shall constitute a board 
 for the transaction of business, of whom the president shall be one, ex- 
 cept in case of sickness or necessary absence, in which case the 
 directors present may choose a chairman for the time being, in his 
 stead." The effect of this clause we deem the same as a provision 
 that the directors, or any four of them, shall be competent to transact 
 any business of the bank. Four constitute a quorum, and when as- 
 sembled possess all the powers of the entire board. * * * 
 
 We are, therefore, of the opinion that where a quorum of the di- 
 rectors of a bank meet and unite in any determination the corpora- 
 tion are bound, whether the other directors are or are not notified. 
 
 Such, we understand, to be the construction, practically given to 
 this part of their charters by all our banking institutions, and we think 
 their convenience requires that it should be sustained. * * * 
 
 Verdict set aside on other grounds. 
 
 Note. Accord. 1876, State v. Smith, 48 Vt. 266; 1886, Bank v. Flour Co., 
 41 Ohio St. 552, on 558-9. Compare, 1898, Troy Mining Co. v. White, 10 S. 
 D. 475, 42 L. R. A. 549. See, however, contra, cases in note, supra, p. 850.
 
 854 UNITED STATES BANK V. DANDRIDGE ET AL. 237 
 
 ARTICLE III. MODE OF ACTION GENERALLY. 
 
 Sec. 237. Presumptions. 
 
 PRESIDENT, DIRECTORS, ETC., OF BANK OF THE UNITED STATES 
 v. DANDRIDGE ET AL. J 
 
 1827. IN THE SUPREME COURT OF THE UNITED STATES. 12 Wheat. 
 (25 U. S.) Rep. 64-116. 
 
 [Writ of error from the circuit court. 
 
 The original action was debt upon a bond, purporting to be signed 
 by Dandridge as principal, and six sureties, to insure the faithful per- 
 formance by Dandridge of the duties of cashier of the bank. The 
 plea was non estfactum, the ground of which was that the bond had 
 never been approved according to the rules and regulations of the 
 bank. These required the cashier "before entering upon the duties 
 of his office to give bond, with two or more sureties, to the satisfac- 
 tion of the directors" in a sum named. Evidence to show the execu- 
 tion and approval of the bond was offered, but upon objection was 
 rejected by the court. This is the error assigned.] 
 
 STORY, J. * * * It is material to state that the rejection of the 
 evidence did not proceed upon the ground that it was of a secondary 
 nature, leaving behind, in the possession of the plaintiffs, evidence of 
 a higher and more satisfactory nature. On the contrary, the whole 
 structure of the case shows that there was, in the understanding of both 
 the parties, no record ever made of the approval or acceptance of the 
 bond in question, and the principal controversy was whether it could 
 be established by any evidence short of such record proof. 
 
 The propositions maintained by the circuit court were, in substance, 
 these: First, that the cashier could not legally enter upon the duties 
 of his office, nor make his sureties responsible for his non-perform- 
 ance of those duties, before his official bond was accepted as satis- 
 factory by the board of directors, according to the terms of the char- 
 ter. Secondly, that such acceptance could be established only by 
 proof drawn from the records of the board of directors ; and if no rec- 
 ord had been kept of such assent and acceptance, the bond was inef- 
 fectual, and no secondary evidence could be admitted to establish the 
 fact. . 
 
 The last proposition will be first considered. The correctness of 
 it in a great measure depends upon the soundness of the distinction 
 taken between the acts of private persons and the acts of corporations. 
 It is admitted, in the opinion of the circuit court, that the evidence 
 offered would, in common cases, between private persons, have been 
 prima facie evidence, to be submitted to the jury as proof that the 
 bond was fully executed and accepted. But it is supposed that 
 a different rule prevails in cases of corporations; that their acts 
 
 1 Statement abridged ; much of Story's opinion, and most of the dissenting 
 opinion of Marshall, Ch. J., are omitted.
 
 237 PRESUMPTIONS AS TO CORPORATE ACTS. 855 
 
 must be established by positive record of proofs ; and that no pre- 
 sumptions can be made in their favor of corporate assent or adoption, 
 from other circumstances, though in respect to individuals the same 
 circumstances would be decisive. The doctrine, then, is maintained 
 from the nature of corporations, as distinguished from natural per- 
 sons ; and from the supposed incapacity of the former to do any act, 
 not evidenced by writing, and if done to prove it, except by writing. 
 
 Little light can be thrown on this subject, by considerations drawn 
 from corporations existing by the common law, or dependent upon 
 prescription. To corporations, however erected, there are said to be 
 certain incidents attached, without any express words or authority for 
 this purpose; such as the power to plead and be impleaded, to pur- 
 chase and alien, to make a common seal, and to pass by-laws. Com. 
 Dig. Franchise, F. 10, 13. In ancient times, it was held, that corpo- 
 rations aggregate could do nothing but by deed under their common 
 seal. But this principle must always have been understood with many 
 qualifications ; and seems inapplicable to acts and votes passed by such 
 corporations at corporate meetings. It was probably, in its origin, 
 applied to aggregate corporations at the common law, and limited to 
 such solemn proceedings as were usually evidenced under seal, and to 
 be done by those persons who had the custody of the common seal, 
 and had authority to bind the corporation thereby, as their permanent 
 official agents. Be this as it may, the rule has been broken in upon' 
 in a vast variety of cases, in modern times, and can not now, as a 
 general proposition, be supported. Mr. Justice Bayley, in Harper v. 
 Charlesworth, 4 B. & C. 575, said, "A corporation can only grant 
 by deed ; yet there are many things which a corporation has power to 
 do, otherwise than by deed. It may appoint a bailiff, and do other 
 acts of alike nature." And it is now firmly established, both in Eng- 
 land and America, that a corporation may be bound by a promise, 
 express or implied, resulting from the acts of its authorized agent, al- 
 though such authority be only by virtue of a corporate vote, unaccom- 
 panied with the corporate seal. * * * 
 
 By the general rules of evidence, presumptions are continually made, 
 in cases of private persons, of acts even of the most solemn nature, 
 when those acts are the natural result or necessary accompaniment of 
 other circumstances. In aid of this salutary principle, the law itself, 
 for the purpose of strengthening the infirmity of evidence, and uphold- 
 ing transactions intimately connected with the public peace, and the 
 security of private property, indulges its own presumptions. * * * 
 
 The same presumptions are, we think, applicable to corporations. 
 Persons acting publicly as officers of the corporation are to be pre- 
 sumed rightfully in office; acts done by the corporation, which prc-" 
 suppose the existence of other acts to make them legally operative, 
 are presumptive proofs of the latter. Grants and proceedings bene- 
 ficial to the corporation are presumed to be accepted, and slight acts 
 on their part, which can be reasonably accounted for, only upon the 
 supposition of such acceptance, are admitted as presumptions of the 
 fact. If officers of the corporation openly exercise a power which
 
 856 UNITED STATES BANK V. DANDRIDGE ET AL. 237 
 
 presupposes a delegated authority for the purpose, and other corpo- 
 rate acts show that the corporation must have contemplated the legal 
 existence of such authority, the acts of such officers will be deemed 
 rightful, and the delegated authority will be presumed. If a person 
 acts notoriously as cashier of a bank, and is recognized by the direc- 
 tors or by the corporation as an existing officer, a regular appointment 
 will be presumed, and his acts, as cashier, will bind the corporation, 
 although no written proof is or can be adduced of his appointment. In 
 short, we think that the acts of artificial persons afford the same pre- 
 sumptions as the acts of natural persons. Each affords presumptions 
 from acts done of what must have preceded them, as matters of right, 
 or matters of duty. 
 
 It may be not without use to advert to a few cases where corpo- 
 rate acts have been the subject of presumptions. In the first place, 
 we may advert to the known fact, that a charter may be presumed to 
 have been given to persons who have long acted as a corporation, and 
 assumed the exercise of the powers of a corporate body, whether of 
 an ordinary or extraordinary nature. This is the case in respect to 
 all corporations existing by prescription. Yet the very case supposes 
 that no written proof can be adduced of a charter, or of a vote of 
 the corporators to accept the charter. Yet, both a charter and ac- 
 ceptance are vital to the existence of the corporation. They are, 
 'however, presumed, not merely from the lapse of time, but from the 
 continued exercise of corporate powers, which presuppose their ex- 
 istence. So, in relation to the question of acceptance of a particular 
 charter, by an existing corporation, or by corporators already in the 
 exercise of corporate functions, the acts of the corporate officers are 
 admissible evidence from which the fact of acceptance may be infer- 
 red. It is not indispensable to show a written instrument or vote of 
 acceptance on the corporation books. It may be inferred from other 
 facts which demonstrate that it must have been accepted. * * * 
 
 In respect to grants and deeds beneficial to a corporation, there 
 seems to be no particular reason why their assent to and acceptance 
 of the same may not be inferred from their acts, as well as in the 
 case of individuals. Suppose a deed poll granting lands to a corpo- 
 ration, can it be necessary to show that there was an acceptance by 
 the corporation by an assent under seal, if it be a corporation at the 
 common law, or by a written vote, if the corporation may signify its 
 assent in that manner? Why may not its occupation and improve- 
 ment, and the demise of the land by its agents, be justly admitted by 
 implication to establish the fact in favor and for the benefit of the 
 corporation ? Why should the omission to record the assent, if act- 
 ually given, deprive the corporation of the property which it gained 
 in virtue of such actual assent? The validity of such a grant depends 
 upon the acceptance, not upon the mode by which it is proved. It is 
 no implied condition that the corporation shall perpetuate the evidence 
 of its assent in a particular way. At least, if it be so, we think it is 
 incumbent on those who maintain the affirmative to point out the 
 authorities which sustain it. None such have been cited at the 
 bar. * * *
 
 237 PRESUMPTIONS AS TO CORPORATE ACTS. 857 
 
 But the present question does not depend upon the point whether 
 the acts of a corporation may be proved otherwise than by some 
 written document. The reasoning upon it, however, was very ably 
 gone into at the bar, and as it furnishes very strong illustrations upon 
 the point now in judgment, it could not be passed over with propriety. 
 
 In the present case, the acts of the corporation itself, done at a 
 corporate meeting, are not in controversy. * * * 
 
 [After examining the charter and showing that the corporation was 
 created out of the subscribers to the stock, and that the management 
 was vested in a board of twenty-five directors, chosen by the share- 
 holders annually, proceeds:] 
 
 It is most manifest, that the corporation is altogether a distinct body 
 from the directors, possessing all the general powers and attributes of 
 an aggregate corporation, and entitled to direct and superintend the 
 management of its own property, and the government of the institu- 
 tion, and to enact by-laws for this purpose. So far as the act dele- 
 gates authority to the directors, the latter possess it, and may exercise 
 it, not as constituting the corporation itself, but as its express statute 
 agents, to act in the ordinary business of the institution. The direct- 
 ors are created a board, and not a corporate body. If the authority 
 delegated to them can only be exercised by them, when assembled as 
 a board, with a proper quorum, and not by the separate assent of a 
 majority of the whole body (on which it is unnecessary here to express 
 any opinion), still it is clear that their meetings and acts are but the 
 meetings and acts of a board of agents, acting ex officio, and not the 
 meetings and acts of the corporation itself. The whole structure of 
 the charter, and the whole proceedings under it, as well as the by-laws 
 and regulations which have come under our review, demonstrate that 
 this has been the uniform construction of the corporation itself, and of 
 the directors. Indeed, this is believed to be so universally acted upon, 
 in all the cases respecting banks, which have been judicially decided, 
 that it is not thought necessary to do more than express our opinion 
 that such is the true interpretation of this charter. * * * 
 
 Assuming, then, that the directors of the parent bank were, as a 
 board, to approve of the bond, so far as it respects the sureties, in 
 what manner is that approval to be evidenced? Without question, 
 the directors keep a record of their proceedings as a board, and it ap- 
 pears by the rules and regulations of the parent bank, read at the bar, 
 that the cashier is bound "to attend all meetings of the board and to 
 keep a fair and regular record of its proceedings." If he does not 
 keep such a record, are all such proceedings void, or is the bank at 
 liberty to establish them by secondary evidence? In the present case 
 (we repeat it) the whole argument has proceeded upon the ground, 
 as conceded, that no such record exists of the approval of the present 
 bond. * * 
 
 We ask, upon what ground it can be maintained that the approval 
 of the bond by the directors must be in writing? It is not required 
 by the terms of the charter, or the by-laws. In each of them, the 
 language points to the fact of approval, and not to the evidence by
 
 858 UNITED STATES BANK V. DANDRIDGE ET AL. 237 
 
 which it is to be established, if controverted. It is nowhere said the 
 approval shall be in writing or of record. The argument at the bar 
 upon the necessity of its being in writing must, therefore, depend for 
 its support upon the ground that it is a just inference of law from the 
 nature and objects of the statute, from the analogy of the board of 
 directors to a corporate body, from principles of public convenience 
 and necessity, or from the language of authorities, which ought not to 
 be departed from. Upon the best consideration we can give the sub- 
 ject, we do not think that the argument can be maintained under any 
 of these aspects. 
 
 If the directors had been a board constituted bv an unincorporated 
 company, or by a single person for the like purposes and with the 
 like powers, it would scarcely occur to any person that the acts of the 
 board must, of necessity, be reduced to writing before they could 
 bind their principal. The agents of private persons are not usually 
 in the habit of keeping regular minutes of all their joint proceedings, 
 and hitherto there has been no adjudication which requires such a 
 verification of their joint acts. Yet innumerable cases must have 
 arisen in which such a principle might have been applied with suc- 
 cess if it had been ever supposed to possess a legal existence. The 
 acts of private and public trustees, of joint agents for commercial 
 purposes, of commissioners for private objects and of public boards, 
 must have presented many occasions for passing upon such a doc- 
 trine. The silence of the books under such circumstances would form 
 no inconsiderable answer to the argument, connected as it must be 
 with the knowledge of the loose and inartificial manner in which much 
 of the business of agencies is generally conducted. There may be, 
 and undoubtedly there is, some convenience in the preservation of 
 minutes of proceedings by agents, but their subsequent acts are often 
 just as irresistible proof of the existence of prior dependent acts and 
 votes as if minutes were produced. If a board of directors were cre- 
 ated to erect a bridge, or make a canal or turnpike, and they pro- 
 ceeded to do the sen-ice, and under their superintendence there were 
 persons employed who executed the work, and the board proceeded 
 to pay them therefor out of funds in their hands, the facts of public 
 notoriety would be as irresistible evidence of the due execution of 
 their authority and of due contracts made and proceedings had by the 
 board as if the proceedings were recorded in the most formal and 
 regular manner. Can there be a doubt that in the cases put many 
 contracts are so varied and rescinded, many acts done and assented to 
 by the board which never are reduced to formal votes and declarations 
 and written proofs? We think we may safely say that the sense of 
 the profession and the course of private business have never, hitherto, 
 in respect to private agencies and boards, recognized the existence of 
 any rule which required their acts and proceedings to be justified by 
 written votes. 
 
 What foundation is there for a different rule in relation to agencies 
 for corporations? The acts of a single duly- authorized agent of a 
 corporation, within the scope of his authority, bind the corporation,
 
 237 PRESUMPTIONS AS TO CORPORATE ACTS. 859 
 
 although he keeps no minutes of such acts. They may be. and they 
 are, daily, proved aliundc. In what respects do the acts of a board 
 of agents differ from those of a single agent in their operation as 
 evidence ? A board may accept a contract, or approve a surety, by 
 vote, or by a tacit and implied assent. The vote or assent may be 
 more difficult of proof, by parol evidence, than if it were reduced to 
 writing. But surely this is not a sufficient reason for declaring that 
 the vote or assent is inoperative. If a board of directors agree to 
 build a banking-house, and it is accordingly built, and paid for by 
 their cashier, with their assent, is the whole proceeding to be deemed 
 void, because, in the progress of the undertaking, from accident or 
 negligence, the votes and the payments have not been verified by reg- 
 ular minutes? But it is said that in the present case the cashier is 
 required to keep a fair and regular record of the proceedings of the 
 directors. But if this be admitted, it does not establish the purpose 
 for which it is used. It is a by-law of the corporation, directorv to 
 its officers, enacted for its own security and benefit, and not for the 
 purpose of restricting the acts of the directors. If the cashier should 
 neglect to keep such records, or should omit any single vote, the by- 
 law has not declared that the vote shall be void and the proceedings 
 nugatory. Suppose no such by-law had been passed, would not the 
 votes of the board have bound the corporation? If they had dis- 
 counted notes, taken mortgages, advanced money, and bought stock, 
 by faith of viva voce unrecorded votes, and evidence of the existence 
 of these acts and votes necessarily resulted from the other proceedings 
 of the bank, could it be the intention of the legislature that they 
 should be utterly void? or of the stockholders that any by-law should 
 operate a legal extinguishment of their title to the property? It seems 
 to us difficult to imagine that such could be the legislative or corpo- 
 rate intention. If, in ordinary cases, such an intention could not be 
 inferred, in order to produce a very strict and inconvenient construc- 
 tion of the charter, there is still less reason to apply it to the cases of 
 approval of official bonds. These are taken exclusively for the secu- 
 rity and benefit of the bank itself, and not of mere strangers. The 
 approval is matter of discretion in the directors, and that discretion 
 once being exercised, it is of very little consequence to the bank 
 whether a written minute of the vote be made or not. All that the 
 bank is interested in is that there shall be an approval ; and it mat- 
 ters not whether the fact is established by a direct record, or by acts 
 of the directors, which recognize its prior existence. * * * 
 
 To all the authorities cited at the bar on this point, the counsel for 
 the defendants has made one answer, which he deems applicable to 
 all of them. It is this, that where no particular form for the expres- 
 sion of the corporate will is prescribed by law, there it may be in- 
 ferred from corporate acts; but that where such a form is prescribed 
 it must be followed. This distinction, he supposes, will reconcile all 
 the cases. The distinction, if admitted, will not aid the argument. 
 It may be, and, indeed, is conceded, that no corporate act can be 
 valid if done differently from the manner prescribed by law as essen-
 
 860 UNITED STATES BANK V. DANDRIDGE ET AL. 237 
 
 tial to its validity. If in the present case the statute had prescribed 
 that nothing but a written vote on record should be deemed an ap- 
 proval of the bond, or that the cashier should not be deemed for any 
 purpose in office until such approval, the consequence contended for 
 would have followed. His acts would have been utterly void, and any 
 unrecorded vote pf approval nugatory. But the very point in contro- 
 versy is whether such written record be necessary by the charter or by- 
 laws, not as a matter of convenience or discreet exercise of authority, 
 but as a sine qua non to the validity of the act. The cases which 
 have been commented on by the court do not deny the distinction, but 
 proceed upon the ground that, unless positively required by law, a 
 written vote is not to be deemed indispensable. The court is then 
 called upon, not to administer a doctrine of strict and sett4ed and 
 technical law, but to introduce a new rule into the law of evidence, 
 and to exclude presumptive evidence, not only of the acts of corpora- 
 tions, but of their unincorporated agents. If such a rule be fit to be 
 adopted it must be upon the foundation of some clear and unequivo- 
 cal analogy of law, and public policy and convenience. We are not 
 pi'epared to admit that it has any such foundation. On the contrary, 
 we are persuaded that the introduction of the rule itself would be 
 attended with serious public mischiefs, and shake many titles and 
 rights which have been consummated in entire good faith, and the 
 confidence that no such written record was necessary to their validity. 
 We can not, therefore, assent to the doctrine decided in the circuit 
 court on this point. * * * 
 
 Reversed. 
 
 MARSHALL, CH. J., dissenting. * * * The plaintiff is a corporation 
 aggregate ; a being created by law ; itself impersonal, though composed 
 of many individuals. These individuals change at will, and even 
 while members of the corporation can, in virtue of such member- 
 ship, perform no corporate act, but are responsible in their natural 
 capacities, both while members of the corporation and after they 
 cease to be so, for everything they do, whether in the name of the 
 corporation or otherwise. The corporation being one entire imper- 
 sonal entity, distinct from the individuals who compose it, must be 
 endowed with a mode of action peculiar to itself, which will always 
 distinguish its transactions from those of its members. This faculty 
 must be exercised according to its own nature. Can such a being 
 speak or act otherwise than in writing? Being destitute of the nat- 
 ural organs of man, being distinct from all its members, can it com- 
 municate its resolutions or declare its will without the aid of some ad- 
 equate substitute for those organs? If the answer to this question 
 must be in the negative what is that substitute? I can imagine no 
 other than writing. The will to be announced is the aggregate will ; 
 the voice which utters it must be the aggregate voice. Human or- 
 gans belong only to individuals ; the words they utter are the word of 
 individuals. These individuals must speak collectively, to speak cor- 
 porately, and must use a collective voice; they have no such voice, 
 and must communicate this collective will in some other mode. That
 
 237 PRESUMPTIONS AS TO CORPORATE ACTS. 86 1 
 
 other mode, as it seems to me, must be by writing. A corporation 
 will generally act by its agents ; but those agents have no self-existing 
 power. It must be created by law, or communicated by the body 
 itself. This can be done only by writing. 
 
 If, then, corporations were novelties, and we were required now to 
 devise the means by which they should transact their affairs, or com- 
 municate their will, we should, I think, from a consideration of their 
 nature, of their capacities and disabilities, be compelled to say, that 
 where other means were not provided by statute, such will must be 
 expressed in writing. But they are not novelties. They are institu- 
 tions of very ancient date ; and the books abound with cases in which 
 their character, and their means of action, have been thoroughly in- 
 vestigated. In Brooke's Abridgment (title Corporation) we find 
 many cases, cited chiefly from the Year Books, from which the gen- 
 eral principle is to be extracted, that a corporation aggregate can nei- 
 ther give nor receive, nor do anything of importance, without deed. 
 Lord Coke, in his commentary on Littleton (66), says, "but no 
 corporation aggregate of many persons capable" "can do homage." 
 "And the reason is, because homage must be done in person, and a 
 corporation aggregate of many can not appear in person ; for, albeit, 
 the bodies natural, whereupon the body politic consists, may be seen, 
 yet the body politic or corporate itself can not be seen, nor do any 
 act, but by attorney." So, too, a corporation is incapable of attorn- 
 ing, otherwise than by deed (6 Co., 386), or of surrendering a lease 
 for years (10 Co., 676), or of presenting a clerk to a living (Bro. 
 Corp., 83), or of appointing a person to seize forfeited goods (i 
 Vent., 47), or agreeing to a disseizin to their use (Bro. Corp., 34). 
 These incapacities are founded on the impersonal character of a cor- 
 poration aggregate, and the principle must be equally applicable to 
 every act of a personal nature. * * * 
 
 It is stated in the old books (Bro. Corp., 49) that a corporation 
 may have a ploughman, butler, cook, etc., without retaining them by 
 deed; and in the same book (p. 50) Wood says, "small things need 
 not be in writing, as to light a candle, make a fire and turn cattle off 
 the land." Fairfax said, "A corporation can not have a servant but 
 by deed; small things are admissible on account of custom, and the 
 trouble of a deed in such cases, not by strict law." Some subsequent 
 cases show that officers may be appointed without deed, but not that 
 they may be appointed without writing. Every instalment under 
 seal was designated as a deed, and all writings not under seal 
 were considered as acts by parol. Consequently, when the old 
 books say a thing may be done without deed or by parol, nothing 
 more is intended than that it may be done without a sealed instru- 
 ment. It may still require to be in writing. In 2 Bac. Abr., 13, it is 
 said, "aggregate corporations, consisting of a constant succession of 
 various persons, can regularly do no act without writing; therefore, 
 gifts by and to them must be by deed." In page 340 it is said, "if 
 a corporation aggregate disseize to the use of another, they are dissei- 
 zors in their natural capacity,", "as a corporation they can regularly 
 do no act without writing." 
 
 See note at the end of the next case.
 
 862 ZOLLER V. IDE. 238 
 
 Sec. 238. Execution of contracts. 
 
 ZOLLER v. IDE. 
 1871. IN THE SUPREME COURT OF NEBRASKA, i Neb. Rep. 439. 
 
 This was a bill in chancery, filed to recover the legal title to lands. 
 Zoller sought to make his title through a corporation called "The 
 Sulphur Springs Land Company," by a deed which ran, "I, Thomas 
 H. Benton, Jr., President of the Sulphur Springs Land Company, do 
 hereby convey," etc., and was signed by Benton in the same way. 
 
 The court, by Lockwood, J., held that this conveyance did not 
 pass the title of the company, and, therefore, Zoller did not show 
 title in himself. 
 
 Note. See, as to use of seal, infra, pp. 1136-1153. 
 
 1. Corporate meetings, both those of shareholders and directors, being de- 
 liberative assemblies are conducted in such ways as may be convenient and 
 agreeable to the members, though, perhaps, in the absence of any specific 
 charter or by-law regulations, or custom to the contrary, they are supposed to 
 follow ordinary parliamentary usage: 1829, Phillips v. Wickham, 1 Paige 
 Ch. (N. Y.) 590; 1834, People v. Peck, 11 Wend. (N. Y.) 604; 1849, Hughes v. 
 Parker, 20 N. H. 58; 1851, Downing v. Potts, 23 N. J. L. 66; 1852, People v. 
 Campbell, 2 Cal. 135; 1875, State v. Pettineli, 10 Nev. 141; 1879, In re Hor- 
 bury, etc., Co., L. R. 11 Ch. Div. 109; 1889, Landers v. Frank St. M. E. 
 Church, 114 N. Y. 626; 1890, Henderson v. Bank of -Australasia, 62 L. T. Rep. 
 869. 
 
 2. It is not necessary to the validity of corporate action that the proceed- 
 ings be recorded: 1848, Waters v. Gilbert, 56 Mass. (2 Cush.) 27; 1859, 
 Langsdale v. Bonton, 12 Ind. 467; 1891, Handley v. Stutz, 139 U. S. 417; 1892, 
 New Boston Fire Ins. Co. v. Saunders, 67 N. H. 249; 1896, Boggs v. Lakeport, 
 etc., Assoc., Ill Cal. 354; 1897, Zalesky v. Iowa, etc., Co., 102 Iowa 512, 70 
 N. W. Rep. 187. 
 
 3. If corporate records are kept, they are the best evidence of the corporate 
 action, and other evidence is not admissible until it is shown the records can 
 not be obtained: 1817, Hallowell, etc., Bank v. Hamlin, 14 Mass. 178; 1820, 
 Owings v. Speed, 5 Wheat. (U. S.) 420; 1830, Thayer v. Middlesex Co., 27 
 Mass. (10 Pick.) 326; 1852, Gould v. Norfolk, etc., Co., 63 Mass. (9 Cnsh.) 
 338; 1888, Dial v. Valley, etc, Assoc., 29 S. C. 560; 1891, Mullanphy Sav. 
 Bank v. Schoot, 135 111. 655; 1891, Bowick v. Miller, 21 Ore. 25; 1895, Man- 
 del v. Swan, etc., Co., 154 111. 177. But compare, 1845, Van Hook v. Som- 
 erville, etc., Co., 5 N. J. Eq. 137, 169; 1897, Johnson v. Okerstrom, 70 Minn. 
 303, on 308. 
 
 4. All corporate contracts and conveyances should be made in the legal 
 name of the corporation, and be executed by it in its own name, and not in 
 the name of the person representing it. It is usual, though not necessary, for 
 the instrument itself somewhere to recite that the person who actually repre- 
 sents the corporation has been duly authorized to execute the instrument for 
 and in the name of the corporation. 
 
 Illustrations, (a) Deed: The following would be proper: Know all men 
 by these presents, that the A. B. Co., a corporation duly organized and exist- 
 ing under and by authority of the laws of , in consideration of 
 dollars to it paid, etc., does hereby grant, etc., unto the X. Y. Co., a corpora- 
 tion duly organized and existing under and by authority of the laws of , 
 
 its successors and assigns forever, the following, etc., etc. 
 
 And the said A. B. Co., for itself and its successors, does hereby covenant, 
 etc., etc. 
 
 In witness whereof, the said A. B. Co. has hereunto caused its corporate 
 name to be signed, and its corporate seal to be affixed, and the same to be at-
 
 238 EXECUTION OF CONTRACTS. 863 
 
 tested by the signatures of C. D., its president, and E. F., its secretary, being 
 
 thereunto duly authorized, on this day of . 
 
 [CORPORATE SEAL.] A. B. Co., 
 
 Signed, sealed and acknowledged By C. D., its president, and 
 
 in our presence: E. F., its secretary. 
 
 Witness : 
 
 In Norris v. Dains, 52 O. S. 215 (1894), an instrument worded and executed 
 as follows was held not to be the act of the company : Know all men by these 
 presents, That I, G. F. Baker, treasurer of the S. I. & C. M. Co., by virtue of 
 the power in me vested by virtue of the vote of directors of said company (a 
 
 copy of which is hereto annexed), and in consideration of dollars, etc., 
 
 to me paid by, etc., do hereby sell, etc., to G. W. Norris, etc. In witness 
 whereof, I, the said G. F. Baker, treasurer as aforesaid, in behalf of said com- 
 pany, have hereunto set my hand and the seal of said company this eighth 
 day of, etc. 
 
 G. F. BAKER, Treas. of S. I. & C. M. Co. 
 
 T , o n ff J - F - Augustus, /Seal. S. I. & C. M. Co.,\ 
 
 In presence of ( j Nicke son . Organized 1864. 
 
 (Copy of vote of directors, authorizing lease to be made to Norris, and 
 authorizing the treasurer to execute the same.) 
 Commw. of Mass., Suffolk Co., ss., Nov., 1864. 
 
 "Then personally appeared G. F. Baker, who executed the foregoing instru- 
 ment, and acknowledged the same to be bis free act and deed and the free 
 act and deed of said company before me. 
 
 J. NICKERSON, Justice of the Peace. 
 
 Some of the older cases, however, hold that a conveyance by an authorized 
 officer, sealed with the corporate seal, is valid as the act of the corporation. 
 See 1830, Savings Bank v. Davis, 8 Conn. 191 (old cases collected in counsel's 
 brief); 1832, Leggett v. N. J. Mfg. Co., 1 Saxton Ch. (N. J.) 541, 23 Am. 
 Dec. 728, note, 746. 
 
 But the more recent cases, as well as many of the early cases, approve the 
 rule above stated. I am indebted to J. H. Brewster, professor of conveyanc- 
 ing in the law department of U. of M. for most of the following: 1614, Combes' 
 Case, 9 Co. Rep. 75, 766; 1824, Hatch v. Barr, 1 Ohio 390; 1827, Coburn v. 
 Ellenwood, 4 N. H. 99; 1847, Isham v. Bennington Iron Co., 19 Vt. 230; 
 1848, Bnnley v. Mann, 2 Gush. (Mass.) 337; 1863, Miller v. Rutland R. Co., 
 36 Vt. 452; 1872, Merrill v. Montgomery, 25 Mich. 73; 1873, Northwestern 
 Distilling Co. v. Brant, 69 111. 658, 18 Am. Rep 631 ; 1876, Hays v. Galion 
 G. L. & C. Co., 29 Ohio St. 330, on 334; 1880, C., B. & Q. R. Co. v. Lewis. 
 53 Iowa 101 ; 1882, Merchants v. Goddin, 76 Va. 503 ; 1883 Eppright v. 
 Nickerson, 78 Mo. 482; 1887, Galloway v. Hamilton, 68 Wis., 651; 1889, 
 Alta Silver M. Co. v. Mining Co., 78 Cal. 629; 1890, McElroy v. Nucleus 
 Assoc., 131 Pa. St. 393; 1891, Danville Seminary v. Mott, 136 111. 289; 1893, 
 Brown v. Farmer's Supply Co., 23 Ore. 541, 32 Pac Rep. 548; 1894, Norris v. 
 Dains, 52 Ohio St. 215; 1894, Gray v. Waldron, 101 Mich. 612; 1895, Garrett 
 v. Belmont Land Co., 94 Tenn. 459 (collecting cases as to seal); 1897, Globe 
 Accident I. Co. v, Reid, 19 Ind. App. 203; 1897, Jones v. Williams, 139 Mo. 
 1,61 Am. St. Rep. 436; 1898, Lewis v. Pulitzer Pub. Co., 77 Mo. App. 434; 
 1899, Little Saw Mill V. T. & Co. v. Fed. St. R. Co., 193 Pa. 144, 45 Atl. 
 Rep. 66; 1900, New Memphis Gaslight Co. Cases, 105 Tenn. 268, 80 Am. St. 
 Rep. 880, 60 S. W. 206. 
 
 As to seal, see powers of corporation to have a seal, infra, pp. 1136-1153. 
 
 (b) Acknowledgment: The American Bar Association (5 Report, 1882, p. 
 304) recommends the adoption and use of the following form for the acknowl- 
 edgment by a corporation. According to the last edition of Jones' Forms of 
 Conveyancing, p. 9, this form has been authorized by Iowa, Code 1897, 
 2959-60; Massachusetts, Acts 1894, cli. 253; Michigan, Public Acts 1895, p. 
 346; Minnesota, 2 G. S. 1894, ch. 72; MiHsouri, R. S. 1889, 2408; New Mex- 
 ico, Comp. Laws 1897, 3945. It undoubtedly would be sufficient in m:my 
 other states, though perhaps not in all ; and in any event, if there is any stat-
 
 864 ZOLLER V. IDE. 238 
 
 ute of the state upon the subject it should be consuked and carefully fol- 
 lowed. The form suggested is : 
 
 "State of , county of , ss: 
 
 On this day of , 19, before me, the subscriber [insert here the 
 
 title of the ojieer], "appeared C. D., to me personally known, who, being by me 
 duly sworn (or affirmed), did say that he is the president [or other officer or 
 agent of the corporation or association] of [describing the corporation or associa- 
 tion], and that the seal affixed to said instrument is the corporate seal of said 
 corporation [or association], and that sai4 instrument was signed and sealed 
 in behalf of said corporation [or association! by authority of its board of direc- 
 tors [or trustees], and said C. D. acknowledged said instrument to be the 
 free act and deed of said corporation [or association]. 
 
 [In case the corporation or association has no corporate seal omit the tvords 
 "the seal affixed to said instrument is the corporate, seal of said corporation (or 
 association) and that' 1 and add at the end of the affidavit clause the words "and 
 that said corporation (or association) has no corporate seal. 1 "] 
 
 [" In all cases add the signature and title of the officer taking the acknowledg- 
 ment."] 
 
 See the following: 1872, Merrill v. Montgomery, 25 Mich. 73; 1877, Kelly 
 v. Calhoun, 95 U. S. 710; 1880, C. B. & Q. R. Co. v. Lewis, 53 Iowa 101 ; 
 1883, Eppright v. Nickerson, 78 Mo. 482; 1894, Gray v. Waldron, 101 Mich. 
 612; 1894, Jinwright v. Nelson, 105 Ala. 399. 
 
 (c) Notes, etc. The ordinary form of a note would be : 
 
 "One year after date, for value received, The A. B. Co. promises to pay to 
 the X. Y. Co. or order, the sum of dollars, at , with interest, etc. 
 
 "The A. B. Co., by C. D., its president (or officer duly authorized)." 
 
 This would be properly indorsed as follows: 
 
 "Pay to the order of John Doe. 
 
 "TheX.Y. Co., by E. F., its president (or other officer authorized)." 
 
 It is not necessary to attach the corporate seal 1868, Jones v. Horner, 60 
 Pa. St. 214, and some of the earlier cases held that affixing the seal to what 
 would otherwise be a negotiable instrument would make it non-negotiable : 
 1810, Warren v. Lynch. 5 Johns. (N. Y.) 239; 1836, Clark v. Farmer's Woolen 
 Mfg. Co., 15 Wend. (N.' Y.) 256; 1840, Prevail v. Fitch, 5 Whart. (Pa.) 325, 34 
 Am. Dec. 558; 1866, Conine v. Junction, etc., R. Co., 3 Houst. (Del.) 288, 89 
 Am. Dec. 230; 1881, Cue v. The Cayuga L. R. Co. (C.C. N. D.), 8 Fed. Rep. 
 534. 
 
 But the recent cases all hold otherwise : 1873, Bank v. Railroad Co., 5 S. C. 
 156; 1875, Jackson v. Meyers, 43 Md. 452; 1889, Miller v. Roach, 150 Mass. 
 140; 1891, Stevens v. Ball Club, 142 Pa. St. 52; 1894, Weeks v. Esler, 143 N. 
 Y. 374; 1896, Chase National Bank v. Faurot, 149 N. Y.532; 1897, Landauer 
 v. Sioux, etc., Co., 10 S. D. 205, 72 N. W. Rep. 467; 1898, Clark v. Read, 12 
 App. D. C. 343. 
 
 Judge Thompson, however, thinks it is useful to affix the corporate seal, as 
 showing it is the note of the corporation, and not that of the officer signing 
 for the corporation, and also furnishing prima facie evidence of agent's 
 authority, and of everything else necessary to the validity of the act: IV. 
 Thompson, 5054, 5105, 5123 n. 1, p. 3839; 1840, Burrill v. Nahant Bank, 2 
 Met. (Mass.) 163, 35 Am. Dec. 395; 1867, Gashwiler v. Willis, 33 Cal. 11, 11 
 Am. Dec. 607, note collecting cases, p. 616 ; 1889, Miller v. Roach, 150 Mass. 
 140. See, infra, pp. 1147-1153. 
 
 There is much conflict as to the effect of making and signing promissory 
 notes in a way different from that suggested above: e. g. Where a note read 
 " We promise to pay, etc.," signed "Dubuque Matress Co., John Kapp, Ft." it 
 was held to be the note of Kapp as well as of the corporation, and parol evi- 
 dence was not admitted to show it to be only the note of the corporation. 
 1893, Matbews v. Dubuque Matress Co., 87 Iowa 246, 54 N. W. Rep. 225. On 
 the other hand, 1889, Liebscher v. Kraus, 74 Wis. 387, where the note read 
 " We promise to pay, etc.," signed "San Pedro Mining and Milling Co., F. 
 Kraus, President," it was held to be the note of the corporation alone, and
 
 238 EXECUTION OF CONTRACTS 86$ 
 
 parol evidence was inadmissible to show Kraus was a joint maker. Again 
 when the note read " We promise to pat/, etc.," and was signed "National Forge 
 and Iron Co., Mark Swarts, President," it was held to be ambiguous, as to 
 whether it was the note of Swarts alone, or the company alone, or a joint- 
 note, and parol evidence was admitted to clear up the ambiguity. 1894, 
 Swarts v. Cohen, 11 Ind. App. 20. In neither of the foregoing was the corpo- 
 rate seal affixed. In Miller v. Roach, 150 Mass. 140 (1889), the note read, 
 "We promise to pay, etc.," and in the usual place of the signature the corpo- 
 rate seal, giving the name of the corporation, was stamped, and "John Roach, 
 Treasurer," was written partly across the seal. This was held to be the note 
 of the company. 
 
 Judge Thompson, Vol. iv, 5121-54, and DanielPs Negotiable Instruments, 
 401-415, review many cases. The form of making and executing corporate 
 notes is discussed in the following cases: 1823, Mott v. Hicks, 1 Cow. (N. Y.) 
 513, 13 Am. Dec. 550; 1839, Horah v. Long. 4 Dev. & B. (N. C.) 274, 34 Am. 
 Dec. 378; 1855, Pierce v. Robie, 39 Maine 205, 63 Am. Dec. 614; 1880, Pack v. 
 White, 78 Ky. 243; 1889, McKensey v. Edwards, 88 Ky. 272, 21 Am. St. Rep. 
 339; 1889, Liebscher v. Kraus, 74 Wis. 387, 17 Am. St. Rep. 171; 1889, 
 McCandless v. Belle Plaine, etc., Co., 78 Iowa 161, 16 Am. St. Rep. 429; 1894, 
 Swarts v. Cohen, 11 Ind. App. 20, collecting cases; 1896, Hately v. Pike, 162 
 111. 241, 53 Am. St. Rep. 304; 1896, Nebraska Nat'l Bank v. Ferguson, 49 Neb. 
 109, 59 Am. St. Rep. 522; 1897, Albany Furniture Co. v. Merchants' Nat'l 
 Bank, 17 Ind. App. 531; 1897, Taylor v. Reger, 18 Ind. App. 466; 1898, 
 National Bank v. Allen, 90 Fed. Rep. 545, 33 C. C. A. 169; 1898, Clark v. 
 Read, 12 App. D. C. 343 ; 1899, Youngs v. Perry, 42 App. Div. (N. Y.) 247 ; 
 1900, Crawford v. Albany Ice Co., 36 Ore. 535, 60 Pac. Rep. 14. 
 
 55 WIL. CAS.
 
 TITLE VII. CORPORATE DEATH DISSOLUTION 
 
 CHAPTER 11. 
 MODES AND EFFECT OF DISSOLUTION. 
 
 ARTICLE I. METHODS OF DISSOLUTION. 
 
 Sec. 239. In general. 
 
 THE BOSTON GLASS MANUFACTORY v. LANGDON. 1 
 
 1834. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 
 24 Pick. (Mass.) 49-54, 35 Am. Dec. 292. 
 
 [Assumpsit by Glass company upon a note given by defendant to 
 plaintiff. Plea in abatement that there was at time of suit no such 
 corporation the facts showing an incorporation and organization in 
 1811, an assignment of all the corporate property in 1817 to trustees 
 to pay creditors, and an omission to hold annual meetings, choose di- 
 rectors or transact business since that time. The jury were instructed 
 that the corporate life continued, and they found for the plaintiff. 
 The instructions and verdict upon them are assigned as errors.] 
 
 MORTON, J. * * * The legal establishment and due organiza- 
 tion of the corporation were admitted ; but it was contended that the 
 facts disclosed showed a dissolution of it. 
 
 The elementary treatises on corporations describe four methods in 
 which they may be dissolved. It is said that -private corporations 
 may lose their legal existence by the act of the legislature; by the 
 death of all the members; by a forfeiture of their franchises : and 
 by a surrender of their charters. 2 Kyd Corp. 447; I Bl. Comm. 
 485; 2 Kent's Comm. (ist ed.) 245; Angell and Ames Corp., 501 ; 
 Oakes v. Hill, 14 Pick. 442. No other mode of dissolution is any- 
 where mentioned or alluded to. 
 
 I. In England, where the parliament is said to be omnipotent, and 
 where in fact there is no constitutional restraint upon their action, 
 but their own discretion and sense of right, corporations are supposed 
 to hold their franchises at the will of the legislature. But if they pos- 
 
 1 Statement abridged ; arguments and part of opinion omitted. 
 
 (866)
 
 239 METHODS OF DISSOLUTION. 86/ 
 
 sess the power to annul charters, it certainly has been rarely exercised 
 by them. In this country, where the legislative power is carefully de- 
 fined by explicit fundamental laws, by which it must be governed and 
 beyond which it can not go, it has become a question of some diffi- 
 culty to determine the precise extent of their authority in relation to 
 the revocation of charters granted by them. But as it is not pre- 
 tended that there has been any legislative repeal of the plaintiff's 
 charter, it will not be useful further to discuss this branch of the sub- 
 ject. 
 
 2. As all the original stockholders are not deceased, the corporation 
 can not be dissolved for the want of members to sustain and exercise 
 the corporate powers. Besides, this mode of dissolution can not apply 
 to pecuniary or business corporations. The shares, being property, 
 pass by assignment, bequest or descent, and must ever remain the 
 property of some persons, -who of necessity must be members of the 
 corporation as long as it may exist. 
 
 3. Although a corporation may forfeit its charter by an abuse or 
 misuser of its powers and franchises, yet this can only take effect 
 upon a judgment of a competent tribunal. 2 Kent's Comm. ( ist ed. ) 
 249; Corporation of Colchester v. Seaber, 3 Burr. 1866; Smith's 
 Case, 4 Mod. 53. Whatever neglect of duty or abuse of power the 
 corporation may have been guilty of, it is perfectly clear that they 
 have not lost their charter by forfeiture. Until a judicial decree to 
 this effect be passed, they will continue their corporate existence. 
 The King v. Amery, 2 T. R. 515. 
 
 4. Charters are in many respects compacts between the govern- 
 ment and the corporators. And as the former can not deprive the 
 latter of their franchises in violation of the compact, so the latter can 
 not put an end to the compact without the consent of the former. It 
 is equally obligatory on both parties. The surrender of a charter 
 can only be made by some formal solemn act of the corporation; and 
 'will be of no avail until accepted by the government. There must be 
 the same agreement of the parties to dissolve that there "was to form 
 the compact. It is the acceptance 'which gives efficacy to the surren- 
 der. The dissolution of a corporation, it is said, extinguishes all its 
 debts. The power of dissolving itself by its own act would be a 
 dangerous power, and one which can not be supposed to exist. 
 
 But there is nothing in this case which shows an intention of the 
 corporators to surrender or forfeit their charter, nor anything which 
 can be construed into a surrender or forfeiture. 
 
 T'he possession of property is not essential to the existence of a cor- 
 poration. 2 Kent's Comm. (ist ed.) 249. Its insolvency can not, 
 therefore, extinguish its legal existence. Nor can the assignment of 
 all its property to pay its debts, or for any other purpose, have that 
 effect. The instrument of assignment was not so intended, and can 
 not be so construed. All its provisions look to the continuance of 
 the corporation. It contains covenants that the assignees may use the 
 corporate name for the collection of the debts and the disposition of 
 the property assigned ; that the corporation will not hinder or ob-
 
 868 BRADLEY V. REPPELL. 240 
 
 struct them in the performance of these functions ; that it will make 
 any further conveyances and assurances which may become necessary, 
 and will do and perform any other and further acts which may be re- 
 quired to enable the assignees fully to execute their trust. The in- 
 strument which covenants for future acts can not be construed to take 
 away all power of action. 
 
 The omission to choose directors clearly does not show a dissolution 
 of the corporation. Although the proper officers may be necessary to 
 enable the body to act, yet they are not essential to its vitality. Even the 
 want of officers and the want of power to elect them, would not be 
 fatal to its existence. It has a potentiality which might, by proper 
 authority, be called into action without affecting the identity of the 
 corporate body. Colchester v. Seaber, 3 Burr. 1870. 
 
 But here in fact was no lack of officers. Although no directors had 
 been chosen for several years, yet by the by-laws of the corporation 
 the directors, though chosen for one year, were to continue in office 
 till others were chosen in their stead. * * * 
 
 Affirmed. 
 
 Note. Modes of dissolution. In Swan Land, etc., Co. v. Frank, 148 U. S. 603, 
 611 (1893), Mr. Justice Jackson states the following methods of dissolution: 
 (1; By expiration of charter; (2) by failure of an essential part that can not 
 be restored; (3) by dissolution and surrender of franchise with consent of 
 the state; (4) by legislative enactment within constitutional authority; (5) 
 by forfeiture of franchises and judgment of dissolution declared in regular 
 judicial proceedings, or by other lawful means. 
 
 In 9 Am. & Eng. Ency. of Law, p. 546, 2d ed., it is said : "A corporation may 
 be dissolved: (1) By the repeal of its charter; (2) by the happening of a 
 condition or contingency prescribed by the charter ; (3) by the natural death 
 of all its members or the loss of an integral part; (4) by the surrender of its 
 franchises ; (5) by expiration of the period of its existence as limited in its 
 charter ; (6) by judgment of forfeiture in a judicial proceeding. 
 
 Elliott Private Corporations, 592, says dissolution may be effected (1) by 
 the expiration of the statutory period of its existence; (2) an act of the legis- 
 lature under a reserved power to repeal ; (3) the surrender of the charter 
 with the consent of the state ; (4) the forfeiture of the charter for misuse or 
 non-use of its powers ; (5) the loss of an integral part without whose exist- 
 ence the functions of the corporation can not be exercised, and (6) compli- 
 ance with whatever statutory requirements may exist in order to effect a vol- 
 untary dissolution. 
 
 Sec. 240. Expiration of charter. 
 
 BRADLEY v. REPPELL. 1 
 
 1896. IN THE SUPREME COURT OF MISSOURI. 133 Mo. Rep. 545- 
 561, 54 Am. St. Rep. 685. 
 
 [Ejectment by Bradley to recover land claimed by Reppell by ad- 
 verse possession. Plaintiff offered in evidence to show title a certified 
 copy of a deed to the land executed by the West Kansas City Land 
 
 1 Statement much abridged, arguments and much of the opinion omitted.
 
 240 METHODS OF DISSOLUTION. 869 
 
 Company, by its president and secretary, August 20. 1880. This 
 company was incorporated by special act of March 14, 1859, without 
 any special provision as to its duration. The general law at the time 
 provided that every corporation should have succession for the period 
 limited in its charter, and when no period is limited, for twenty years, 
 with power in the president and directors to settle up its affairs after- 
 ward. A demurrer to the plaintiff ';s evidence contained in the deed was 
 sustained by the court on the ground that corporate life had ceased at 
 the time of its execution, and there was a verdict for the defendant. 
 Sustaining the demurrer is the error assigned. To the defendant's 
 contention that the corporate life had ceased before the deed was exe- 
 cuted, the plaintiff answered that a de facto corporation existed, and 
 its acts could be questioned only by the state.] 
 
 BRACE, P. J. * * * This answer does not meet the question, 
 unless it be assumed that a corporation whose corporate existence has 
 expired by the terms of the law which created it still exists as a de 
 facto corporation as to all persons except the state, an assumption that 
 we think is not sustained by the authorities cited, and is not "the set- 
 tled law in this state." 
 
 On the contrary, in this state, as elsewhere, unless otherwise pro- 
 vided by statute, the law is, that where the term of the existence of a 
 corporation is fixed by its charter or the general law, upon the expira- 
 tion of that term the corporation becomes ip so facto dissolved; it can 
 no longer act in a corporate capacity and its title to property ceases. 
 2 Beach Priv. Corp., 780; 2 Morawetz Priv. Corp., 1031. In 
 such an event in this state the title to its property is by statute de- 
 volved upon trustees for the settlement of its affairs and the distribu- 
 tion of its assets. R. S. 1855, ch. 34, 24; R. S. 1889, 2513. And 
 thereafter it has no power to make a legal contract or convey property 
 in its corporate name and capacity; it ceases to be a corporation de 
 jure et de facto, for the reason that there is no law in force authoriz- 
 ing its existence, and no law by virtue of which it might exist, and no 
 person, unless estopped by his own action, ought to be, or can be, 
 precluded from showing this fact, apparent on the face of the law it- 
 self, without the necessity of any judicial investigation, in an issue in- 
 volving his own personal rights and interests. 
 
 An examination of the authorities cited by counsel for respondents, 
 and of all the other cases touching this question, will show that it has 
 never been otherwise ruled in this state, nor elsewhere so far as we 
 have been able to discover. 
 
 The first case cited by counsel for respondent, Mclndoe v. St. Louis, 
 10 Mo. 576, does not touch the question, side, edge, or bottom. The 
 cases of Chambers v. St. Louis, 29 Mo. 543; Land v. Coffman, 50 
 Mo. 243; Shewalter v. Pirner, 55 Mo. 218, and Conn. Mutual Ins. 
 Co. v. Smith, 117 Mo. 261, go no farther in the direction of our 
 present inquiry than to hold that where an existing corporation has 
 power to acquire, hold and dispose of land, the question whether such 
 corporation has transcended the limits of such power in respect thereto 
 can only be raised and determined in a direct proceeding by the state
 
 8/O BRADLEY V. REPPELL. 240 
 
 against the corporation. But this falls far short of the question here 
 which goes to the fact of the existence of the corporation, conceded 
 in these cases. 
 
 It is also well-settled law that one who has contracted with an or- 
 ganization as a corporation in its corporate name is estopped from 
 denying the existence of su-ch corporation at the time of making the 
 contract or of alleging any defect in its organization affecting its ca- 
 pacity to contract or sue as a corporation upon such contract. 4 
 Thomp. Corp., 5275; 4 Am. & Eng. Ency. of Law, p. 198, and 
 cases cited, note i, p. 199; 2 Morawetz Priv. Corp., 750, 753; i 
 Beach Priv. Corp., 13. 
 
 And so it has been ruled in this state in many cases, including those 
 next cited in the brief of counsel for respondent. Railroad v. Mc- 
 Pherson, 35 Mo. 13; Ins. Co. v. Needles, 52 Mo. 18; St. Louis v. 
 Shields, 62 Mo. 247; Stoutimore v. Clark, 70 Mo. 471 ; Studebaker 
 Bros. v. Montgomery, 74 Mo. 101 ; St. Louis Gaslight Co. v. St. 
 Louis, 84 Mo. 202, affirming n Mo. App. 55 ; Broadwell v. Merritt, 
 87 Mo. 95 ; Granby Mining Co. v. Richards, 95 Mo. 106. 
 
 Of course, such estoppel extends as well to the primes of as to 
 the parties to such contracts. Hasenritter v. Kirchhoffer, 79 Mo. 
 239; Ragan v. McElroy, 98 Mo. 349; Broadwell v. Merritt, 87 Mo. 
 95; Reinhard v. Lead Mining Co., 107 Mo. 616. 
 
 The ruling in none of these cases, however, supports the conten- 
 tion that the deeds should have been admitted in evidence in the case 
 in hand, in which, as has been already seen, there is no question of 
 estoppel. 
 
 Nor do the cases of Finch v. Ullman, 105 Mo. 255, or Crenshaw 
 v. Ullman, 113 Mo. 633, cited by plaintiff's counsel, in which it was 
 ruled (where there was a law authorizing the existence of the corpo- 
 ration, at the time when the organization assumed to act and did act 
 as such corporation) that its corporate existence as to such act could 
 not be called in question in a collateral proceeding, sustain respondent's 
 contention. 
 
 It is true in these and in other cases it is sometimes broadly stated 
 as settled law, in substance, "that a transfer of property to or by a 
 corporation de facto will be binding and valid as against all parties 
 except the state," but this is simply a restatement in another form of 
 the proposition ruled. It implies that the case is one in which a cor- 
 poration may by law exist, for there can be no corporation de facto 
 when there can not be a corporation de jure (i Beach Priv. Corp., 
 13; 4 Thomp. Corp., 5275; i Thomp. Corp., 523); atleast as 
 to any person who is not precluded by his own action, or that of those 
 under whom he claims, from questioning its existence. Whatever 
 may be the rule as to these, as to all other persons there must be at 
 least color of law for its corporate existence to preclude such inquiry, 
 and it would seem to go without saying that a law which gives exist- 
 ence to a corporation for a certain number of years, at the end of 
 which time it must surely die, can not give color to its corporate ex-
 
 241 METHODS OF DISSOLUTION. 8/1 
 
 istence after the date of its death as decreed by the terms of that same 
 law. 
 
 Judge Thompson, in his recent work on Private Corporations, says : 
 "There is much judicial authority for the proposition that where a cor- 
 poration is brought to an end by lapse of time, that is, by the expira- 
 tion of the distinct limitation of its life in its charter, any further exercise 
 of its corporate powers may be questioned collaterally. The govern- 
 ing principle here is that, upon the expiration of the term limited by 
 the charter for the existence of the corporation, its dissolution is com- 
 plete. 'The dissolution in such a case,' it has been said, 'is declared 
 by the act of legislature itself. The limited time of existence has ex- 
 pired, and no judicial determination of that fact is requisite. The 
 corporation is de facto dead '." Thomp. Corp., 530, citing, in sup- 
 port of the text, People v. Manhattan Co., 9 Wend. (N. Y.) 351; 
 Morgan v. Ins. Co., 3 Ind. 285; Wilson v. Tesson, 12 Ind. 285; 
 Grand Rapids Bridge Co. v. Prange, 35 Mich. 400; Dobson v. Si- 
 monton, 86 N. C. 492 ; Sturges v. Vanderbilt, 73 N. Y. 384; Bank 
 of U. S. v. McLaughlin's Adm'r, 2 Cranch C. C. (U. S.) 20. 
 
 (Citing and discussing St. Louis Gaslight Co. v. St. Louis, 84 
 Mo. 202, and Miller v. Coal Co., 31 W. Va. 836, contra, and con- 
 cluding the statements therein were dicta.') * * * 
 
 Affirmed, and this opinion adopted by the court in bane, four 
 judges concurring, and two dissenting. 
 
 Note. Compare 1888, Miller v. Newberg Coal Co., 31 W. Va. 836, 13 Am. 
 St. Rep. 903. 
 
 Note: See, also, 1832, Chesapeake, etc., Co. v. Bait. & O. R. Co., 4 Gill & J. 
 (Md.) 1, on 123; 1841, Commercial Bank v. Lockwood, 2 Harr. (Del.) 8; 
 1844, State Bank v. Wrenn, 3 Sm. & M. (Miss.) 791 ; 1845, Greeley v. Smith, 
 3 Story 567, 658; 1846, Gallipolie Bank v. Trimble, 6 B. Mon. (Ky.) 599, 601 ; 
 1870, LaGrange, etc., R. Co. v. Rainey, 47 Tenn. (7 Cold.) 420; 1878, 
 Sturges v. Vanderbilt, 73 N. Y. 384,390; 1880, Eagle Chair Co. v. Kelsey, 
 23 Kan. 632; 1885, Asheville Div. No. 15 v. Astor, 92 N. C. 578, 585; 1888, 
 People v. Anderson, etc., Co., 76 Cal. 190; 1891, Logan v. Western, etc., R. 
 Co., 87 Ga. 533. 
 
 Sec. 241. Happening of a condition or contingency prescribed 
 by the charter. 
 
 BROOKLYN STEAM TRANSIT CO. v. CITY OF BROOKLYN. 1 
 
 1879. IN THE COURT OF APPEALS OF NEW YORK. 78 N. Y. Rep. 
 
 5H-535- 
 
 [Suit by the transit company to restrain the city from interfering with 
 it in constructing its road in the city streets. The charter of 1871 pro- 
 vided that "unless said transit company be organized, and at least one 
 mile of such railroad * * * be laid within three years" after the pas- 
 
 1 Statement much abridged ; arguments and much of opinion on other points 
 omitted.
 
 STEAM TRANSIT CO. V. CITY OF BROOKLYN. 24! 
 
 sage of the act, "all the powers, rights and franchises herein granted shall 
 be deemed forfeited and terminated." A supplementary act in 1873 
 provided forthe construction "as provided in the original act," and en- 
 acted "the time for the construction of the one mile of railroad * * * 
 is hereby extended to the fourth day of July, 1876. No road was con- 
 structed till June, 1878, when a mile was laid upon the surface of a 
 portion of its route outside of Brooklyn, and about the same time op- 
 erations were begun in the city, when it was prevented from proceed- 
 ing further by the city. Judgment below for defendant.] 
 
 EARL, J. * * * The claim of the defendant is that the plaintiff 
 lost its corporate existence by not building the one mile of its read 
 before the expiration of the time limited, to wit, July 4, 1876. 
 
 The general principle is not disputed that a corporation, by omit- 
 ting to perform a duty imposed by its charter, or to comply with its 
 provisions, does not ip so facto lose its corporate character or cease to 
 be a corporation, but simply exposes itself to the hazard of being de- 
 prived of its corporate character and franchises by the judgment of 
 the courfin an action instituted for that purpose by the attorney-gen- 
 eral in behalf of the people ; but it can not be denied that the legisla- 
 ture has the power to provide that a corporation may lose its corpo- 
 rate existence without the intervention of the courts by any omission of 
 duty or violation of its charter or default as to limitations imposed, 
 and whether the legislature has intended so to provide in any case 
 depends upon the construction of the language used. Hei'e the lan- 
 guage used shows that the legislature intended to make the continued 
 existence of the plaintiff as a corporation depend upon its compliance 
 with the requirements of section seventeen of the original act. In 
 case of non-compliance the act itself was to cease to have any opera- 
 tion, and all the powers, rights and franchises thereby granted were 
 to be "deemed forfeited and terminated." There was to be not 
 merely a cause of forfeiture which could be enforced in an action in- 
 stituted by the attorney-general, but the powers, rights and franchises 
 were to be taken and treated as forfeited and terminated. 
 
 At the end of time limited the corporation was to come to an end, 
 as if that were the time limited in its charter for its corporate exist- 
 ence. A precise authority for this construction of this statute is found 
 in the case of the Brooklyn, Winfield and Newton Railroad Com- 
 pany (72 N. Y. 245). That company was organized under the gen- 
 eral railroad act of 1850, as amended by the act, chapter 775 of the 
 law of 1867. By the last-named act it is provided that "if any cor- 
 poration formed under the general act shall not, within five years 
 after its articles of association are filed and recorded, begin the con- 
 struction of its road and expend thereon ten per cent, on the amount 
 of its capital, or shall not finish its road and put it in operation in ten 
 years from the time of filing its articles of association, as aforesaid, 
 its corporate existence and powers shall cease." That company had 
 not begun the construction of its road within the time limited, and it 
 was held that it had lost its corporate existence, and the same view 
 was emphatically reiterated when a similar case of the same company
 
 242 METHODS OF DISSOLUTION. 873 
 
 was again before this court (75 N. Y. 335). It was held that the 
 statute executed itself, and that the intervention of the courts in an 
 action instituted by the attorney-general was not necessary. The 
 language of limitation used in section seventeen of the act of 1871, 
 more plainly if possible indicates the legislative intention, that a fail- 
 ure to comply with the limitations should put an absolute end to the 
 corporation, than the language used in the act 1867. 
 Judgment for defendant affirmed. * * * 
 
 Note. See, 1839, Crease v. Babeock, 23 Pick. (Mass.) 335, 34 Am. Dec. 61 ; 
 1857, Mobile, etc., R. v. State, 29 Ala. 573; 1869, N. Y., etc., R. Co. v. Boston, 
 etc., R. Co., 36 Conn. 196; 1873, Oakland R. Co. v. Oakland, 45 Cal. 365; 
 1885, Cornmw. v. Lykens W. Co., 110 Pa. St. 391 ; 1888. Atchison, etc., R. Co. 
 v. Nave, 38 Kan. 744, 5 Am. St. Rep. 800; 1889, Eliznbethtown Gas L. Co. v. 
 Green, 46 N. J. Eq. 118; 1892, Houston v. Houston Belt R. Co., 84 Tex. 581, 
 590; 1892, Ford v. Kansas City, etc., R. Co., 52 Mo. App. 439; 1894, Belle- 
 ville v. City, etc., R. Co., 152 111. 171, 26 L. R. A. 681. 
 
 And compare, 1872, Flint and Fentonville P. R. Co. v. Woodhull, 25 Mich. 
 99, supra, p. 39*: 1877,Wallamet, etc., Co. v. Kittridge, 5 Saw. 44; 1896, N. Y. 
 L. I. & B. Co. v. Smith, 148 N. Y. 540; 1897, State v. Spartanburg, etc., R. 
 Co., 51 S. C. 129, 28 S. E. Rep. 145. 
 
 Sec. 242. Death of members. 
 
 McGINTY v. ATHOL RESERVOIR COMPANY. 1 
 
 1892. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 
 155 Mass. Rep. 183-188. 
 
 [Action by McGinty for damages for personal injury done him 
 while in employ of the defendant. Suit was brought originally 
 against certain individuals who pleaded in abatement that the injury 
 was done, if at all, by the reservoir company, a corporation of which 
 they were members. Plaintiff then amended his writ and substituted 
 the reservoir company as defendant, alleging it to be a corporation. 
 This the reservoir company denies. It appears that three persons 
 named and their associates, by an act of 1854, were "made a corpo- 
 ration by the name of the Athol Reservoir Co.," the capital stock not 
 to exceed $10,000, to be issued only at a par value per share to be 
 fixed. One of the persons named, without objection from the others, 
 and seven persons not named, met and accepted the act of incorpora- 
 tion, organized and commenced business under it. Whether or not 
 there was a corporation was left to the jury who found for the plaintiff, 
 and defendant accepted.] 
 
 MORTON, J. * * * It is clear that the persons who took part 
 in these proceedings became a corporation under the name of the 
 Athol Reservoir Company. Chester Glass Co. v. Dewey, 16 M:iss. 
 94 ; Walworth v. Brackett, 98 Mass. 98 ; Hawes v. Anglo-Saxon Pe- 
 troleum Co., 101 Mass. 385, 393; Minor v. Mechanics' Bank, I Pet. 
 
 1 Statement abridged, and only part of opinion given.
 
 874 M'GINTY v. ATHOL RESERVOIR COMPANY. 242 
 
 46; Frost v. Frostburg Coal Co., 24 How. 278. It is true that none 
 of the capital stock has been issued. Something in the nature of cap- 
 ital or joint stock has been paid in, and has been expended by the 
 company in the construction of its dams ; but neither the paying in 
 nor the issuing of it was a condition precedent to the existence of the 
 corporation. See cases supra. Nothing in the act of incorporation, 
 nor in chapters 38 and 44 of the Revised Statutes referred to in it, 
 required either to be done as precedent to the formation of the corpo- 
 ration. As soon, therefore, as the act of incorporation was accepted 
 and an organization effected the grant from the state took effect, and 
 the corporation began to exist. 
 
 It is contended, however, that all the persons named in the act of 
 incorporation, and who took part in the organization, are dead; that, 
 no stock having been issued, there was no provision for a succession 
 of members; and that therefore the corporation has been dissolved 
 by operation of law. Undoubtedly a corporation may be dissolved 
 by the death of all its members, or by the loss of an integral part oj 
 its organization, so that the exercise of its corporate functions can 
 not be restored. Penobscot Boom Co. v. Lamson, 16 Maine 224, 
 231. But it appears that the company has met annually since its 
 organization and elected officers, and has from time to time, as occa- 
 sion required, held special meetings; that it built and has maintained 
 the dam, which it was chartered especially to build, and has built two 
 others, and had voted to build and was constructing the dam on which 
 the plaintiff was injured; that it has taken in the corporate name a 
 deed of the land on which the dam authorized by the act was built, 
 and also deeds of certain rights of flowage ; and that it has transacted 
 other business that was incident to and grew out of the purpose for 
 which it was chartered. 
 
 There can be no reasonable doubt that the persons interested have 
 believed that they were acting and have intended to act as a corpora- 
 tion, and they should be held to be one unless there are insuperable 
 difficulties in the way. We do not think there are. The corporation 
 was established for the purpose of constructing and supporting a res- 
 ervoir to supply the mills on the stream below it. Before the act of 
 incorporation was passed a number of mill-owners on the stream had 
 associated themselves together by an agreement bearing date April 
 26, 1853, for the purpose of constructing and maintaining a reservoir 
 across it. The agreement provided among other things, "that those 
 who may hereafter have their (the parties) respective estates in the 
 mills, mill-dams and mill privileges, shall succeed to their rights and 
 be subject to their duties respectively in the reservoir;" that the busi- 
 ness of the association should be under the control of the association, 
 and that the proprietors of each of the several mill-dams who were 
 parties to said agreement should be entitled to a voice in all the busi- 
 ness of the association equal to the proportion of the expenses which 
 such dam was to pay ; and that dam-owners who were not parties 
 might become such at any time by paying their reasonable proportion 
 of the expenses. By article 6 of its by-laws the corporation adopted
 
 243 METHODS OF DISSOLUTION. 875 
 
 "as the basis of their association the articles of agreement made and 
 entered into by the members thereof as proprietors of mills, bearing 
 date April 26, 1853." Article 5 of the by-laws provided that the 
 capital stock should consist of $2,500 divided into snares of $25 each, 
 and that the money already advanced for the purpose of the associa- 
 tion should go in part payment for the shares. // is clear that the 
 corporation succeeded to and took the place of the association. The 
 members of the latter became and were members of the former, and 
 the evident intention ivas that as the members of the corporation died 
 or conveyed their mills, mill-dams, or mill privileges, those -who suc- 
 ceeded to their respective estates as heirs or purchasers should become 
 members of the corporation in their stead, and succeed to their re- 
 spective interests in it. The uniform practice since the corporation 
 was formed shows that this was and has been the understanding. 
 
 Ordinarily, membership in a private trading corporation arises from 
 the ownership of stock which has been issued by it, but it is not al- 
 ways so. In re Philadelphia Savings Institution, i Whart. 461. 
 Shares might have been issued in the present case, or could be issued 
 now. Instead of issuing shares, however, the members in substance 
 agreed that their rights in the joint or capital stock of the corporation 
 should pass with the mills, mill-dams and mill privileges, thus con- 
 fining the membership to persons directly interested in the mainte- 
 nance of the dams. In the absence of any restriction in the charter, 
 we think that in the case of a corporation like this there can be no 
 valid objection to a membership so constituted, and therefore that the 
 objection that the corporation has been dissolved by the death of the 
 original members can not be sustained. Watuppa Reservoir v. Fall 
 River, 134 Mass. 267. * * * 
 
 Exceptions sustained upon other points. 
 
 Note. See Russell v. M'Lellan, 14 Pick. (Mass.) 63. 
 
 Sec. 243. Loss of integral part. 
 
 PHILIPS v. WICKHAM ET AL. 
 
 1829. IN THE COURT OF CHANCERY OF NEW YORK. I Paige 
 (N. Y.) Ch. Rep. 590-601. 
 
 [By an act of 1807, drainage commissioners were created, with 
 powers to cease on the first Tuesday in June, 1808, at which time the 
 owners of lands affected were to meet at a designated place, and se- 
 lect other commissioners for one year, and so on annually. In 1828, 
 no election was held, and the old commissioners continued to act. 
 In 1829, new commissioners, the defendants, were elected. Their 
 power was denied on the ground that the failure to elect in 1828 ter- 
 minated their official existence.] 
 
 THE CHANCELLOR (Wai worth). * * * If a corporation con- 
 sists of several integral parts, and some of those are gone, and the 
 remaining parts have no power to supply the deficiency, the corpora-
 
 8/6 PHILIPS V. WICKHAM ET AL. 243 
 
 tion is dissolved. As in the case in Rolle (i Roll. Abr. 514, I.), 
 where the corporation was to be composed of a certain number of 
 brothers, and a certain number of sisters, and all the sisters were dead, 
 it was admitted that all grants and acts done by the brothers aft- 
 erward were void ; for, after the sisters were dead, it was not a per- 
 fect corporation. But the case, which is immediately afterwards 
 stated by Rolle, shows that if the brothers had possessed the power 
 to appoint other sisters in the place of those who were dead, the cor- 
 poration might have been revived. So, Baron Comyn says, if a 
 corporation refuses to continue the election of officers till all die who 
 could make an election, the corporation is dissolved. (4 Com. Dig. 
 273, tit. Franchises, G. 4. 
 
 The incapacity to receive or resuscitate the powers of a corporation 
 may arise from three causes: i. The absence of the necessary offi- 
 cers who are required to be present when the deficiency is supplied, or 
 their incapacity or neglect to do some act which is requisite to the 
 validity of the appointment. 2. The want of the necessary corpora- 
 tors who are required to unite in the appointment; and 3. The want 
 of the proper persons from whom the appointment is to be made. 
 The case of The Corporation of Banbury, before referred to, appears 
 to be one of the first description. And the case cited from Rolle and 
 that put by Chief Baron Comyn, as well as the King v. Passmore 
 (3 Term Rep. 199), and The Corporation of Maidstone and The 
 Borough of Teverton, referred to in that case, all appear to belong to 
 the two last classes of cases. The statute, n Geo. i, ch. 4 (15 Stat. 
 at Large 178), has provided for the first class of cases, but the sixth 
 section of the act expressly excludes the second class, and no provis- 
 ion is made for cases of the third class. The result of an examina- 
 tion of all the cases on this subject is the principle so ably and suc- 
 cessfully contended for by Serjeant East in the King v. Passmore, 
 that if the corporators have the power in themselves to supply the de- 
 ficiency in their body their rights are not extinguished but only dor- 
 mant. If, however, that power is gone, and they can not act until 
 the deficiency is supplied, the corporation is dissolved. In the lan- 
 guage of Lord Macclesfield, this is not a forfeiture for non-user, but is 
 a consequence of law. "The corporation is dead, and not barely 
 asleep." * * * 
 
 [The court then concluded that because of the fact that the electors 
 could meet at a fixed time and place without the intervention of the 
 commissioners, there was nothing requiring a continued succession of 
 such commissioners and hence new commissioners could be elected at 
 any annual meeting.] 
 
 Note. See 2 Kyd Cor. 448. 1717, Banbury 's Case, 10 Mod. 346; 1803, Rex 
 v. Morris, 3 East 213; 1833, Lehigh R. B. Co. v. Lehigh Coal Co., 4 Rawle 
 (Pa.) 9; 1838, State University v. Williams, 9 Gill & J. (Md.) 365, 421, 31 
 Am. Dec. 72; 1854, State v. Vincennes Univ., 5 Ind. 77; 1875, Harris v. Mis- 
 sissippi V. R. Co., 51 Miss. 602.
 
 244 MF.TIIons OF DISSOLUTION. 877 
 
 Sec. 244. Surrender. 
 
 THE MECHANICS' BANK v. HEARD. 1 
 1867. IN THE SUPREME COURT OF GEORGIA. 37 Ga. Rep. 401-422. 
 
 [Suit by Heard against the bank upon bills which it refused to pay. 
 The sheriff's return showed personal service upon "T. S. Metcalf, 
 president of the Mechanics' Bank," September 12, 1866. Metcalf 
 put in a traverse averring that he was not at that time president of 
 the bank, and that it had at a meeting of the stockholders on February 
 20, 1866, duly called, and by a unanimous vote of the directors, sur- 
 rendered the charter to the state, and by order of said meeting notice 
 of such surrender was sent to, and received by, the governor of the 
 state, thus dissolving the corporation. The bank asked for a special 
 jury to try this collateral issue, and the court refused, allowing this 
 issue to be tried with others in the case. The jury found for the 
 plaintiff. Among the errors assigned was the refusal of a special jury 
 to try the collateral issue as to the surrender of the corporate exist- 
 ence.] 
 
 HARRIS, J. * * * It can not be denied that all banking cor- 
 porations in America are the creatures of legislatively ill, and that no 
 power to create such corporations belongs to either of the other de- 
 partments of the state government. Nor can it be denied that every 
 act of the legislature creating a banking corporation upon its accept- 
 ance becomes an executed contract between the state and corporation. 
 This principle, decided in Dartmouth College v. Woodard, 4 Whea- 
 ton 518, places plaintiff in error within the protection of the constitu- 
 tion of the United States. Under such protection it follows that the 
 act creating the Mechanics' Bank as a corporation can not be modified 
 or repealed by the legislature of Georgia without the free assent of the 
 corporators, and then only when such alteration or repeal does not 
 affect the rights of its creditors. It may be safely asserted that the 
 legislature, its creator, has no power of its "will merely to dissolve it. 
 As long as it performs its engagement by the act creating it, it has a 
 corporate existence within the limit of time fixed by the act which can 
 not be shortened. 
 
 This brings us to consider the grounds on which corporations (pri- 
 vate) could be dissolved at common law. 
 
 They are: i. Death of the corporators. 2. Surrender of char- 
 ter accepted and enrolled. 3. Forfeiture. Section 3. Burrows 
 Repts. 1866. 
 
 But counsel for plaintiff in error have gravely, and with seeming 
 earnestness, asserted a dissolution of a corporation by a voluntary sur- 
 render was unknown to the common law, that such a privilege was 
 the creation of our code, and upon this assumption rests the plaintiff's 
 case. Let us see if it can stand the test of examination. It is said 
 of corporations created by letters-patent from the crown, that the 
 
 1 Statement abridged ; arguments, part of opinion, and dissenting opinion 
 of Walker, J., omitted.
 
 878 THE MECHANICS' BANK v. HEARD. 244 
 
 king could not ex mero motu alter or resume his grant. It could be 
 dissolved upon the free consent of the corporators surrendering their 
 franchises under the seal of the corporation. Grant on Corporations, 
 p. 303. Rex v. Lanier, Salk. 168; 8 Meeson and Welsby, i. 
 
 Here then we find that surrender was a mode whereby a corpora- 
 tion might be dissolved. It was voluntary, for it proceeded from 
 \\\o. free consent of the corporators. The franchise could not be re- 
 sumed unless the grantees concurred. Rex v. Lanier, Salk. 168 ; 8 
 Meeson and Welsby, i. Thus v/e have the definition of surrender; 
 its characteristic is that it is voluntary, springing from the free consent 
 of the corporators. Can more be necessary to satisfy the enquirer 
 that a voluntary surrender was a mode whereby a dissolution of a cor- 
 poration might be effected according to the common law ? To make 
 it complete, such surrender required the assent or acceptance of the 
 creator of the corporation, duly enrolled and of record. The En- 
 glish authorities cited established these doctrines. 
 
 Our code, in enumerating the grounds whereby corporations are 
 dissolved, but repeats those existing at common law. "Surrender" 
 is one of them. In a subsequent clause, voluntary surrender is de- 
 fined, thus clearly showing that in the minds of the codifiers they 
 were one and the same mode. 
 
 An identity is thus shown between "surrender" at common law, 
 ana tne surrender or voluntary surrender of the code, proceeding alike 
 from the free will of the corporators. 'Tis this which distinguishes 
 them from another mode of dissolution by forfeiture; this last is the 
 result solely of the coercion, compulsion by the judgment of a court. 
 In England the surrender was required to be made to the creator of 
 the corporation. In Georgia, the code requires it to be made to the 
 state, by which the legislature, as the creator by law of banking cor- 
 porations, must necessarily be understood. * * * 
 
 Counsel have throughout confounded the resolution to make a sur- 
 render with an actual dissolution of a corporation. These things are 
 entirely distinct, proceeding from different parties. A surrender is 
 not a dissolution ; it is but a mode, a way, a means to an end. The 
 corporators consent to surrender their franchise, tender it back to the 
 legislature and ask to be dissolved as a corporation. This is their free 
 act and proceeds from one party to the contract. If the surrender is 
 formal under the seal of the corporation and the legislature, the other 
 party to the contract in behalf of the state accepts it by an act or or- 
 dinance in some authoritative form, and that is authenticated as law 
 and ordinances usually are, then, and not till then, is the dissolution 
 
 of the corporation upon surrender and the evidence of it complete. 
 
 * * * 
 
 Now corporations in Great Britain were created either by virtue of 
 the royal prerogatives or by act of parliament; if by the crown, by 
 letters-patent under its seal and duly enrolled; if by parliament, by 
 an act of the three estates duly enrolled and with the great seal 
 attached. 
 
 In the case of crown grants, when dissolved upon surrender by the
 
 244 METHODS OF DISSOLUTION. 8/9 
 
 grantees, the acceptance of the king of such surrender was required 
 to be enrolled and of record. 3 Burr. Rep. 1866; i Wooddeson's 
 Lectures, 500; i Salk. Rep. 191. Parliamentary could only be dis- 
 solved by act of parliament. See Grant on Corporations. 
 
 The foregoing are familiar principles regulating the creation and 
 dissolution of corporations, and they are in accordance with a maxim 
 pervading the common law in other departments. Nihil tarn conven- 
 iens est naturali aequitati quam unum quoque dissolet eo ligamine 
 quo ligatum est. 
 
 Again, "a corporation aggregate may surrender and in that way 
 dissolve itself, but then the surrender must be accepted by government, 
 and be made by some solemn act to render it complete." 2 Kent's 
 Conic 209. 
 
 An act of the legislature repealing the act of incorporation, passed 
 'with the assent of the corporators, would undoubtedly be sufficient 
 to effect a dissolution. Revere v. Boston Copper Co., 15 Pick. R. 
 
 35 1 - 
 
 The surrender must be by a formal act of the corporation under 
 
 seal ; and it can not avail but by an acceptance of such surrender by 
 an enrolled act or laiv. There must be the same agreement to dissolve 
 as to make. The power in a corporation to dissolve by its o-wn act 
 is too dangerous to be supposed to exist. See Boston Glass Co. v. 
 Langdon, 24 Pickering Rep. 49. 
 
 In this country, where corporations are usually created by act of 
 the legislature, no mode of surrender is pointed out by the books as 
 necessary to be pursued, differing from that in England, where cor- 
 porations are usually created by charter from the crown. It is said a 
 surrender, if accepted, will be sufficient. Angell and Ames on Cor- 
 porations, 638; 2 Kent. Com. 250; 15 Pick. Rep. 351. 
 
 As the identity of surrender at common law as a mode of dissolu- 
 tion of a corporation, with the surrender defined by the code, can not 
 but be conceded by every lawyer who will take the trouble of investi- 
 gating the subject, and no mode or form is prescribed by the code as 
 necessary to be pursued in order to make it effectual, there seems to 
 me no escape from the necessity of alleging, and, in support of such 
 allegation, exhibiting, some act or ordinance of the legislature, ap- 
 proved by the governor, assenting to or accepting the proposed sur- 
 render of their franchise by the Mechanics' Bank. 
 
 A dissolution at the will of corporators would leave no evidence of 
 the surrender but the entry of the resolution of the corporators on the 
 minutes of the bank, and when thus dissolved who can say where will 
 be the depository of the minutes ? 
 
 In fine the proposition of plaintiff in error involves, besides what 
 has been said in reference to it, this striking inequality, that a law 
 containing a contract of the highest importance between the corpora- 
 tion and the state may be set aside and annulled at the ivtll of the 
 corporators by a mere resolution, notice of which is given to the gov- 
 ernor, whilst the state can not alter or repeal that law, or resume the 
 franchises granted, or compel their delivery up or cause a dissolution
 
 88o MERCHANTS' AND PLANTERS' LINE v. WAGANER. 245 
 
 of that corporation, but upon some ground of forfeiture judicially es- 
 tablished, and the judgment thereon of a competent court. Such ine- 
 quality between the rights of contracting parties as flows from the 
 position of plaintiff's counsel demonstrates the absurdity of such 
 position. 
 
 Affirmed. 
 
 Note. See note to 246. 
 
 Sec. 245. Same. 
 
 MERCHANTS' AND PLANTERS' LINE v. WAGANER. 1 
 
 1882. IN THE SUPREME COURT OF ALABAMA. 71 Ala. Rep. 
 
 581-589. 
 
 [Bill filed in 1882 by Waganer and others, as shareholders in the 
 line corporation asking for a dissolution of the corporation, and to- 
 hold the directors thereof personally liable for misconduct and mis- 
 management. The corporation was organized in November, 1879,. 
 and by-laws were adopted, one of which provided, ''This corporation 
 shall be dissolved January i, 1881." These were made part of the 
 bill ; to this a demurrer was filed, on the ground that the corporation 
 was dissolved before the suit was brought. The demurrer was over- 
 ruled in the lower court and this is the error assigned.] 
 
 STONE, J. * * * In Aug. & Ames on Corp., 766, after enumer- 
 ating several modes by which corporations may be dissolved, the authors 
 say: "To these modes of dissolution may be added one grown to be 
 quite common in this country : the dissolution of a corporation by expi- 
 ration of the term of its duration, limited by charter or general law." 
 And in section 772 the same authors say : ' 'In this country, the power of 
 a private corporation to dissolve itself by its own assent seems to be as- 
 sumed by nearly all the judges who touch upon the point." Many 
 authorities are cited in support of this; but the authors add: "It 
 would seem that, as there are two parties to the charter compact, the 
 assent of both would be necessary to the abrogation of the contract." 
 In Tread well v. Salisbury Manuf. Co., 7 Gray 393, the Supreme 
 Court of Massachusetts held that corporations of a private nature, 
 established solely for manufacturing purposes, may by vote, even of 
 a majority of their members, wind up their business and close their 
 operations, if they elect to do so. It will be observed that this right 
 is placed on the ground that the corporation was pui'ely of a private 
 nature, in which the public could not be supposed to have any inter- 
 est. Between such corporation and any joint adventure in which 
 parties may associate themselves, there can be little or no difference, 
 so far as the rights of the public are concerned. * * * 
 
 We hold that the stockholders of this corporation had the power to 
 dissolve it, without obtaining the consent of the state. This princi- 
 ple was so announced in Savage v. Walshe, 26 Ala. 619. See, also, 
 M. & O. R. Co. v. State, 29 Ala. 573; McLaren v. Pennington, I 
 Paige 102; Enfield Toll Bridge Co. v. Conn. Riv. Co., 7 Conn. 45; 
 
 1 Statement much abridged, and only part of the opinion given.
 
 246 METHODS OF DISSOLUTION. 88 1 
 
 Slee v. Bloom, 19 Johns. 456; Canal Co. v. R. Co., 4 Gill & Johns, 
 r; Mclntyre Poor School v. .Zanesville Canal Co., 9 Ohio 203; 
 Mumma v. Potomac Co., 8 Pet. 281. 
 
 In the very act of organizing this corporation the stockholders, by a 
 by-law, fixed the term of its duration. Their language was, it shall 
 be dissolved on the first day of January, iSSi. A more solemn agree- 
 ment and compact could not be entered into. We can not know that 
 in the absence of that compact the corporation ever would have been 
 organized, or its duties entered upon. We hold that such stipulation, 
 embodied in the original compact, is at least as obligatory on the stock- 
 holders as a resolution afterwards adopted would be. This put an 
 end to the corporation, as a corporation January i, iSSi. * * * 
 
 [Considered, however, as a bill to settle accounts of a dissolved 
 corporation and of its successor, a quasi joint stock company resulting 
 from a continuance of the business in the same way after dissolution, 
 there was no substantial error in overruling the demurrer. Affirmed.] 
 
 Note. See note to 246. 
 
 Sec. 246. Non-user, insolvency and surrender. 
 SLEE v. BLOOM AND OTHERS. 1 
 
 1821. IN COURT OF CHANCERY. 1822. IN THE COURT OF ER- 
 RORS, NEW YORK. 5 Johns. Ch. (N. Y.) Rep. 366-388, 19 
 Johns. (N. Y.) 456-486, 10 Am. Dec. 273. 
 
 [Bill in equity by Slee against Bloom et al., filed in 1819. It 
 showed that Slee had been the owner of a cotton mill in New York, 
 and in order to provide additional funds he, in 1814, induced Bloom 
 and others to unite with him in the formation of a corporation for the 
 purpose of purchasing and operating the mill. The corporation was 
 formed under the New York Act of 1811, with a capital stock of 
 $60,000. After organization Slee proposed to sell the mill for $30,- 
 900, which was accepted, and 172 shares of $100 each, full paid, 
 were issued to him in part payment, leaving $13,700 yet due. From 
 time to time calls were made upon the other shares to the extent of 
 50 per cent, but only a small part was paid. In December, 1815, in 
 order to carry on the business, $10,000 were borrowed, upon the 
 individual note of Slee, due in one year, indorsed as surety by Bloom 
 and the other directors. In order to protect them Slee executed to 
 them a penal bond in the sum of $20,000, with power to confess 
 judgment against him, which they did in June, 1816. In October, 1816, 
 it was determined to discontinue business, and Slee, as superintend- 
 ent, was directed to wind up the affairs and dispose of the company's 
 property, and upon the report of a committee appointed for that pur- 
 pose it was found that the company then owed Slee $23,493 (includ- 
 ing the note), and for security executed its penal bond, with power 
 
 1 Only parts of opinions of Chancellor Kent and Spencer, Ch. J., are given. 
 Arguments are omitted. 
 56 WIL. CASES.
 
 882 SLEE V. BLOOM AND OTHERS. 246 
 
 to take judgment against the company for $46,986. In May, 1817, 
 Slee took judgment upon this, with stay till October, 1817. In 
 August, 1817, it was resolved, with the assent of Slee, that all share- 
 holders who paid up the 50 per cent, of subscriptions called for 
 should be exempt from further liability. But few paid, and in Novem- 
 ber, 1817, against the protest of Slee, it was resolved that those who 
 paid 30 per cent, of their stock should be entirely relieved. Most of 
 the delinquents did this and wholly abandoned the corporation. No 
 shareholders and no directors' meetings were held after May and De- 
 cember, 1817, respectively. Slee being unable to pay the note when 
 due Bloom and others paid it, and in October, 1817, issued execution 
 against Slee, whereby his land to value of $9,000, and his interest in 
 the corporate property, became liable to sale. In order to save him- 
 self he took out execution against the company, allowed $4,105 re- 
 ceived upon calls to be paid to Bloom and the rest, and procured one 
 E. to become surety for the balance due on the note, by assigning to 
 E. his property and the avails of his execution against the company, 
 whereupon Bloom et al. gave up the note and were discharged from 
 liability upon it. The sale of the corporate property under execution 
 February i, 1818, netted only $460, leaving (after crediting the 
 $4,105 as payment) over $18,000 yet due, which Slee alleged he had 
 no way of obtaining unless the stockholders should be compelled to pay 
 their subscriptions. The statute provided "that for all debts which 
 shall be due and owing to the company at the time of dissolution, the 
 persons then composing the company shall be individually responsible 
 to the extent of their respective shares of stock in said company and 
 no further." 
 
 Most of the material facts were admitted by Bloom et al., and the 
 chancellor dismissed the bill and appeal was taken. Part of the chan- 
 cellor's opinion (5 Johns. Ch. 377 et seq.) is as follows] : 
 
 KENT, C. * * * The first and leading question in the case is 
 whether the corporation is dissolved, so as to enable the plaintiff to 
 call upon the individual members. It will not be disputed that with- 
 out such a provision in the statute the individuals would not be re- 
 sponsible in their private property, either before or after the dissolu- 
 tion of the company for corporate debts. The facts from which an 
 actual dissolution is inferred are, that the stockholders have not 
 elected trustees since April, 1817, and that the trustees have not met 
 as a body since the 3ist of December. 1817, and that all the cor- 
 porate property, real and personal, was sold on an execution issued 
 in the name and at the instance of the plaintiff on the ist of February, 
 1818, and that the members have since abandoned all attention to the 
 institution. * * * 
 
 The omission to elect new trustees in 1818 and 1819 did not, of 
 itself, work a dissolution according to the opinion of the supreme 
 court in the case of the People v. Runkle (9 Johns. Rep. 147), and 
 by the authority of the cases there referred to, a corporate election 
 after the year would be good, upon general principles of law, if an 
 integral part of the corporation remained, and the officers already in
 
 246 METHODS OF DISSOLUTION. 883 
 
 would continue to be good officers after the year, and until others 
 were elected. * * * 
 
 The members of the corporation, who are the integral part of it, 
 are in esse, and I see no difficulty in a future meeting of the last 
 elected trustees, and in a new election of trustees to be ordered and 
 prescribed. * * * 
 
 A corporation aggregate may be dissolved within the period pre- 
 scribed by its charter in certain modes and upon ce/tain events, none 
 of which have occurred in this case. It may be dissolved if it be- 
 come incapable of continuing its corporate succession or executing 
 its corporate functions, as by the death of all its members or the de- 
 struction of an integral part of it, or it may be dissolved by surrender 
 of its franchises into the hands of the government, or by forfeiture of 
 its charter through abuse or neglect of its franchises. The last is the 
 alleged ground of forfeiture in this case; but I apprehend that the 
 forfeiture in such case must be judicially ascertained and declared, and 
 that the power, which may have been abused or abandoned, can not 
 be taken away but by regular process. The judgment in such cases 
 is, that the parties be ousted or that the liberty be seized into the 
 hands of the government. (Rex v. Stevenson, Yelv. 190.) This 
 subject underwent great and learned discussion in the case of the 
 King v. Amery, in the K. B. (2 Term Rep. 515), and it was decided 
 by that court as the result of the investigation, that a corporation may 
 be dissolved and its franchises lost by non-user or neglect; but it was 
 assumed as an undeniable proposition that the default was to be judi- 
 cially determined in a suit instituted for the purpose. * * * 
 
 Assuming the charges in the bill in this case to be true, Lord 
 Kenyon points out the proper remedy : It is by the judicial process 
 of scire facias ; and I believe that there is no instance of calling in 
 question the rights of a corporation as a body, for the purpose of de- 
 claring its franchises forfeited and lost, but at the instance and on be- 
 half of the government. * * * 
 
 (Citing Rex v. Passmore, 3 T. R. 199 ; Commw. v. Union Ins. Co., 
 5 Mass. 230; Atty. -General v. Utica Ins. Co., 2 Johns. Ch. 389.) 
 
 I conclude, therefore, that the corporation is still subsisting in judg- 
 ment of law, and that this court is not authorized from anything that 
 appears in the case to consider the corporation dissolved. It follows, 
 then, that the bill against individual members for a corporate debt 
 can not be sustained. * * * 
 
 SPENCER, CH. J. (In Court of Errors, 19 Johns. *473). With the 
 most profound and undissembled respect for the Chancellor, I am 
 constrained to differ from the opinion held by him that this corpora- 
 tion is not dissolved. 
 
 The object and intention of the legislature in authorizing the asso- 
 ciation of individuals for manufacturing purposes was, in effect, to 
 facilitate the formation of partnerships without the risks ordinarily at- 
 tending them, and to encourage internal manufactures. There is 
 nothing of an exclusive nature in the statute ; but the benefits from as- 
 sociating and becoming incorporated, for the purposes held out in the
 
 884 SLEE V. BLOOM AND OTHERS. 246 
 
 act, are offered to all who will conform to its requisitions. There are 
 no franchises or privileges which are not common to the whole com- 
 munity. In this respect, incorporations under the statute differ from 
 corporations to whom some exclusive or peculiar privileges are 
 granted. The only advantages of an incorporation under the statute 
 over partnerships, and the only substantial difference between them, 
 consists in a capacity to manage the affairs of the institution by a few 
 and select agents, and by an exoneration from "any responsibility 
 beyond the amount of the individual subscriptions. 
 
 In coming to the conclusion that the corporation in this case is 
 dissolved, I lay out of the case everything of misuser, or' non-user, 
 excepting the influence which the fact of non-user may have as evi- 
 dence, connected with other facts, to show the renunciation of the 
 corporate rights. Upon the authorities, and for the reasons given by 
 the chancellor, misuser or non-user can not be relied on as a substan- 
 tive and specific ground of a dissolution. The ground on which I 
 place my opinion, that the corporation is dissolved, is, that they have 
 done, and suffered to be done, acts equivalent to a direct surrender. 
 The chancellor concedes, and it does not, in my judgment, admit of 
 a doubt, that a corporation may be dissolved by a surrender of all 
 their corporate rights. 
 
 In 2 Kyd on Corp. 467 the rational and true rule is laid down. He 
 says, "the rule adopted in all the cases which have occurred on this 
 question seems to have been this, that where the effect of the sur- 
 render is to destroy the end for which the corporation, or the corpo- 
 rate capacity, was instituted, the corporation, or the corporate capac- 
 ity, is itself destroyed;" and we have the high authority of Lord 
 Coke to the same effect. He says, if there be a warden of a chapel, 
 and the chapel and all the possessions be aliened, he ceases to be a 
 corporation, because he can not be warden of nothing; but if the 
 body of a prebend be a manor and no more, and the manor be re- 
 covered from the prebendary, by title paramount, yet his corporate 
 capacity remains, because he has stallum in ckoro, et vocem in capitulo, 
 and he is prebendary, although he has no possessions. Thus, accord- 
 ing to Lord Coke, a recovery by title paramount would have produced 
 an extinction of the corporation, had it reached all the rights and 
 powers of the corporation, but inasmuch as there were rights un- 
 affected by the recovery, it did not work a dissolution. Suffering an 
 act to be done which destroys the end and object for which the corpo- 
 ration was instituted, must be regarded as equivalent to the doing an 
 act which produces the very same consequences. A surrender is an 
 act in pats; it can, therefore, be no objection, in this case, that the 
 acts which have dissolved the corporation are acts in pats. 
 
 This bill was not filed until the 24th of April, 1819. In February, 
 1818, all the estate, real and personal, of the corporation was sold 
 under an execution; and, as has already been stated, the corporation 
 has totally ceased from acting since December, 1817. The bill 
 charges, substantially, that the corporation is dissolved, and not one 
 of the respondents asserts that it does exist, or that there is the re-
 
 246 METHODS OF DISSOLUTION. 885 
 
 motest idea of resuscitating it. Here is, then, a corporation pos- 
 sessed of nothing, abandoning the end and object of their institution, 
 without pretending that they ever hope or expect to resume their 
 functions; and, it may be added, all the corporators either admit the 
 dissolution of the corporation (I speak of those who have suffered 
 the bill to be taken pro confessd), or deny that they are corporators, 
 thus presenting the phenomenon of a corporation without corpora- 
 tors, a nominal, inert body, pretending to have life and existence. 
 Such an anomaly can not be recognized. The argument is, that 
 being incorporated for twenty years, there exists a corporate capacity 
 during that period, and that although all the functions of the corpora- 
 tion have ceased, yet tl>ey may be resumed. The second section of 
 the act provides that as soon as the certificate shall be filed, the persons 
 who shall have signed and acknowledged the same, and their succes- 
 sors, shall, for the term of twenty years next after, be a body politic 
 and corporate, in fact and in name, etc. The legislature never 
 meant, nor does the act authorize the conclusion, that the corporation 
 should remain and continue during all that period nolens volens. It 
 was implied that during that time they should do nothing to forfeit 
 their rights, nor surrender them back, or do any act tantamount 
 thereto. The act prolongs the corporation for twenty years, subject 
 to all the incidents attending corporations; and I have endeavored to 
 show that one of the incidents is an extinction of the corporation if 
 it does what is equivalent to a surrender. I doubt, extremely, 
 whether the capacity to resume the functions of the corporation does, 
 in fact, exist, but it is not necessary to decide that point. I consider 
 it merely as a matter of speculation, thrown out, without any practi- 
 cal reference to the cause, as a stumbling block to the attainment of 
 justice between the parties. For all the substantial purposes of jus- 
 tice, and in effect, the corporation is dissolved. * * * 
 
 In point of good sense this corporation was dissolved within the 
 meaning and intent of the act as regards creditors, when it ceased to 
 own any property, real or personal, and when it ceased for such a 
 space of time from doing any one act manifesting an intention to re- 
 sume their corporate functions. The end, being and design of the 
 corporation were completely determined, and even if it had the capac- 
 ity to reorganize and reinvigorate itself, the case has happened, when, 
 as relates to its creditors, it is dissolved. 
 
 If I am right thus far, then by ,the seventh section of the statute, 
 the persons composing the company at the time of its dissolution are 
 individually responsible to the extent of their respective shares for the 
 debts then due and owing by the company. 
 
 With, respect to the period of the dissolution, it appears to me that 
 we may safely say it happened on the ist of February, 1818, when 
 all the property of the company was sold, for since that time no cor- 
 porate act has been done. * * * 
 
 (Held also that Slee assenting to discharge of members upon pay- 
 ment of 50 per cent, of stock was bound by it, but that he was not 
 Reversed.
 
 886 SLEE V. BLOOM AND OTHERS. 246 
 
 bound by the resolution releasing shareholders upon payment of 30 
 per cent.) 
 
 As to insolvency, see, also, 1857, Coburn v. Manufacturing Co., 10 Gray 
 (Mass.) 243; 1887, Dewey v. St. Albans, etc., Co., 60 Vt. 1, 6 Am. St. R. 84; 
 1888 Jones v. Bank of Leadville, 10 Colo. 464, 20 Am. & Eng. C.C. 554; 1889, 
 Rouse v. Merchants' Bank, 46 Obio St. 493, 15 Am. St. Rep. 644; 1893, Sabin 
 v. Columbia Fuel Co.. 25 Ore. 15. 42 Am. St. 756; 1893 Larrabee v. Franklin 
 Bank, 114 Mo. 592, 35 Am. St. Rep. 774. 
 
 Note. Surrender. 
 
 1. A corporation may voluntarily surrender its franchises. 1822, Slee v. 
 Bloom, 19 Johns. (N. Y.) 456, 10 Am. Dec. 273, supra; 1832, Chesapeake 
 & O. Canal Co. v. Bal. & O. R., 4 Gill & J. (Md.) 1; 1834, Boston Glass 
 Mfy. v. Langdon, 24 Pick. (Mass.) 49, 35 Am. Dec. 292, supra, p. 866; 
 1839, Penobscot Boom Corp. v. Lamson, 16 Maine (4 Shep.) 224, 33 Am. Dec. 
 656; 1839, Mclntire Poor School v. Zanesville, etc., Co., 9 Ohio 203, 34 Am. 
 Dec. 436; 1858, Lauman v. Leb. V. R,, 30 Pa. St. 42, 72 Am. Dec. 685; 1859, 
 Attorney-General v. Clergy Soc., 10 Rich. Eq. (S. C.) 604; 1869, People v. Cal- 
 ifornia College, 38 Cal. 166; 1870, Houston v. Jefferson College, 63 Pa. St. 
 428; 1871, Moore v. Whitcomb, 48 Mo. 543; 1892, Cronin v. Potters' Co-op. 
 Co., 29 Wkly. L. B. (Ohio) 52. 
 
 2. Acceptance by the state (through the legislature) is necessary in order 
 to complete dissolution. In 2 Kyd Corporations, 447, it is said the king may 
 accept a surrender of charters granted by himself, but not one granted by 
 parliament. 1828, Enfield Toll B. Co. v. Conn. R. Co., 7 Conn. 28, 45; 1834, 
 Boston Glass Mfy. v. Langdon, 24 Pick. (Mass.) 49, 35 Am. Dec. 292, supra, p. 
 866; 1834, Revere v. Boston Copper Co., 15 Pick. (Mass.) 351 ; 1836, Harris v. 
 Muskingum Mfg. Co., 4 Blackf. (Ind.) 267, 29 Am. Dec. 372; 1845. Greeley v. 
 Smith, 3 Story 657; 1847, Town v. River Raisin Bank, 2 Doug. (Mich.) 530; 
 1851, Norris v. Mayor, etc., 1 Swan (31 Tenn.) 164; 1861, McMahan v. Morri- 
 son, 16 Ind. 172, 79 Am. Dec. 418; 1861, Curien v. Santini, 16 La. Ann. 27; 
 1870, Wilson v. Central Br. Co., 9 R. I. 590; 1870, LaGrange, etc., R. Co., 7 
 Colw. (Tenn.) 420, 437 ; 1895, Combes v. Keyes, 89 Wis. 297, 46 Am. St. Rep. 
 839; 1896, The Attorney-General v. Superior, etc., R. Co., 93 Wis. 604. See, 
 contra, Merchants' and Planters' Line v. Waganer, 71 Ala. 581, supra, p. 880, 
 and eases therein stated. A statutory method of voluntary dissolution under 
 a general law giving the state's consent when certain formalities are complied 
 with, is quite usually provided by the states. 
 
 3. As to the right of the majority to surrender the charter and dissolve the 
 corporation, there seems to be considerable conflict. The question is closely 
 allied to the right of a majority to dispose of the assets of the corporation, 
 and the following cases, or many of them, are upon this point. 
 
 a. In the case of a solvent, going, private business corporation the major- 
 ity can not, against the wishes of the minority, dispose of the assets and dis- 
 solve the corporation: 1813, Smith v. Smith, 3 Des. Eq. (S. C. ) 557; 1844, 
 Ward v. Soc. of Attys., 1 Coll. 370; 1857, 'Mobile & O. R. v. State, 29 Ala. 
 573, 586; 1861, Curien v. Santini, 16 La. Ann. 27; 1861, Abbott v. Am. Hard 
 Rubber Co., 33 Barb. (N. Y.) 578; 1867, Zabriskie v. Hackensack, etc., R , 
 18 N. J.Eq. 178, 90 Am. Dec. 617; 1868, Clinch v. Financial Corp., L. R. 5 
 Eq. Gas. 450; 1872, Bird v. Bird's, etc., Co., L. R. 9 Ch. App. 358; 1873, 
 Black v. Del. & R. Canal Co., 9 C. E. Green (24 N. J. Eq.) 455; 1876, Buford v. 
 Keokuk N. L. Co., 3 Mo. App. 159; 1882, Bergman v. St. Paul, etc., M. B. 
 Assn., 29 Minn. 275; 1883, Balliet v. Brown, 103 Pa. St. 546; 1887, Barton 
 v. The Enterprise Loan, etc., Co., 114 Ind. 226; 1889, In re Sovereign Life 
 Assurance Co., 42 Ch. D. 540, 61 L. T. R. 455; 1890, Rothwell v. Robinson, 
 44 Minn. 538; 1892, Chicago, etc., Cab. Co. v. Yerkes, 141 111. 320, 33 Am. St. 
 Rep. 315: 1892, People v. Ballard, 134 N. Y. 269; 1895, By-ne v. Schuyler 
 Elec. Mfg. Co., 65 Conn. 336; 1896, McCutcheon v. Merz Capsule Co., 37 U. 
 S. App. 586; 1897,Pringle v. Eltringham Constr. Co., 49 La. Ann. 301, 6 A.& 
 E. C. C. (N. S.) 385; 1898, Forrester v. Boston M. M. Co., 21 Mont. 544. 55 
 Pac. Rep. 229.
 
 247 METHODS OF DISSOLUTION. 887 
 
 b. But the majority may dispose of the assets of a corporation, surrender 
 its charter and dissolve the corporation, even against the wishes of a minor- 
 ity, when the corporation is in failing circumstances, unable to go on and ac- 
 complish its ends, in the absence of unfairness, oppression or fraud: 1847, 
 Sargeant v. Webster, 13 Mete. (Mass.) 497, 46 Am. Dec. 743; 1850, Hodges v. 
 New Eng. Screw Co., 1 R. I. 312, 53 Am. Dec. H24; 1856. Treadwell v. Salis- 
 bury Mfg. Co. ,7 Gray 'Mass.) 393, 66 Am. Dec. 490; 1862, Bank of Switzer- 
 land v. Bank, 5 L. T. (N. S.) 549 ; 1870, Wilson v. Proprietors, etc., 9 R. 1. 590 ; 
 1881, Hancock v. Holbrook, 9 Fed. Rep. 353; 1883, Sheldon Hat Co. v. Eick- 
 meyer, etc., Co., 56 How. Pr. (N. Y.) 70; 1886, Ervin v. Oregon R. & Nav. 
 Co., 27 Fed. Rep. 625; 1886, Hutchinson v. Green, 91 Mo. 371 ; 1888, Berry 
 v. Broach, 65 Miss. 450; 1888, Botts v. Simpsonville Tp. Co., 88 Ky. 54; 1889, 
 Mason v. Pewabic Min. Co., 133 U. S. 50; 1889, Sawyer v. Dubuque, etc., Co., 
 77 Iowa 242; 1890, Hayden v. Official Hotel, etc., Co., 42 Fed. Rep. 875; 1891, 
 Trisconi v. Winship, 43 La. Ann. 45; 1892, Skinner v. Smith, 134 N. Y. 240; 
 1893, Price v. Holcomb, 89 Iowa 123; 1893, Sewell v. East Cape May, etc., 
 Co., 50 N. J. Eq. 717; 1896, Elyton Land Co. v. Dowdell, 113 Ala. 177; 1897, 
 Peabody v. Westerly W. W., 20 R. I. 176, 37 Atl. Rep. 807; 1899, Phillips v. 
 Prov. Steam, etc., Co., 21 R. I. 302, 45 L. R. A. 560. 
 
 Sec. 247. Repeal. 
 
 See, infra, The State and Corporation, 453-73. Also see Pro- 
 prietors of Piscataqua Bridge v. New Hampshire, 7 N. H. 35, supra, 
 p. 309; Flint & F., P. R. Co. v. Woodhull, 25 Mich. 99, supra, p. 
 398; Commonwealth v. Cullen, 13 Pa. St. 133, supra, p. 417; 
 Dartmouth College v. Woodward, 4 Wheat. 518, supra, p. 708; 
 Hawthorne v. Calef, 2 Wall. 10, supra, p. 752; Tomlinson v. Jes- 
 sup, 15 Wall. 454, supra, p. 754; Ireland v. Palestine Turn. Co., 19 
 Ohio St. 369, supra, p. 757 ; Mormon Church (Romney) v. United 
 States, 136 U. S. i, infra, p. 906. 
 
 Sec. 248. Forfeiture. 
 
 See, infra, The State and Corporation, 410-18. Also see 
 King v. Mayor of London, i Show. 280, supra, p. 152; People v. 
 N. R. Sug. R. Co., supra, p. 100; Higgins v. Downward, 8 Houst. 
 (Del.) 227, supra, p. 152; State v. Standard Life Assn., 38 Ohio 
 St. 281, supra, p. 234; State v. Curtis, 35 Conn. 374, supra, p. 259; 
 State Bank v. The State, i Blackf. (Ind.) 267, infra, p. 891. 
 
 Sec. 249. Ownership of stock by one member. 
 
 LOUISVILLE BANKING COMPANY v. EISENMAN. 1 
 
 1894. IN THE COURT OF APPEALS OF KENTUCKY. 94 Ky. Rep. 
 83-96, 42 Am. St. Rep. 335, 19 L. R. A. 684, with note. 
 
 [Suit by the bank to hold J. C. Eisenman personally liable upon 
 an acceptance for the accommodation of Mattingly & Sons of drafts 
 to the amount of $20,000, drawn by them upon the corporation of 
 Eisenman Bros. & Co., and accepted by it, after J. C. Eisenman had 
 become the sole owner of the stock of the corporation. The failure 
 
 'Statement much abridged. Arguments and part of opinion omitted.
 
 888 LOUISVILLE BANKING COMPANY V. EISENMAN. 249 
 
 of Mattingly & Sons to meet the drafts rendered Eisenman Bros. & 
 Co. insolvent. The bank knew the circumstances under which the 
 drafts were accepted. The statute provided "any number of persons 
 may associate themselves together, and become incorporated," etc. 
 The bank contended that the sole ownership of stock dissolved the 
 corporation, and rendered the sole owner individually liable. The 
 lower court held otherwise.] 
 
 PRYOR, J. * * * The purpose of the statute was_to enable two or 
 more persons possessed of capital or skill to associate themselves in 
 business, and to limit their liability as against the improvident acts of 
 each other, or the act of the corporation, in the event of pecuniary loss 
 in the legitimate and proper conduct of its business. It invites the in- 
 vestment of the capital stock of one to be placed in the same business 
 with the skill of another, or a combination of capital that encourages 
 trade, the burden of which mere individual enterprise would be unwill- 
 ing to assume, and it could not have been the legislative intent that any 
 one man could form a corporation of which he is the creature and sole 
 stockholder, so as to limit his liability for the debts contracted, and 
 from which he has derived the benefit, to the extent only of what he 
 might designate his corporate estate. He owns the entire property 
 belonging to the corporation it is his. He can sell or dispose of it 
 as he pleases ; borrow money, acquire property, in the name of the 
 corporation, for the sole purpose of exempting him from any respon- 
 sibility, other than that belonging to the corporation ; and however 
 reckless or improvident he may be, he has all to gain and nothing to 
 lose. He could make a gift of the entire corporate estate, dispense 
 with all corporate forms, and to say, when exercising such unlimited 
 control, he is not personally responsible for every debt he contracts, 
 would be to pervert the plain purpose of the statute. 
 
 There is no such being in this state as a sole corporation, and cer- 
 tainly none such allowed to be created by the statute. 
 
 This corporation, however, was properly organized, had its several 
 stockholders and board of directors and was prospering in its busi- 
 ness until these drafts were drawn for the benefit of Mattingly & 
 Sons. * * * 
 
 That both the appellant and appellee were acting on the belief that 
 the corporation was alone liable is beyond dispute, and the corpora- 
 tion, as it was called, the appellee being the sole owner of the stock, 
 submitted to the judgment against it for the drafts in an action by 
 the bank, and the appellee is making no resistance to its payment out 
 of the property of the corporation, but insists that no personal liability 
 exists. The appellant has obtained all he contracted for. There 
 was no fraud practiced upon it by the appellee, and certainly no 
 intention to bind himself personally, nor any of the proceeds of these 
 drafts applied to his benefit in any manner or to the benefit of what 
 he supposed was an existing corporation. If the stock had been held 
 as it was originally the pecuniary condition of the corporation would 
 have been the same, as no act had been done by the appellee by which 
 the interest of creditors or those dealing with the corporation would have
 
 249 METHODS OF DISSOLUTION. 889 
 
 been prejudiced. Nor are we prepared to adjudge, after a corpora- 
 tion has been created by the statute, with the stock distributed among 
 several stockholders, that the purchase by one stockholder of all the 
 stock destroys the corporate existence and places all the property of 
 the corporation upon the same footing with the other estate of the in- 
 dividual stockholder. The legal title to the estate of the corporation 
 is still vested in it, and while the stockholder's interest could be sub- 
 jected to the payment even of his individual debt, when he contracts 
 in behalf of the corporation, and with no fraudulent intent, it seems 
 to us the party with whom he contracts gets all he bargains for when 
 he subjects the corporate property to the payment of his debt. (Cit- 
 ing and commenting upon Swift v. Smith, 65 Md. 428.) * * * 
 
 In the case before us there was no surrender of the franchise, but 
 the business conducted in good faith and under the belief that the cor- 
 porate estate was alone liable. The corporation still lived and had 
 such vitality as enabled the holder of the stock to transfer it and pro- 
 ceed with the corporate powers as if he had never become the sole 
 owner; and the argument that such a construction as to the meaning 
 of the statute would enable two or more to organize a corporation 
 with a view of vesting the entire stock in one of the corporators is 
 not available, for the reason that the corporate property in the hands 
 of one stockholder, when made liable by him for his corporate or 
 individual debts, remains so, although he may transfer the stock to 
 others, as they must take it subject to the incumbrances the sole stock- 
 holder has placed upon it prior to his sale of the stock. (Citing and 
 commenting upon Button v. Hoffman, 61 Wis. 20; Wilde v. Jenk- 
 ins, 4 Paige 481 ; Winona, etc., R. Co. v. St. Paul, etc., R. Co., 23 
 Minn. 359; Cook on Stock, 631 ; Morawetz, p. 635.) * * * 
 
 While we recognize the general rule on the subject sustained by 
 the authorities referred to, it must be held that the purchase by one 
 of all the shares in a corporation created under the statute is a disso- 
 lution of the corporation to the extent that it suspends the exercise of 
 the rights under the franchise until the owner transfers the stock in 
 good faith, so as to maintain an organization under the statute. There 
 is a difference between the attempt to create one person a corporation 
 under this statute, and the purchase in good faith of all the stock after 
 the corporation has been created. In the first instance there is no cor- 
 poration, and in the last there is a franchise, the operations of which 
 are suspended until the stock may be transferred to others ; and while 
 in the hands of one person the corporate and individual property are 
 ordinarily alike liable for the payment of any debt contracted by the 
 owner, and subsequent purchasers of stock take it subject to the liens 
 or equities of the creditors of the sole owner created prior to the trans- 
 fer of the stock to them. * * * 
 
 Affirmed. 
 
 Note. One-man companies. 
 
 1. It seems that where a statute provides that "any number of persons" 
 may form a corporation, the courts will hold that more than one person is 
 meant. Louisville Banking Co. v. Eisenman, 94 Ky. 83, 42 Am. St. Rep. 335, 
 supra, p. 887; Montgomery v. Forbes, 148 Mass. 249, supra, p. 694. Yet the
 
 890 LOUISVILLE BANKING COMPANY V. EISENMAN. 249 
 
 English case of Salomon v. Salomon, 1897, App. Gas. 22, 66 L. J. Ch. 35, holds 
 that the court can not go back of the record, when regular, to inquire into the 
 motive of those forming the corporation. The Iowa Code of 1897, title ix, 
 ch. 1, 1608, provides that, "Except as otherwise provided by law, a single 
 person may incorporate under the provisions of this chapter, thereby entitl- 
 ing himself to all the privileges and immunities herein, but if he adopts the 
 name of an individual or individuals as that of the corporation, he must add 
 thereto the word 'incorporated' (Code 1873, 1088; Code 1888, 1638)." 
 So far as I am aware this is the only state that permits this. Since the fore- 
 going chapter provides for stock corporations as well as others, it is submit- 
 ted that if a stock corporation is created by one man it would not be a corpo- 
 ration sole. See note, supra, p. 200; but if not a stock corporation, whether 
 or not a corporation sole- quaere? 
 
 2. By the great weight of authority, if a stock corporation is once validly 
 created, the fact that one person, or fewer persons than may lawfully incor- 
 porate, acquire in good faith all the stock, the corporation still exists, and 
 has the title and control of all its property, and the individual acts of the sole 
 or other owners of stock do not bind the corporation. 1811, Smith v. Smith, 
 3 Desaus. (S. C.) *557, *582; 1819, Williamson v. Smoot, 7 Martin (La.) 31. 
 supra, p. 70; 1833, Russell v. McLellan, 14 Pick. (Mass.) 63; 1833, Spencer 
 v. Champion, 9 Conn. 536; 1834, Wade v. Jenkins, 4 Paige Ch. (N. Y.) 481 ; 
 1839, Penobscot Boom Corp. v. Lamson, 16 Maine 224, supra, p. 283 ; 1843, 
 Wheelock v. Moulton, 15 Vt. 519 (deed by all the shareholders is not the 
 deed of the corporation); 1846, Queen v. Arnaud, 25 L. J. (16 IS'. S.) 
 Q. B. 50, supra, p. 58; 1850, Evarts v. Killingworth Mfg. Co., 20 Conn. 447, 
 458; 1856, Bohannon v. Binns, 31 Miss. 355; 1858, Lillard v. Porter, 2 Head 
 (Tenn.) 176; 1860, Frost v. Frostburg Constr. Co., 24 How. (U. S.) 278, 283; 
 1871, Newton Mfg. Co. v. White, 42 Ga. 148; 1877, Winona & St. P. R. Co. v. 
 St. Paul & S. R. Co., 23 Minn. 359; 1879, Balwin v. Canfield, 26 Minn. 43; 
 1880, Keith v. Clarke, 4 Lea (Tenn.) 718; 1884, Button v. Hoffman, 61 Wis. 
 20, 50 Am. Rep. 131 ; 1884, Mathis v. Morgan, 72 Ga. 517, 525; 1886, England 
 v. Dearborn, 141 Mass. 590; 1890, Fitzhugh v. Mo. Pac. R. Co., 45 Fed. Rep. 
 812; 1890, Humphreys v. McKissock, 140 U. S. 304, 312; 1893, Gallagher v. 
 Germania Brewing Co., 53 Minn. 214; 1893, Foster & Son v. Comm'rs of In- 
 land Rev., L. R. (1894) 1 Q. B. 516, supra, p. 60; 1895, Matter of Belton, 
 47 La. Ann. 1615; 1896, Parker v. Bethel Hotel Co., 96 Tenn. 252; 1897, 
 Harrington v. Connor, 51 Neb. 214; 1897, Salomon v. Salomon, App. Gas. 22, 
 66 L. J. Ch.35; 1898, Louisville, etc., Co. v. Kaufman, 20 Ky. L. Rep. 1069, 48 
 S. W. Rep. 434; 1898, First Nat'l Bank v. Winchester, 119 Ala. 168, 72 Am. St. 
 Rep. 904; 1899, Chase v. Mich. Tel. Co., 121 Mich. 631, 11 Am. & E. C. C. (N. 
 S.) 715; 1899, In re Hirth, 1 Q. B. 612, 68 L. J. Q. B. 287; 1898, Durlacher v. 
 Frazer, 8 Wyo. 58, 80 Am. St. Rep. 918, 55 Pac. 306. But it has been 
 held in Maryland, that the ownership of stock by one person virtually sus- 
 pends the corporate existence during such sole ownership. 1831, Bellona 
 Cos. Case, 3 Bland. Ch. (Md.) 442, 446; 1886, Swift v. Smith, 65 Md. 428, 57 
 Am. Rep. 336; 1898, First Nat'l Bank v. Winchester, 119 Ala. 168, 72 Am. St. 
 Rep. 904. 
 
 3. But in equity, or incase of fraud, or evasion of corporate duties, the 
 acts of all the shareholders as individuals will be treated as the acts of the 
 corporation, if necessary to work out justice. 1882, Bundv v. Ophir Iron Co., 
 38 Ohio St. 300; 1890. People v. North Riv. S. Ref. Co., 121 N. Y. 582, 18 Am. 
 St. Rep. 843, supra, p. 100;1892, State v. Standard Oil Co., 49 Ohio St. 137; 
 1898, First Nat'l Bank v. Winchester, 119 Ala. 168, 72 Am. St. Rep. 904. 
 See also, supra, the corporation as a collection of persons, sees. 16-21, and 
 note, p. 109, et seq.
 
 250 EFFECT OF DISSOLUTION. 89! 
 
 ARTICLE II. EFFECT OK DISSOLUTION. 
 
 Sec. 250. Lands, chattels and debts at common law. 
 STATE BANK v. THE STATE. 1 
 
 1823. IN THE SUPREME COURT OF INDIANA, i Blackf. (Ind.) Rep. 
 267-285, 12 Am. Dec. 234. 
 
 [^o -warranto against the bank for numerous violations of its char- 
 ter. The defendant pleaded not guilty to all the charges. On the trial 
 in the lower court the jury found them guilty of nine of the charges. 
 A motion in arrest of judgment was made and overruled, and judg- 
 ment given that the privileges, liberties and franchises be seized into 
 the custody of the state, together with all the goods, chattels, rights, 
 credit's and effects of every kind. Various errors were assigned, two 
 of which were: i, that the charges did not justify a forfeiture, and 
 2, the judgment of seizure of the fi'anchises and property violated the 
 constitution of the state, providing that no man's property should be 
 taken for a public use without the consent of his representatives, etc.] 
 
 HOLMAN, J. * * * That a corporation mav forfeit its charter 
 for misusing or abusing its franchises is a doctrine that can not now 
 be disputed. See i Bl. Comm., 485; 2 Kyd Cor., 474, and the cases 
 there cited. For there is an implied condition annexed to each par- 
 ticular grant, which, if violated, forfeits the whole franchise. 2 Bac., 
 31. Inasmuch as it is the duty of corporations to act up to the end 
 or design for which they were created (i Bl. Comm., 480) so when 
 they pursue such measures as wholly frustrate this design the reason 
 of their existence ceases, and it is but just that their existence should 
 also be terminated. Whether every slight deviation from the inten- 
 tion of the charter should occasion a forfeiture is not the question, but 
 when the grand, leading conditions and restrictions in the charter have 
 been violated there can be no question but the franchises are thereby 
 forfeited. Several of the charges found by the jury against this cor- 
 poration are of this nature, and show that they have evidently abused 
 their most important privileges to the manifest injury of others and of 
 the community in general. (Considering the charges in detail.) * * ' 
 
 But if it be contended that such a private property exists in the in- 
 dividual shareholders as will be destroyed if the franchises of the 
 corporation be seized, and, inasmuch as the private property is guar- 
 anteed by the constitution, that the constitution must also of necessity 
 guaranty the continued existence of those franchises or otherwise this 
 property will be annihilated, we shall find that this doctrine is not 
 warranted by the constitution. The privilege of holding stock in this 
 bank is inseparably connected with its existence as a corporation, and 
 inasmuch as we have seen that the existence of the corporation de- 
 pends on the implied condition that it will not violate its charter, so 
 this privilege of holding stock in this bank must depend for its contin- 
 uance on the same implied condition. The president and directors of 
 the corporation become the agents of the stockholder, and if they vio- 
 
 1 Statement much abridged, and much of opinion omitted.
 
 892 STATE BANK V. THE STATE. 250 
 
 late the conditions on which he enjoys this privilege, his privilege is 
 immediately subjected to forfeiture by this act of his agents. Nor 
 will the regard which the constitution has for private property secure 
 such property from annihilation by a dissolution of the corporation. 
 So that we see nothing in the constitution to prevent the seizure of 
 those franchises, let the effect upon private property be what it may. 
 And there can be no doubt but that this judgment, so far as it author- 
 izes a seizure of the franchises into the hands and custody of the state, 
 is warranted by law. When it appears that the liberty has been once 
 granted, and is forfeited by misuser or non-user, the judgment shall be 
 that it be seized into the king's hands. Year Book 15 Ed. 4, cited in 
 2 Kyd Corp., 407. And such appears to be the law at present. * * * 
 There are but two grounds on which it can be contended that the 
 corporate effects fall into the hands of the state: i. As a forfeiture 
 for abusing the franchises ; or 2. For the want of an owner by the 
 dissolution of the corporation. When we examine the first of these 
 grounds we find nothing in the books to support an idea that the abuse 
 of corporate franchises occasions forfeiture of lands or goods, rights 
 or credits, or, in fact, occasions any other forfeiture but the franchises 
 themselves. The consequence of a breach of the implied condition 
 on which their liberties were granted was not that they should forfeit 
 their property or possessions if they abused their franchises, but only 
 that they should forfeit their franchises. That which comes out of 
 the hands of the king is the proper subject of forfeiture ; the king, by 
 the seizure, resuming what originally flowed from his bounty. Au- 
 thorities leading to this conclusion are numerous. See the cases cited 
 in 2 Bac., 32, and in The King v. Amery, 2 T. R. 515. Forthe for- 
 feiture is the same for non-user when no property has been held or 
 rights exercised, as for misuser or abuser after the possession of much 
 property and the exercise of extensive rights and credits ; and the 
 judgment is the same in both cases. Consequently, the judgment 
 could not direct a seizure of the corporate possessions as a forfeiture 
 for the violation of the charter. Nor is the 'second ground that the 
 property falls to the state for the want of an owner, on the dissolution 
 of the corporation more tenable as a foundation on which to sustain 
 this judgment. For the ownership of the corporation does not cease 
 until its dissolution. And whether it is dissolved by the judgment 
 of seizure or not, until the state has execution on that judgment, is 
 not here very material. For if the corporation is dissolved by the 
 judgment, the judgment must be regularly entered, and have its full 
 effect before the dissolution takes place, and it is not till then that the 
 property can be said to be without an owner. The loss of the prop- 
 erty to the corporation is a consequence of the judgment, and it is a 
 contradiction of the first principles of reason a complete reversal of 
 effect and cause to make such loss of property a part of the judg- 
 ment. That which can not exist until after the judgment, can never 
 be the subject-matter on which the judgment is given. But the better 
 opinion seems to me, that the corporation is not dissolved by the judg- 
 ment of oeizure, but that it exists until the franchises are seized by
 
 2$0 EFFECT OF DISSOLUTION. 893 
 
 execution on that judgment. See Kyd Corp., 409, 410, and the au- 
 thorities there cited. Consequently, the last shadow of a support for 
 this judgment on this ground must vanish. 
 
 We have thus far examined the judgment which directs a seizure of 
 the goods and chattels, rights and credits, lands and tenements of the 
 corporation, on the assumed position that they will necessarily fall to 
 the state on the dissolution of the corporation. We shall now inquire 
 into the correctness of this position. In order to elucidate the subject 
 we shall examine it in detail, and in the first place inquire what be- 
 comes of the lands and tenements ; secondly, what becomes of the goods 
 and chattels, and thirdly, what becomes of the rights and credits of 
 the corporation? and we shall find that each of these three items is 
 governed by different principles. 
 
 First. As to the lands and tenements: "When a corporation is dis- 
 solved," says Sir Wm. Blackstone, "the lands and tenements revert 
 to the person or his heirs who granted them to the corporation ; for 
 the law doth annex a condition to every such grant, that if the cor- 
 poration be dissolved the grantor shall have the lands again. The 
 grant is only during the life of the corporation, which may endure 
 forever, but when that life is determined by the dissolution of the body 
 politic, the grantor takes it back by reversion, as in the case of every 
 other grant for life." i Bl. Comm., 484. This is the doctrine ad- 
 vanced by Lord Coke, Co. Litt. 13^. See, also, 2 Kyd Cor., 516; 2 
 Bac.,32; 2 Cruise, 493; Colchester v. Seaber, 3 Burr. 1866. We see 
 but little in the books that contradicts or questions those authorities, 
 and the cases that look a different way maintain that the lands would 
 escheat. 2 Bac. 32. If either of those principles be coirect we feel 
 warranted in determining that the corporate lands and tenements can 
 not be seized into the hands of the state, and certainly not in the 
 manner contemplated by this judgment. 
 
 Secondly. As to the goods and chattels: On this subject the books 
 are almost silent. ""In the argument of Colchester v. Seaber, it is said 
 by Sir Fletcher Norton, on the authority of i Ro. Ab. 816, that the 
 goods and chattels go to the crown. An English writer, who has col- 
 lected together most of the cases on corporations, concludes his re- 
 marks on the effect of a dissolution in these words: "What becomes 
 of the personal estate is, perhaps, not decided ; but probably it vests 
 in the crown." 2 Kyd on Corp., 516. We do not feel under the 
 necessity of resolving any doubts which may rest on this subject ; for 
 if the law were conclusive, that the goods and chattels in this case 
 would vest in the state on the dissolution of the corporation, yet we 
 have already seen that this would not be as a forfeiture, but because 
 they are without an owner, and that the claim of the state could not 
 exist until after judgment ; consequently, it is impossible to include 
 them in the terms of the judgment. 
 
 Thirdly. As to the rights and credits of the corporation: These, as 
 applying to the debts, etc., due to the corporation, are supposed to be 
 of considerable amount, and have formed a principal feature in every 
 view of this case. But the importance of the case, arising from the
 
 894 STATE BANK V. THE STATE. 250 
 
 amount in controversy, can not affect the principles by which it is 
 governed ; and when those principles are fixed they must be declared, 
 let the consequence to individuals or the community be what it mav. 
 That the debts are necessarily lost to the corporation naturally fol- 
 lows from the principles we have examined. For when dissolved 
 they have no existence, and can have no claim to, nor control over, 
 anything whatever. They not only die, but leave no representative 
 behind them. This, in every respect, is the case with aggregate cor- 
 porations. Sole corporations depend, in this respect, upon principles 
 somewhat different; but with them we have now no concern. But 
 although the debts fall out of the lifeless hands of the corporation at 
 the same time with their real and personal estate, yet when thus out 
 of their hands, they are very different in their natures from the real 
 and personal estate. 
 
 Lands and goods have a necessary existence, although they may be 
 without an owner in being or in expectancy. They continue in being 
 and may be made the subject of possession by occupancy. But this 
 is not the case with respect to debts. They have no necessary exist- 
 ence, and are so conclusively personal that they can not exist without 
 an obligor and obligee in being or in expectancy. And on the death 
 of the obligor or obligee, without the possibility of a representative, 
 the obligation ceases. Such appears to be the case on the dissolu- 
 tion of a corporation aggregate. Blackstone says: "The debts 
 of a corporation, either to or from it, are totally extinguished by 
 its dissolution, so that the members thereof can not recover or be 
 charged with them, in their natural capacities, i Bl. Comm., 484; 
 2 Kyd Corp., 516, uses the same language. 2 Bac., 32, advances 
 nearly the same doctrine, on the authority of Lev., 237; Owen, 73, 
 and 2 And., 107. And this doctrine is either directly or indirectly 
 supported in a variety of cases. See the before-mentioned case of 
 Colchester v. Seaber ; also Rex v. Pasmore, 3 T. R. 199 ; The Mayor, 
 etc., of Scarborough v. Butler, 2 Lev. 237; 4 Com. Dig., 273. If this 
 doctrine be connect, and we find it uncontradicted, the seizure of the 
 rights and credits of the corporation is impossible in the nature of 
 things, because their existence ceases as the claim of the state com- 
 mences. But even if they could be seized into the hands of the state 
 they would be unavailing. The debts due to the corporation could 
 not, on any common law principle, be collected by the state or its 
 agent, there being no privity of contract, either in fact or law, between 
 the state and debtor to the corporation. * * * 
 
 Thus, in no view of the case, can that part of the judgment which 
 directs a seizure, into the hands of the state, of the goods and chat- 
 tels, rights, credits and effects, lands, tenements and hereditaments of 
 the corporation, be supported. 
 
 Affirmed as to seizure of franchises but reversed as to seizure of 
 property. 
 
 Note. See following cases and note, infra, p. 910.
 
 251 EFFECT OF DISSOLUTION. 895 
 
 Sec. 251. Contracts of shareholders. 
 
 FOSTER v. ESSEX BANK. 1 
 
 1820. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 16 
 Mass. Rep. 245-274. 
 
 [Assumpsit against the bank for $50,000, begun April term 1819. 
 At the trial term it was suggested the bank's charter had expired. By 
 the act creating it, it was to exist for twenty years from July i, 1799. 
 By an act of June 19, 1819, all such corporations were "continued 
 bodies corporate and politic, for the term of three years from and 
 after the day on which their powers would expire," for the purpose 
 of prosecuting and defending suits, now or hereafter instituted, and to 
 settle their concerns, and divide their capital stock, but not for con- 
 tinuing business. It was contended that this statute impaired the 
 obligation of the shareholders' contracts.] 
 
 PARKER, C. J. * * * In the first place, we see no pretense for say- 
 ing that it impairs the force of contracts. Certainly it has not that 
 effect on contracts made by or with the bank; but the very object of 
 the statute is to enforce such contracts. 
 
 It is said, however, that the contract with the government was that at 
 the end of twenty years the corporation should be dissolved, and each 
 member take his share out of the common fund. But it should be 
 considered that, by the original charter, each member's share was 
 liable for all the debts of the bank, and that he would have no moral 
 right to withdraw it until all the debts of the bank were paid ; so 
 that there was an equitable lien upon his share ; and the legislature, 
 we think, had a right, if it was not their duty, to provide the means 
 of enforcing this moral obligation. 
 
 The law complained of is a general law operating upon all bodies 
 corporate, and it is convenient for them and the public that their 
 power of suing and being sued should be continued beyond the period 
 within which they are empowered to make contracts, m order that 
 their concerns may be properly adjusted. 
 
 Nor do we think it an objection that this additional term should be 
 granted by an act made subsequent to the time when their charter was 
 granted. A debtor to the bank could not object to a suit on the ground 
 that the original term of the charter had expired, for the very bringing 
 of the suit would be an acceptance of the prolongation of the charter, 
 and it would be absurd for him to say that his debt was discharged, 
 or that there were no means of recovering it because he contracted 
 with the corporation on a supposition that it would continue in being 
 only a certain number of years. We think it equally incompetent for 
 such corporation to deny, its existence against a statute of the govern- 
 ment, the object of which is to give a right of action on contracts upon 
 which they were legally and morally bound under their charter. 
 
 It is said that the members of such a corporation associated upon 
 
 1 Statement abridged. Much of the opinion, and the elaborate arguments 
 of Saltonstall, Pickering and Webster, omitted.
 
 896 MUMMA V. THE POTOMAC COMPANY. 2 52 
 
 the faith that after the time limited in their charter they might sepa- 
 rate and take their shares of the stock. But it is to be answered that 
 their stock is, in an equitable view, pledged for the payment of all 
 debts due from the corporation, and that it would be fraudulent to 
 withdraw the funds, knowing that there were debts to be paid, leav- 
 ing no means of coercing the payment of those debts. What should 
 be said of a banking company which just before its expiration should 
 divide all the stock, making no provision for the payment of its debts? 
 Yet this might be done if the legislature have no authority to estab- 
 lish by law a mode by which it should be compelled to fulfill its obli- 
 gations. For it is certainly doubtful whether any means exist, under 
 our laws, of pursuing the funds into the hands of individual corpora- 
 tors and subjecting them to the claims of creditors. We see no vio- 
 lation of the rights of the corporators, no impairing of the obligation 
 of contracts, for it can never be the right of any person to withhold a 
 just debt from his creditor. * * * 
 
 (The suggestion filed can not impede the progress of the suit.) 
 
 Note. See following cases, and note, infra, p. 910. 
 
 t 252. Contracts of creditors. 
 
 MUMMA v. THE POTOMAC COMPANY. 1 
 
 1834. IN THE SUPREME COURT OF THE UNITED STATES. 8 Pe- 
 ters (33 U. S.) Rep. *28i-;. 
 
 [Mumma, in 1818, obtained a judgment in the circuit court of the 
 District of Columbia against the Potomac Company for $5,000. No at- 
 tempt was made to enforce it till April 18, 1828, when a scire facias 
 was issued to revive the judgment ; this revivor case was continued 
 till 1830, when the facts were agreed to be that after the rendition of 
 the judgment in question and in accordance with a provision of the 
 laws of -Virginia, Maryland and the United States incorporating the 
 Chesapeake and Ohio Canal Company, so authorizing, the Potomac 
 Company had surrendered all its property, rights and privileges by deed 
 of August 15, 1828, to and the same had been accepted by the Chesa- 
 peake and Ohio Canal Company, whereby the charter of the Potomac 
 Company was vacated and annulled, and its powers vested in the canal 
 company. It was contended, secondly, that the deed of surrender 
 and the acts of the legislature were void as impairing the obligation 
 of contracts. The lower court gave judgment for the defendant.] 
 
 STORY, J. * * * Unless, then, the second point can be main- 
 tained, there is an end of the cause, for there is no pretense to say 
 that a scire facias can be maintained, and a judgment had thereon, 
 against a dead corporation any more than against a dead man. We 
 are of opinion that the dissolution of the corporation, under the acts 
 of Virginia and Maryland (even supposing the act of confirmation of 
 congress out of the way), can not, in any just sense, be considered, 
 
 1 Statement abridged, only part of opinion given.
 
 253 EFFECT OF DISSOLUTION. 897 
 
 within the clause of the constitution of the United States on this sub- 
 ject, an impairing of the obligation of the contracts of the company by 
 those states, any more than the death of a private person can be said 
 to impair the obligation of his contracts. The obligation of those con- 
 tracts survives, and the creditors may enforce their claims against any 
 property belonging to the corporation which has not passed into the 
 hands of bona fide purchasers, but is still held in trust for the com- 
 pany, or for the stockholders thereof, at the time of its dissolution, in 
 any mode permitted by the local laws. Besides, the twelfth section 
 of the act incorporating the Chesapeake and Ohio Canal Company 
 makes it the duty of the president and directors of that company, so 
 long as there shall be and remain any creditor of the Potomac Com- 
 pany who shall not have vested his demand against the same in the 
 stock of the Chesapeake and Ohio Canal Company (which the act ena- 
 bles him to do), to pay to such creditor or creditors, annually, such div- 
 idend or proportion of the net amount of the revenues of the Potomac 
 Company, on an average of the last five years preceding the organi- 
 zation of the said Chesapeake and Ohio Canal Company, as the de- 
 mand of the said creditor or creditors at that time may bear to the 
 whole debt of $175,800 (the supposed aggregate amount of the debts 
 of the Potomac Company). So that here is provided an equitable 
 mode of distributing the assets of the company among its creditors, by 
 an apportionment of its revenues in the only mode in which it could 
 be practically done upon its dissolution ; -a mode analogous to the dis- 
 tribution of the assets of a deceased insolvent debtor. 
 
 Independent of this view of the matter, it would be extremely 
 difficult to maintain the doctrine contended for by the plaintiff in 
 error, upon general principles. A corporation, by the very terms 
 and nature of its political existence, is subject to dissolution, by a sur- 
 render of its corporate franchises, and by a forfeiture of them for will- 
 ful misuser and non-user. Every creditor must be presumed to under- 
 stand the nature and incidents of such a body politic, and to contract 
 with reference to them. And it would be a doctrine new in the law, 
 that the existence of a private contract of the corporation should force 
 upon it a perpetuity of existence, contrary to public policy, and the 
 nature and objects of its charter. * * * 
 
 Affirmed. 
 
 See following cases, and note, infra, p. -910. 
 
 Sec. 253. Executory contracts. 
 GRIFFITH ET AL. v. BLACKWATER BOOM AND LUMBER CO^ 
 
 1899. I N THE SUPREME COURT OF WEST VIRGINIA. . 46 W. Va. 
 56, 33 S. E. Rep. 125-128. 
 
 [In a suit by creditors against the lumber company to settle up its 
 affairs there were three contested claims in favor of one Thompson, 
 
 1 Statement abridged ; only part of the opinion given. 
 57 WIL. CASES.
 
 898 GRIFFITH V. BLACK WATER BOOM AND LUMBER CO. 253 
 
 for over $i 15,000. One of these, for over $98,000, was adjudged not 
 to be a preferred claim, but if of any validity at all, to be such as to 
 share only pro rata with other claims. This claim arose out of a con- 
 tract called the stocking contract, whereby Thompson was to cut, 
 saw and deliver all its timber at the mill at a certain price. Before 
 any part of this contract was carried out the company's affairs were 
 placed in the hands of a receiver by consent of all parties interested. 
 Thompson claimed damages for the breach of this contract, and over 
 $98,000 was found to be the proper amount, if he was entitled to any- 
 thing. He claimed also that under a statute making claims for work 
 and labor preferred claims, the damages for a breach of contract for 
 work and labor would have the same preference. The lower court 
 decreed that this was not a preferred claim, but allowed it to be a 
 valid claim. Other creditors appealed.] 
 
 DENT, P. * * * The last report of the receiver shows that, if 
 the three contested claims of Albert Thompson are allowed, the assets 
 of the company will greatly fall short of the liabilities; but, if such 
 claims are disallowed, there will be in the neighborhood of $30,000 
 to be distributed among the stockholders. So these amounts are of 
 very grave importance to the stockholders, Albert Thompson, and the 
 other creditors, the most important of which is his right to recover 
 the alleged profits of his abrogated contract by way of damages, ascer- 
 tained by the final decree to amount to $98,661.56, as of the 24th 
 day of November, 1896. These damages are claimed by reason of 
 an alleged breach of its contract by the company. This, however, is 
 a legal impossibility, for the reason that, at the time the alleged 
 breach occurred, the company had ceased to exist save only in name, 
 and its bones were already bleaching on the plains of corporate exist- 
 ence amid millions of their kind. By force of law, it had been com- 
 pelled to surrender its franchises into the hands of a receiver on ac- 
 count of its inability to further carry on its business, without great 
 threatened loss to its creditors and stockholders, and it was afterwards 
 finally dissolved by the disposal of all its property, to all which Albert 
 Thompson was present and gave his assent, with certain reservations 
 in his own interest. Where an insolvent corporation is forced into 
 liquidation and dissolution all its executory contracts perish with it, 
 for this is an implied condition of their execution. , 
 
 In 7 Am. & Eng. Ency. Law (2 ed.), 116, the law is stated to be: 
 "When performance of a contract is dependent upon the continued 
 existence of a given perron or thing, and such continued existence was 
 assumed as the basis of the agreement, the death of the person or the 
 destruction of the thing puts an end to the obligation." The con- 
 tinued existence of the corporation was assumed as the basis of the 
 contract with Albert Thompson, and its involuntary dissolution put 
 an end to performance on its part, and the contract ceased to be bind- 
 ing, as there was no one left to perform it according to its terms. 
 People v. Globe Mat. Life Ins. Co., 91 N. Y. 174; i Am. & Eng. 
 Corp. Cas. 586, note 594. Such, however, is not the law where a 
 solvent corporation is voluntarily dissolved. By its own act it can not
 
 254 EFFECT OF DISSOLUTION. 899 
 
 relieve itself from its contracts, but its assets will be held liable for 
 breaches thereof. It must be taken as an implied condition of all such 
 contracts that such corporation will not voluntarily try to escape or 
 evade fulfillment, and if it does, equity will not recognize its dissolu- 
 tion nor permit the distribution of its assets until its contracts are sat- 
 isfied. Glass Co. v. Stoehr, 54 Ohio St. 157, 43 N. E. Rep. 279; 
 Schleider v. Dielman. 44 La. Ann. 462, 10 South. 934. The appellee, 
 Thompson, claims that the dissolution of the corporation was volun- 
 tary, for the reason that the officers assented thereto. They assented 
 because its business had assumed such a condition that it could not be 
 continued without great loss to its creditors and stockholders. And to 
 this the appellee, Thompson, also assented. Hence its dissolution 
 was not voluntary, but was brought about by the force of circum- 
 stances, and the final determination of its affairs shows that it was not 
 solvent. * * * 
 
 A receiver is not bound to carry out executory contracts of the cor- 
 poration, but he may disregard them. Beach Rec., 328. The 
 power to adopt or reject the defendant's contract, to accept those 
 which are of advantage to the trust estate, and reject the burdensome 
 ones, is restricted to the receiver. The rule is not reciprocal, hence 
 it is called "anomalous." Section cited: 
 
 "The court, however, may order the receiver to complete unfin- 
 ised contracts, if by so doing the interests of all parties will be better 
 conserved, and in such case whatever is done by the receiver in the 
 performance of such contracts becomes an obligation upon the receiv- 
 ership and its property, to be protected by the court." Smith Rec., 
 pp. 102, 103, 35. The receiver in this case did adopt, under the 
 instruction of the court, and partly carry out the stocking contract; 
 but finally the court, reaching the conclusion, with the assent of all 
 parties, except Albert Thompson, determined to, and did, abandon 
 the stocking contract and direct a sale of the properly. This the 
 court had the legal and equitable power to do. It thereby determined 
 that the carrying out of the contract would be injurious to those in 
 interest. After this action on the part of the court, the corporation, 
 the receiver or Albert Thompson would be in contempt even in seek- 
 ing to carry out the same. * * * 
 
 Decree below reversed. 
 
 Note. See following cases and note, infra, p. 910. 
 
 Sec. 254. Generally upon rights and liabilities in equity, 
 BACON ET AL. v. ROBERTSON. 1 
 
 1855. IN THE SUPREME COURT OF THE UNITED STATES. 18 How. 
 (59 U. S.) Rep. 480-489. 
 
 [Appeal from United States circuit court for the southern district of 
 Mississippi. In 1843 the legislature of Mississippi directed that ac- 
 
 1 Statement abridged, and much of opinion omitted.
 
 900 BACON ET AL. V. ROBERTSON. 2 54 
 
 tions in quo ivarranto be instituted against all banking corporations 
 in the state that had so violated their charters as to incur their forfeit- 
 ure, and provided that trustees should be appointed by the court de- 
 claring a forfeiture, whose duty it should be to collect the assets, and 
 after paying the debts distribute the surplus, if any, ratably among 
 the stockholders. The charter of the Commercial Bank of Natchez, 
 after due proceedings, was declared forfeited, and Robertson ap- 
 pointed trustee to pay debts and make distribution. After all debts 
 were paid he refused to distribute the $4,000,000 surplus. Bacon 
 and the other shareholders brought their bill in equity to obtain their 
 shares. Upon demurrer the circuit court dismissed the bill and plaint- 
 iffs appealed.] 
 
 CAMPBELL, J. * * * To comprehend the import of this legis- 
 lation we must consider the mischiefs it was ^designed to prevent or 
 remove, and the mode adopted to accomplish the end, for the legisla- 
 tion is of a character wholly remedial. The common law of Great 
 Britain was deficient in supplying the instrumentalities for a speedy 
 and just settlement of the affairs of an insolvent corporation whose 
 charter had been forfeited by a judicial sentence. The opinion usu- 
 ally expressed as to the effect of such a sentence was unsatisfactory 
 and questioned. There had been instances in Great Britain of the 
 dissolution of public or ecclesiastical corporations by the exertion of 
 the public authority, or as a conseqnence of the death of their mem- 
 bers, and parliament and the courts had affirmed in these instances 
 that the endowments they had received from the prince or pious found- 
 ers would revert in such a. case. Stat. de Terris Templariorum, 17 
 Edw. II; Dean and Canons of Windsor, Godb. 211; Johnson v. 
 Norway, Winch. 37; Owen, 73; 6 Vin. Abr., 280. What was to be- 
 come of their personal estate and of their debts and credits had not 
 been settled in any adjudged case, and as was said by Pollexfen in the 
 argument of the quo ivarranto against the city of London was pei'- 
 haps ''-non definitur injure." * * * 
 
 It may be admitted that the courts of law could not give any relief 
 to the shareholders of a corporation disfranchised by a judicial sen- 
 tence in respect to a corporate right. Their modes of proceeding do 
 not provide for the case, as they have not for many others, i Plow, 
 276, 277; Richards v. Richards, 2 B. & Adol. 447; Will. Ex., 1129. 
 But this concession does not involve an acknowledgment that the 
 rights of the corporations are extinguished. Courts of chancery have 
 been forced into a closer contact with these associations, and have 
 formed a more rational conception of their constitution and a more 
 accurate estimate of their importance to the industrial relations of 
 society. Those courts have evinced a spirit of accommodation of 
 their modes of proceeding so as to adapt them to the changing exi- 
 gencies of society. (Citing and quoting as illustrating this doctrine, 
 Lord Cottenham in Wallworth v. Holt, 4 M. & C. 635, Sir James 
 Wigram, V. C., in Foss v. Harbottle, 2 Hare 491 ; Bank of U. S. v. 
 Deveaux, 5 Cr. 61 ; Lennox v. Roberts, 2 Wheat. 373; Mumma v. 
 Potomac Co., 8 Pet. 281 ; Curran v. Arkansas, 15 How. 304.) * *
 
 254 EFFECT OF DISSOLUTION. 90 1 
 
 The tendency of the discussions and judgments of the court of chan- 
 cery in Great Britain, and of the courts of this country, is to concede 
 the existence of a distinct and positive right of property in the indi- 
 viduals composing the corporation in its capital and business, which 
 is subject in the main to the management and control of the corpora- 
 tion itself, but that cases may arise where the corporators may assert 
 not only their own rights but the rights of the corporate body. And 
 no reason can be given why the dissolution of a corporation, whether 
 by judicial sentence or otherwise, whose capital was contributed by 
 shareholders for a lawful and perhaps laudable enterprise, with the 
 consent of the legislature, should suspend the operation of these prin- 
 ciples, or hinder the effective interference of the court of chancery for 
 the preservation of individual rights of property in such a case. The 
 withdrawal of the charter that is, the right to use the corporate name 
 for the purposes of suits before the ordinary tribunals is such a sub- 
 stantial impediment to the prosecution of the rights of the parties 
 interested, whether creditors or debtors, as would authorize equitable 
 interposition in their behalf within the doctrine of chancery prece- 
 dents. Staintonv. The Carron Company, 23 L. and E. 315; Travis 
 v. Milne, 9 Hare 141 ; Travis v. Milne, 2 Hare 491. For the sen- 
 tence of forfeiture does not attain the rights of property of the corpo- 
 rators or corporation, for then the state would appropriate it. If those 
 rights are put an end to, it would seem to be rather from a careless 
 disregard, or hardened and reckless indifference to consequences on 
 the part of the public authority, than from any preconceived plan or 
 purpose. For, according to the doctrine of the text-writers on this 
 subject, the consequences are visited without any discrimination ; the 
 losses are imposed upon those who are not blameworthy, and the ben- 
 efits are accumulated upon those who are without desert. 
 
 The effects of a dissolution of a corporation are usually described 
 to be, the reversion of the lands to those who had granted them ; the 
 extinguishment of the debts, either to or from the corporate body, so 
 that they are not a charge nor a benefit to the members. The in- 
 stances which support the dictum in reference to the lands consist of 
 the statutes and judgments which followed the suppression of the mil- 
 itary and religious orders of knights, and whose lands returned to 
 those who had granted them, and did not fall to the king as an 
 escheat; or of cases of dissolution of monasteries and other ecclesias- 
 tical foundations, upon the death of all their members, or of donations 
 to public bodies, such as a mayor and commonalty. But such cases 
 afford no analogy to that before us. The acquisitions of real prop- 
 erty by a trading corporation are commonly made upon a bargain and 
 sale, for a full consideration, and without conditions in the deed ; and 
 no conditions are implied in law in reference to such conveyances. 
 The vendor has no interest in the appropriation of the property to 
 any specific object, nor any reversion, where the succession fails. If 
 the statement of the consequences of a dissolution upon the debts and 
 credits of the corporation is literally taken, there can be no objection 
 to it. The members can not recover nor be charged with them, in
 
 902 BACON ET AL. V. ROBERTSON. 254 
 
 their natural capacities, in a court of law. But this does not solve 
 the difficulty. 
 
 The question is, has the bona fide and just creditor of a corpora- 
 tion, dissolved under a judicial sentence for a breach in its charter, 
 any claim upon the corporate property for the satisfaction of his debt, 
 apart from the reservation in the act of the legislature which directed 
 the prosecution? Can the lands be resumed in disregard of their 
 rights by vendors, who have received a full payment of their price, 
 and executed an absolute conveyance? Can the careless, improvi- 
 dent or faithless debtor plead the extinction of his debt or of the cred- 
 itor's claim, and thus receive protection in his delinquency? The 
 creditor is blameless he has not participated in the corporate mis- 
 management, nor procured the judicial sentence; he has trusted upon 
 visible property acquired by the corporation in virtue of its legisla- 
 tive sanction. How can the vendors of the lands or the delinquent 
 debtors resist the might of his equity? But, if the claims of the cred- 
 itor are irresistible those of the stockholder are not inferior, at least 
 against the parties who claim to hold the corporate property. The 
 money, evidences of debts, lands and personalty acquired by the 
 corporation were purchased with the capital they lawfully contributed 
 to a legitimate enterprise conducted under the legislative authority. 
 The enterprise has failed under circumstances, it may well be, which 
 entitled the state to withdraw its special support and encouragement, 
 but the state does not affirm that any cause for the confiscation of the 
 property, or for the infliction of a heavier penalty, has arisen. It is a 
 case, therefore, in which courts of chancery, upon their well-settled 
 principles, would aid the parties to realize the property belonging to 
 the corporation, and compel its application to the satisfaction of the 
 demands which legitimately rest upon it. 
 
 In our view of the equitv of this bill we have the support and sanc- 
 tion of th'e legislature of Mississippi. Their legislation excludes all 
 the consequences which have been imputed as necessary to a sentence 
 of dissolution on a civil corporation. From the plentitude of their 
 powers for the amelioration of the condition of the body politic, and 
 the supply of defects in their system of remedial laws, they have 
 afforded a plan for the liquidation and settlement of the business of 
 these corporations in which the equities of the creditors and share- 
 holders respectively are recognized as attaching to all the corporate 
 property of whatever description. And the inquiry arises, who is 
 authorized to obstruct the enforcement of these equities in so far as 
 the stockholders of the Commercial Bank of Natchez are concerned? 
 The -creditors have been satisfied. The defendant in the present suit 
 is the trustee appointed under these legislative enactments. His de- 
 murrer confesses that he has received money, stocks, evidences of 
 debt, lands, and personal property, which he refuses to distribute. 
 He claims that the stockholders have no rights since the dissolution of 
 the corporation, and if any, they must be looked for in the circuit 
 court of Adams county, Mississippi. But the trustee can not deny 
 the title of the stockholders to a distribution. To collect and distrib-
 
 I 
 
 255 EFFECT OF DISSOLUTION. 903 
 
 ute the property of the corporation among the creditors and stock- 
 holders is his commission for this end he was placed in the posses- 
 sion of the property, and was armed with all the powers he has exer- 
 cised. 
 
 His title is in subordination to theirs, and his duties are to maintain 
 their rights and to consult their advantage. Pearson v. Lindley, 2 
 Ju. 758; 3 Pet., 43; 4 Bligh i; Willis Trus., 125, 172, 173. He is 
 estopped from making the defense of a want of title in the stockhold- 
 ers. * * * Reversed. 
 
 Note. See following cases, and note, infra, p. 910. 
 
 Sec. 255. Reversion of land. 
 
 WILSON v. LEARY. 1 
 
 1897. IN THE SUPREME COURT OF NORTH CAROLINA. 120 N. 
 C. Rep. 90-94, 58 Am. St. Rep. 778. 
 
 [Action to recover land. In 1849, plaintiff's ancestor conveyed the 
 land in fee to an Odd Fellows Lodge, which was incorporated the 
 following year and duly chartered by the grand lodge. This lodge 
 took and held possession till 1872, when it ceased to exist, and was 
 never revived. Under the direction of the Grand Lodge the land 
 was sold in 1873 to the defendants. Suit was brought in 1892, by 
 the heirs of the original grantor, claiming a reverter upon the extinc- 
 tion of the subordinate lodge; and the lower court so found.] 
 
 CI.ARK, J. * * * The plaintiff's counsel insist, however, that at 
 the time of the conveyance the Revised Statutes (ch. 26, sec. 17) pro- 
 vided that a corporation, unless otherwise specially stated in its charter, 
 had existence for only thirty years, and as there was no special pro- 
 vision in this charter, the grantor only parted with the property for 
 thirty years and held a resulting trust. But the conveyance was in fee, 
 and a corporation limited in duration can take a fee-simple convey- 
 ance just as a natural being, whose existence is also limited. Either 
 may convey away the property, and upon the death of either, without 
 having disposed of it, the property will go to pay creditors, to heirs, 
 to stockholders, or as an escheat, according to the circumstances, but 
 in neither case is there any reverter to the grantors. On the death of 
 a corporation the property is usually administered by a receiver, and 
 on the death of a natural person, by the personal representative, or 
 passes to the heirs. 
 
 It is true it was held in an opinion by Gaston, J. (Fox v. Horah, 
 36 N. C. 358), that by the common law, upon the dissolution of a cor- 
 poration by the expiration of its charter or otherwise, its real property 
 reverted to the grantor, its personal property escheated to the state, 
 and its choses in action became extinct, and hence that on the expira- 
 tion of the charter of a bank a court of equity would enjoin the collec- 
 tion of notes made payable to the bank or its cashier, the debtor be-, 
 
 1 Statement abridged, and part of opinion omitted.
 
 904 T1TCOMB V. KENNEBUNK MUT. F. INSURANCE CO. 256 
 
 ing absolved by the dissolution. Judge Thompson (5 Thomp. Corp., 
 6720) refers to this decision "in accordance with the barbarous rule 
 of the common law" as "probably the last case of its kind," and 
 notes that it has since been in effect overruled in Von Glahn v. De 
 Rossett, 8 1 N. C. 467, and it is now expressly overruled by us. 
 Chancellor Kent (2 Comm., 307, note) says "this rule of the common 
 law has, in fact, become obsolete and odious," and elsewhere he 
 stoutly denied that it had ever been the rule of the common law, ex- 
 cept as to a restricted class of corporations (5 Thompson, supra, 
 6730). The subject is thoroughly discussed by Gray on Perpetui- 
 ties, 4451, and he demonstrates that my Lord Coke's doctrine 
 rested on the dictum of a fifteenth century judge (Mr. Justice Choke, 
 in the Prior of Spalding's Case, 7 Edward IV, 1467), and is contrary 
 to the only case deciding the point, Johnson v. Norway, Winch. 
 37 (1622), though Coke's statement has often been referred to as 
 law. But whatever the extent of this rule at the common law, if it 
 was the rule at all, it was not founded upon justice and reason, nor 
 could it be approved by experience, and has been repudiated by 
 modern courts. The modern doctrine is, as held by us, that "upon 
 a dissolution the title to real property does not revert to the original 
 grantors or their heirs, and the personal property does not escheat 
 to the state." Thompson, supra, 6746; Owen v. Smith, 31 Barb. 
 641 ; Towar v. Hale, 46 Barb. 361. The crude conceptions of 
 corporations naturally entertained in a feudal and semi-barbarous 
 age, when they were few in number and insignificant in value and 
 functions, by even so able a man as Sir Edward Coke, and the fanci- 
 ful reason given by him (Coke Lit., 136) for the reverter of their real 
 estate, to wit, that a conveyance to them must necessarily be a quali- 
 fied or base fee, have long since become outworn and discredited. 
 That which is termed "the common law" is simply the "right reason 
 of the thing" in matters as to which there is no statutory enactment. 
 When it is misconceived and wrongly declared, the common rule 
 is equally subject to be overruled, whether it is an ancient or a recent 
 decision. Upon the facts agreed judgment should be entered below 
 against the plaintiffs, dismissing their action. 
 Reversed. 
 
 See following cases and note, infra, p. 910. 
 
 Sec. 256. Reversion of property of mutual company. 
 
 TITCOMB v. KENNEBUNK MUT. F. INSURANCE CO. 
 
 1887. IN THE SUPREME JUDICIAL COURT OF MAINE. 79 Maine 
 
 Re P- 3i 
 
 WALTON, J. The Kennebunk Mutual Fire Insurance Company 
 was incorporated in 1856. It has issued no policies since 1877. 
 In 1884, its last policy having expired, the company voted to close
 
 256 EFFECT OF DISSOLUTION. 905 
 
 up its affairs and to do no more business. A decree has been ob- 
 tained at nisi prius dissolving the corporation, from which no appeal 
 has been taken or claimed ; and the only question before the law 
 court is to determine what shall be done with the assets of the com- 
 pany. Our statutes contain ample provisions for the disposition of 
 
 the assets of stock companies. R. S., , c. 46, 25, 26, 27 and 
 
 54. But this is a mutual company and has no stockholders, and the 
 provisions cited do not apply. According to the old settled law of 
 the land, says Chancellor Kent, upon the civil death of a corporation, 
 when there is no special statute to the contrary, all its real estate re- 
 verts to the grantors and their heirs, and all its personal estate vests 
 in the people. 2 Kent. (loth ed.), 385, 386. To the same effect is 
 Angell and Ames on Corp., c. 22, 6 (2d ed.). ' 
 
 But it is said that in this class of cases the corporators named in the 
 act of incorporation should be regarded as stockholders. They are 
 not stockholders, and to hold that they are would be a fiction, and 
 fictions are not favored, and are never resorted to except to work out 
 some strong and inherent equity, and there is no such equity in favor 
 of the corporators of a mutual insurance company. They contribute 
 nothing towards its assets, and we think it would be against public 
 policy to allow them to have a pecuniary interest in them. Such an in- 
 terest would inevitably tend to create a temptation to fix the rates of 
 insurance higher than would be necessary to meet losses, and then, 
 when a surplus had been thus obtained, to divide it among themselves 
 and thus reap a profit from business in which they had invested no 
 capital and had taken no risks, and this at the expense of the policy- 
 holders. We think there is a much stronger equity in favor of the 
 former policy-holders, whose money has contributed to produce the 
 assets. But we do not think they can be regarded as stockholders 
 after their policies have expired and their premium notes have been 
 canceled or given up to them. They have then received in full the 
 benefits for which they contracted and are no longer members of the 
 company, and to distribute among them a small amount of assets, and 
 to determine what each former policy-holder's share ought in equity 
 to be, would be attended with difficulties and an amount of labor 
 which the end would not justify. When a man dies leaving no wife 
 or kindred his property descends to the state. And when a corpo- 
 ration which, like a mutual insurance company, has no stockholders, 
 ceases to exist, we are not prepared to say that the rule of the com- 
 mon law, which gives its surplus assets to the state, is not a wise one. 
 * * * (Ordered that balance after paying debts, costs, etc., be 
 paid to the state treasurer for the use of the state.) 
 
 Note. See, 1899, Cummings v. Hollis (Ga.), 33 S. E: 919; 1883, Mason v. 
 Fire Co., 70 Ga. 604. Also next case, and note, infra, p. 910.
 
 906 MORMON CHURCH V. UNITED STATES. 257 
 
 Sec. 257. Reversion of property, charitable corporation. 
 
 MORMON CHURCH v. UNITED STATES. 1 
 ROMNEY v. UNITED STATES. 
 
 1890. IN THE SUPREME COURT OF THE UNITED STATES. 136 
 
 U. S. Rep. 1-67. 
 
 BRADLEY, J. The principal questions raised are, first, as to the 
 power of congress to repeal the charter of the Church of Jesus Christ 
 of Latter-Day Saints ; and, secondly, as to the power of congress and 
 the courts to seize the property of said corporation and to hold the 
 same for the purposes mentioned in the decree. 
 
 The power of congress over the territories of the United States is 
 general and plenary, arising from and incidental to the right to acquire 
 the territory itself, and from the power given by the constitution to 
 make all needful rules and regulations respecting the territory or other 
 property belonging to the United States. It would be absurd to hold 
 that the United States has power to acquire territory, and no power 
 to govern it when acquired. The power to acquire territory, other 
 than the territory northwest of the Ohio river (which belonged to the 
 United States at the adoption of the constitution), is derived from the 
 treaty-making power and the power to declare and carry on war. 
 The incidents of these powers are those of national sovereignty, and 
 belong to all independent governments. The power to make acqui- 
 sitions of territory by conquest, by treaty and by cession is an incident 
 of national sovereignty. The territory of Louisiana, when acquired 
 from France, and the territories west of the Rocky mountains, when 
 acquired from Mexico, became the absolute property and domain of 
 the United States, subject to such conditions as the government, in its 
 diplomatic negotiations, had seen fit to accept relating to the rights of 
 the people then inhabiting those territories. Having rightfully ac- 
 quired said territories, the United States government was the only one 
 which could impose laws upon them, and its sovereignty over them 
 was complete. No state of the Union had any such right of sover- 
 eignty over them ; no other country or government had any such right. 
 These propositions are so elementary, and so necessarily follow from 
 the condition of things arising upon the acquisition of new territory, 
 
 that they need no argument to support them. They are self-evident. 
 
 * * * 
 
 This brings us directly to the question of the power of congress to 
 revoke the charter of the Church of Jesus Christ of Latter-Day Saints. 
 That corporation, when the territory of Utah was organized, was a 
 corporation de facto, existing under an ordinance of the so-called State 
 of Deseret, approved February 8, 1851. This ordinance had no va- 
 lidity except in the voluntary acquiescence of the people of Utah then 
 
 1 Facts sufficiently stated in opinion ; arguments and much of opinion 
 omitted.
 
 257 EFFECT OF DISSOLUTION. 
 
 residing there. Deseret, or Utah, had ceased to belong to the Mexi-' 
 can government by the treaty of Guadalupe Hidalgo, and in 1851 it 
 belonged to the United States, and no government without authority 
 from the United States, express or implied, had any legal right to ex- 
 ist there. The assembly of Deseret had no power to make any valid 
 law. Congress had already passed the law for organizing the terri- 
 tory of Utah into a government, and no other government was lawful 
 within the bounds of that territory. But after the organization of the 
 territorial government of Utah under the act of congress, the legisla- 
 tive assembly of the territory passed the following resolution: ''Re- 
 solved by the Legislative Assembly of the Territory of Utah, That the 
 laws heretofore passed by the provisional government of the state of 
 Deseret, and which do not conflict with the organic act of said terri- 
 tory, be and the same are hereby declared to be legal and in full force 
 and virtue, and shall so remain until superseded by the action of the 
 legislative assembly of the territory of Utah." This resolution was 
 approved October 4, 1851. The confirmation was repeated on the 
 i9th of January, 1855, by the act of the legislative assembly, entitled 
 "An act in relation to the compilation and revision of the laws and 
 resolutions in force in Utah Territory, their publication and distribu- 
 tion." From the time of these confirmatory acts, therefore, the said 
 corporation had a legal existence under its charter. But it is too plain 
 for argument that this charter or enactment was subject to revocation 
 and repeal by congress whenever it should see fit to exercise its power 
 for that purpose. Like any other act of the territorial legislature, it 
 was subject to this condition. Not only so, but the power of congress 
 could be exercised in modifying or limiting the powers and privileges 
 granted by such charter, for if it could repeal, it could modify ; the 
 greater includes the less. Hence there can be no question that the act 
 of July i, 1862, already recited, was a valid exercise of congressional 
 power. Whatever may be the effect or true construction of this act, 
 we have no doubt of its validity. As far as it went it was effective. 
 If it did not absolutely repeal the charter of the corporation, it cer- 
 tainly took away all right or power which may have been claimed un- 
 der it to establish, protect or foster the practice of polygamy, under 
 whatever disguise it might be carried on; and it also limited the 
 amount of property which might be acquired by the Church of Jesus 
 Christ of Latter-Day Saints, not interfering, however, with vested 
 rights in real estate existing at that time. 
 
 If the act of July i, 1862, had but a partial effect, congress had 
 still the power to make the abrogation of its charter absolute and com- 
 plete. This was done by the act of 1887. By the seventeenth sec- 
 tion of that act it is expressly declared that "the acts of the legisla- 
 tive assembly of the territory of Utah, incorporating, continuing or 
 providing for the corporation known as the Church of Jesus Christ of 
 Latter-Day Saints, and the ordinance of the so-called general assem- 
 bly of the State of Deseret, incorporating the said church, so far as the 
 same may now have legal force and validity, are hereby disapproved 
 and annulled, and the said corporation, so far as it may now have, or
 
 908 MORMON CHURCH V. UNITED STATES. 257 
 
 pretend to have, any legal existence, is hereby dissolved." This ab- 
 solute annulment of the laws which gave the said corporation a legal 
 existence has dissipated all doubt on the subject, and the said corpo- 
 ration has ceased to have any existence as a civil body, whether for 
 the purpose of holding property or of doing any other corporate act. 
 It was not necessary to resort to the condition imposed by the act of 
 1862, limiting the amount of real estate which any corporation or as- 
 sociation for religious or charitable purposes was authorized to acquire 
 or hold, although it is apparent from the findings of the court that this 
 condition was violated by the corporation before the passage of the 
 act of 1887. Congress, for good and sufficient reasons of its own, in- 
 dependent of that limitation and of any violation of it, had a full and 
 perfect right to repeal its charter and abrogate its corporate existence, 
 which, of course, depended upon its charter. 
 
 The next question is whether congress or the court had the power 
 to cause the property of the said corporation to be seized and taken 
 possession of as was done in this case. 
 
 When a business corporation instituted for the purposes of gain or 
 private interest is dissolved, the modern doctrine is that its property, 
 after payment of its debts, equitably belongs to its stockholders. But 
 this doctrine has never been extended to public or charitable corpo- 
 rations. As to these the ancient and established rule prevails, namely: 
 that when a corporation is dissolved its personal property, like that 
 of a man dying without heirs, ceases to be the subject of private own- 
 ership, and becomes subject to the disposal of the sovereign authority, 
 whilst its real estate reverts or escheats to the grantor or donor, unless 
 some other course of devolution has been directed by positive law, 
 though still subject, as we shall hereafter see, to the charitable use. 
 To this rule the corporation in question was undoubtedly subject. But 
 the grantor of all or the principal part of the real estate of the Church 
 of Jesus Christ of Latter-Day Saints was really the United States, 
 from whom the property was derived by the church or its trustees 
 through the operation of the town-site act. Besides, as we have seen, 
 the act of 1862 expressly declared that all real estate acquired or held 
 by any of the corporations or associations therein mentioned (of 
 which the Church of Jesus Christ of Latter-Day Saints was one), con- 
 trary to the provisions of that act, should be forfeited, and escheat to 
 the United States, with a saving of existing vested rights. The act 
 prohibited the acquiring or holding of real estate of greater value than 
 $50,000 in a territory, and no legal title had vested in any of the 
 lands in Salt Lake City at that time, as the town-site act was not passed 
 until March 2, 1867. There can be no doubt, therefore, that the real 
 estate of the corporation in question could not, on its dissolution, re- 
 vert or pass to any other person or persons than the United States. 
 
 If it be urged that the real estate did not stand in the name of the 
 corporation but in the name of a trustee or trustees, and therefore was 
 not subject to the rules relating to corporate property, the substance 
 of the difficulty still remains. It can not be contended that the prohi- 
 bition of the act of 1862 could have been so easily evaded as by put-
 
 257 EFFECT OF DISSOLUTION. 909 
 
 ting the property of the corporation into the hands of trustees. The 
 equitable or trust estate was vested in the corporation. The trustee 
 held it for no other purpose, and the corporation being dissolved, that 
 purpose was at an end. The trust estate devolved to the United 
 States in the same manner as the legal estate would have done had it 
 been in the hands of the corporation. The trustee became trustee for 
 the United States instead of trustee of the corporation. We do not 
 now speak of the religious and charitable uses for which the corpora- 
 tion, through its trustee, held and managed the property. That as- 
 pect of the subject is one which places the power of the government 
 and of the court over the property on a distinct ground. 
 
 Where a charitable corporation is dissolved and no private donor 
 or founder appears to be entitled to its real estate (its personal prop- 
 erty not being subject to such reclamation), the government or sover- 
 eign authority, as the chief and common guardian of the state, either 
 through its judicial tribunals or otherwise, necessarily has the disposi- 
 tion of the funds of such corporation, to be exercised, however, with 
 due regard to the objects and purposes of the charitable uses to which 
 the property was originally devoted so far as they are lawful and not 
 repugnant to public policy. * * * 
 
 The property in question has been dedicated to public and charita- 
 ble uses. It matters not whether it is the product of private contri- 
 butions, made during the course of half a century, or of taxes imposed 
 upon the people, or of gains arising from fortunate operations in busi- 
 ness, or appreciation in values, the charitable uses for which it is 
 held are stamped upon it by charter, by ordinance, by regulation and 
 by usage, in such an indelible manner that there can be no mistake 
 as to their character, purpose or object. * * * 
 
 The manner in which the due administration and application of 
 charitable estates is secured, depends upon the judicial institutions and 
 machinery of the particular government to which they are subject. In 
 England, the court of chancery is the ordinary tribunal to which this 
 class of cases is delegated, and there are comparatively few which it 
 is not competent to administer. Where there is a failure of trustees, 
 it can appoint new ones ; and where a modification of uses is neces- 
 sary in order to avoid a violation of the laws, it has power to make 
 the change. There are some cases, however, which are beyond its 
 jurisdiction ; as where, by statute, a gift to certain uses is declared 
 void and the property goes to the king ; and in some other cases of 
 failure of the charity. In such cases the king as parens patrice, under 
 his sign manual, disposes of the fund to such uses, analogous to those 
 intended, as seems to him expedient and wise. 
 
 These general principles are laid down in all the principal treatises 
 on the subject, and are the result of numerous cases and authorities. 
 See Duke on Char. Uses, ch. 10, 4, 5, 6; Boyle on Char., bk. 2, ch. 
 3, 4; 2 Story's Eq. Jur., 1167, et seq. ; Attorney-General v. Guise, 
 2 Vernon 266; Moggridge v. Thackwell, 7 Ves. 36, 77; De Them- 
 mines v. De Bonneval, 5 Russ. 289; Town of Pawlet v. Clark, 9 
 Cranch 292, 335, 336; Beatty v. Kurtz, 2 Pet. 566; Vidal v. Girard's
 
 9IO MORMON CHURCH V. UNITED STATES. 257 
 
 Executors, 2 How. 127; Jackson v. Phillips, 14 Allen 539; Ould v. 
 Washington Hospital, 95 U. S. 303 ; Jones v. Habersham, 107 U. S. 
 174. * * * 
 
 It is obvious that any property of the corporation which may be ad- 
 judged to be forfeited and escheated will be subject to a more abso- 
 lute control and disposition by the government than that which is not 
 so forfeited. The non-forfeited property will be subject to such dis- 
 position only as may be required by the law of charitable uses ; whilst 
 the forfeited and escheated property, being subject to a more absolute 
 control of the government, will admit of a greater latitude of discre- 
 tion in regard to its disposition. As we have seen, however, con- 
 gress has signified its will in this regard, having declared that the pro- 
 ceeds shall be applied to the use and benefit of common schools in 
 the territory. Whether that will be a proper destination for the non- 
 forfeited property will be a matter for future consideration in view of 
 all the circumstances of the case. * * * 
 
 Decree affirmed generally, Fuller, C. J., Field and Lamar, J.J., 
 dissenting. 
 
 Note. Effect of dissolution. 
 
 1. Franchises can be no longer exercised: 1844, White v. Campbell, 5 
 Humph. (Tenn.)38; 1844, Bank of Mississippi v. Wrenn, 11 Miss. (3 Sm. 
 & M. ) 791 ; 1877, Turnpike Co. v. Illinois, 96 U. S. 63 ; 1879, State v. Lawrence 
 Bridge Co., 22 Kan. 438; 1881, Greenwood v. Freight Co., 105 U. S. 13, infra, 
 p. 1422; 1882, Campbell v. Talbot, 132 Mass. 174; 1889, People v. O'Brien, 111 
 N. Y. 1, infra, p. 1426; 1890, Marysville Invest. Co. v. Munson, 44 Kan. 491. 
 And see supra, pp. 868-871. 
 
 2. Executory contracts: 
 
 a. Involuntary dissolution, at common law, extinguished executory con- 
 tracts, and all claims for damages for non-performance: 1797, Bracken v. 
 William & M. College, 1 Call I Va.) 161; 1876,Silliman v. Fredericksburg, etc., 
 R. Co., 27 Gratt. (Va.) 119; 1883, People v. Globe Mut. L. Ins. Co., 91 N. Y. 
 174; 1892, Schleider v. Dielman, 44 La. Ann. 462; 1897, Rosenbaum v. U. S. 
 Cred. Sys. Co., 60 N. J. L. 294; 1899, Griffith v. Blackwater B. & L. Co., 40 
 W. Va. 56. S3 S. E. Rep. 1 25, supra, p. 897. 
 
 6. Voluntary dissolution does not extinguish executory contracts: 1834, 
 Revere v. Boston Copper Co., 15 Pick. (Mass.) 351; 1865, Muscatine T. V. v. 
 Funck, 18 Iowa 469, on 472; 1870, Pahquioque Bank v. Bethel Bank, 36 Conn. 
 325, 4 Am. Rep. 80; 1877, Shields v. Ohio, 95 U. S. 319, on 324; 1892, Schleider 
 v. Dielman, 44 La. Ann. 462; 1896, Tiffin Glass Co. v. Stoehr, 54 Ohio St. 157. 
 
 c. In equity the obligation of such contracts survives, and may be enforced 
 against corporate assets: 1819, Vose v. Grant, 15 Mass. 505, on 522; 1819, 
 Spear v. Grant, 16 Mass. 9, on 15; 1824, Wood v. Dummer, 3 Mason 30* ; 
 1834, Mnmtna v. Potomac Co., 8 Pet. (U. S.) 281, supra, p. 896; 1852, 
 Coulter v. Robertson, 16 Ind. 46, 79 Am. Dec. 405; 1853, Cnrran v. Arkan- 
 sas, 15 How. (U. S.)304, on 311-2; 1855, Bacon v. Robertson, 18 How. (U. S.) 
 480-6, supra, p. 899; 1861, State v. Bailey, 99 Mass. 267, 96 Am. Dec. 747; 
 1867, Powell v. North Mo. R. Co., 42 Mo. 63, on 68; 1873, Oakland R. Co. v. 
 Oakland, etc., R. Co., 45 Gal. 365, 13 Am. Rep. 181; 1876, Broughton v. Pen- 
 eacola, 93 U. S. 266, on 268; 1877, Shields v. Ohio, 95 U. S. 319, on p. 324; 
 1877, Wallamet Falls Canal, etc., Co. v. Kittridge, 5 Saw. 44, on 50; 1877, 
 Shamokin Valley, etc., R. Co. v. Malone, 85 Pa. St. 25, on 36; 1882, Taylor v. 
 Holmes, 14 Fed. Rep. 498; 1887, Stamm v. N. W. Mut. Ben. Assn., 65 Mich. 
 317, on 330; 1899, Boyd v. Hankinson, 92 Fed. Rep. 49. See infra, 36, and 
 dicta in cases next paragraph. 
 
 d. Under statutes rights arising from executory contracts are preserved :
 
 257 EFFECT OF DISSOLUTION. 911 
 
 1843, Readv. Frankfort Bank, 23 Maine 318; 1866, Towar v. Hale, 46 Barb. 
 (N. Y.) 361 ; 1877, Shields v. Ohio, 95 U. S. 319; 1879, Von Glahn v. De Ros- 
 set. 81 N. C. 467, 473; 1880, People v. Trust Co., 82 N. Y. 283; 1882, Life 
 Assoo. v. Fassett, 102 111. 315 ; 1882, Taylor v. Holmes, 14 Fed. Rep. 498 ; 1886, 
 Beck v. Henderson, 76 Ga. 360; 1889, Mott v. Danville Seminary, 129 111. 
 403; 1891, Nelson v. Hubbard, 96 Ala. 238, 244; 1892, Schleider v. Dielman, 
 44 La. Ann. 462; 1894, Mason v. Pewabic Min. Co., 66 Fed. Rep. 391, on 394; 
 1896, Tiffin Glass Co. v. Stoehr, 54 Ohio St. 157. 
 
 3. Debts due to or from the corporation: 
 
 a. At common law debts were extinguished: 1835, Commercial Bank v. 
 Lockwood, 2 Har. (Del.) 8; 1841, Fox v. Horah, 1 Ired. Eq. (N. C.) 358, 36 Am. 
 Dec. 48; 1844, White v. Campbell, 5 Humph. (Tenn.) 38; 1847, Commercial 
 Bank v. Chambers, 8 Sin. & M. ( Miss. ) 9 ; 1849, Town of Port Gibson v. Moore, 
 13 Sin. & M. ( Miss.) 157; 1850, Hightower v. Thornton, 8 Ga. 486,52 Am. Dec. 
 412; 1854, Moultrie v. Smiley, 16 Ga. 289; 1863, Malloy v. Mallett, 59 N. C. 
 (6 Jones Eq ) 345; 1867, Conwell v. Pattison, 28 Ind. 509; 1872, Exchange 
 Bank v. Teddy, 67 N. C. 169; 1878, Bank of Mississippi v. Duncan, 56 Miss. 
 166; 1888, Higgins v. Downward, 8 Houst. (Del.) 227, 40 Am. St. 141, supra, 
 p. 152. 
 
 b. But debts and claims are preserved in equity : 1861, State, ex rel. Brown, 
 v. Bailey, 16 Ind. 46, 79 Am. Dec. 405; 1868, Folger v. Columbia Ins. Co., 99 
 Mass. 267, 96 Am. Dec. 747 ; 1877, McCoy v. Farmer, 65 Mo. 244 ; 1883, Howe v. 
 Robinson, 20 Fla. 352; 1888, People v. O'Brien, 111 N. Y. 1, 7 Am. St. Rep. 
 684, infra, p. 1426; 1888, Higgins v. Downward, 8 Houst. (Del.) 227, 40 Am. St. 
 Rep. 141, supra, p. 152; 1890, Havermeyer v. Superior Court, 84 Cal. 327, 18 
 Am. St. Rep. 192; 1895, Conover v. Hull, 10 Wash. 673, 45 Am. St. Rep. 810. 
 
 See, supra, 2c. 
 
 c. And very generally now by statute, rights, credits or liabilities arising 
 ex contractu or ex delicto are preserved, and trustees provided for the settle- 
 ment of such claims: 1847, Commercial Bank v. Chambers, 8 Sm. & M. 
 (Miss.) 9; 1856, Robinson v. Lane, 19 Ga. 337; 1860, Hargroves v. Chambers, 
 30 Ga. 580; 1861, Bank of Salem v. Caldwell, 16 Ind. 469; 1867, Hunt v. Co- 
 lumbia Ins. Co., 55 Maine 290, 92 Am. Dec. 592; 1885, Society Perun v. Cleve- 
 land, 43 Ohio St. 481, supra, p. 617; 1888, Miller v. Newburg Coal Co., 31 W. 
 Va. 836, 13 Am. St. Rep. 903; 1891, Hepworth v. Union Ferry Co., 62 Hun 
 (N. Y.) 257; 1891, Grafton v. Union Ferry Co., 19 N. Y. Supp. 966, contra; 
 1894, People v. Troy St. & I. Co., 82 Hun 303, 1 N. Y. Ann. Cas. 138; 1894, 
 Marsteller v. Mills, 143 N. Y. 398, 38 N. E. Rep. 370; 1898, State v. Fogerty, 
 105 Iowa 32 ; 1899, American Surety Co. v. Great W. S. Co., 58 N. J. Eq. 526, 4:; 
 Atl. Rep. 579; 1899, Boyd v. Hankinson, 92 Fed. Rep. 49. See, supra, 2d. 
 Compare, 1885, Gray v. National S. S. Co., 115 U. S. 116 (tort). 
 
 4. Personal property, at common law, upon dissolution, vested in the crown 
 or state: Coke's Littleton, 136; Rex v. Pasmore, 3 Term R. 199; 1823, State 
 Bank v. State, 1 Blackf. (Ind.) 267, supra, p. 891J1841, Foxv. Horah, 1 Ired. 
 Eq. (N. C.) 358, 36 Am. Dec. 48; 1844, White v. Campbell, 5 Humph. (Tenn.) 
 38; 1856, Erie R. Co. v. Casey, 26 Pa. St. 287. See infra, 5c. 
 
 5. Real property : 
 
 a. At common law real estate reverted to the grantor. 1823, State Bank v. 
 State, 1 Blackf. (Ind.) 267, supra, p. 891 ; 1844, White v. Campbell, 5 Humph. 
 (Tenn.) 38; 1848, Bingham v. Wiederwax, 1 N. Y. 509; 1852, Nicoll v. N. Y. 
 & E. R. Co., 12 Barb. 460; 1856, Erie, etc., R. v. Casey, 26 Pa. St. 287 (goes 
 to the state); 1862, Plitt v. Cox, 43 Pa. St. 486 (same) ; 1869, People v. Col- 
 lege of California, 38 Cal. 166; 1875, Mercer Academy v. Rusk, 8 W. Va. 373; 
 1877, Turnpike Co. v. Illinois, 96 IT. S. 63; 1885, New York, etc., R. v. Parma- 
 lee, 1 Ohio C. C. 239 ; 1891, Danville Seminary v. Mott, 136 111. 289. See also, 
 supra, 3c. 
 
 b. But a corporation whose duration is limited may take or grant an estate 
 in fee: 1848, People v. Manran, 5 Denio 389; 1862, Nicoll v. N. Y. & E. R. 
 Co., 12 Barb. 460; 1854, Nicoll v. N. Y. & E. R. Co., 12 N. Y. 121 ; 1856, Rives 
 v. Dudley, 3 Jones Eq. (56 N. C.) 126, 67 Am. Dec. 231 ; 1864, Erie R. Co. v. 
 State, 3l"N. J. L. 531, 86 Am. Dec. 226; 1889, Bailey v. 1'lattc, etc., Co., 12
 
 912 MORMON CHURCH V. UNITED STATES. 257 
 
 Colo. 230; 1889, Davis v. Memphis, etc., R., 87 Ala. 633; 1890. Miner v N 
 Y., etc., R., 123 N. Y. 242; 1894, Detroit Citizens' St. R. v. Detroit, 64 Fed, 
 Rep. 628; 1896, Union, etc., R. Co. v. Chicago, etc., R., 163 U. S. 564; 1897 
 Sionx, etc., Co. v. Trust Co., 82 Fed. Rep. 124; 1897, Wilson v. Learv, 120 N 
 C. 90, 58 Am. St. Rep. 778, supra, p. 903. 
 
 c. But in equity or by statute, real or personal estate, or the proceeds 
 from its sale, are considered a fund for the payment of debts, and distribution 
 among shareholders, and there is no reversion either to the grantor or to the 
 state in the case of private business corporations, but in eleemosynary and 
 non-business corporations the common law doctrines are applied frequently 
 1860, Owen v. Smith, 31 Barb. (N. Y.) 641 ; 1866, Towar v. Hale, 46 Barb (N 
 Y.) 361 ; 1872, Heath v. Barmore, 50 N. Y. 302; J887, Titcomb v. Kennebunk 
 Mut. F. Ins. Co., 79 Maine 315, supra, p. 904; 1888, People v. O'Brien 111 N 
 Y. 1, 7 Am. St. Rep. 684; 1889, Bailey v. Platte L. D. Canal & M. C., 12 Colo 
 230; 1889, Davis v. Memphis, etc., R., 87 Ala. 633; 1890, Havermeyer v. Su- 
 perior Court, 84 Cal. 327, 18 Am. St. Rep. 192; 1890, Mormon Church v. United 
 States, 136 U. S. 1, supra, p. 906 ; 1891, Danville Seminary v. Mott, 13(5 111. 28!) : 
 1893, Sulphur S. &. M. P. R. v. St. Louis, 2 Texas Civ. App. 650; 1897, Wilson 
 v. Leary, 120 N. C. 90, 58 Am. St. Rep. 778, supra, p. 903. 
 
 6. Actions by a corporation: 
 
 a. Suits by a corporation at common law abate upon its dissolution: 1810, 
 Bank of U. S. v. McLaughlin, 2 Cranch C. C. 20, Fed. Gas. 928; 1843, May v. 
 State Bank, 2 Rob. (Va.) 56, 40 Am. Dec. 726; 1844, Bank of Miss. v. Wrenn, 
 3Sm.&M. (Miss.) 791; 1844, Miami Exporting Co. v. Gano, 13 Ohio 269; 
 1846, Bank of Gallipolis v. Trimble, 6 B. Mon. (Ky.) 599; 1851, Ingraham v. 
 Terry, 11 Humph. (Tenn.) 572; 1852, Torry v. Robertson, 24 Miss. 192; 1891, 
 Van Pelt v. Home Bldg. Assn., 87 Ga. 370. 
 
 b. But see the following cases holding dissolution of a plaintiff corporation 
 after suit is begun is not ground for nonsuit: 1828, Agnew v. Bank, 2 Har. 
 & G. (Md.) 478; 1842, City of Louisville v. Bank.of U. S., 3 B. Mon. (Ky.) 
 138; 1849, Grand Gulf Bank v. Wood, 12 8m. & M. (Miss.) 482; 1850, Kim- 
 ball v. Grafton Bank, 20 N. H. 347; 1877, Kansas City Hotel Co. v. Sauer, 65 
 Mo. 279; 1882, Butchers' & D. Bank v. Pulitzer, 11 Mo. App. 594. 
 
 c. Statutes may prevent abatement of suits by dissolution of plaintiff cor- 
 poration: 1826, President, etc., of N. J., etc., Bank v. Thorp, 6 Cow. (N. Y.) 
 46 ; 1847, Bank of U. S. v. Leathers, 8 B. Mon. (Ky.) 126 ; 1857, State v. Bank, 
 18 Ark. 554; 1897, Richmond Union Pass. Co. v. R. Co., 95 Va. 386: 1898, 
 Singer & Talcott Stone Co. v. Hutchinson, 176 111. 48. 
 
 7. Suits against a corporation : 
 
 a. No valid judgment at common law could be rendered against a dissolved 
 corporation: 1836, Rider v. Nelson, etc., Fac., 7 Leigh (Va.) 154, 30 Am. Dec. 
 495; 1845, Musson v. Richardson, 11 Rob. (La.) 37; 1845, Greeley v. Smith, 3 
 Story 657, Fed. Cas. 5748; 1849, Merrill v. Bank, 31 Maine 57, 50 Am. Dec. 
 649; 1874, McCullough v. Norwood, 58 N. Y. 562; 1874, First National Bank 
 v. Colby, 88 U. S. 609; 1878, Sturgis v. Vanderbilt, 73 N. Y. 384; 1880, Ferry 
 v. Merchants', etc., Bank, 66 Ga. 177; 1891, Pendleton v. Russell, 144 U. S. 
 640; 1895, In re N. Y. Oxygen Co., 33 N. Y. Supp. 726, 24 Civ. Proc. Rep. 398; 
 1895, Combes v. Keyes, 89 Wis. 297, 46 Am. St. Rep. 839; 1897, In re Direc- 
 tors, etc., Brewing Co., 24 App. Div. (N. Y.) 223. See, infra, c and d and 8. 
 
 b. Attachment or garnishment proceedings are terminated by dissolution 
 of defendant corporation: 1844, Farmers', etc., Bank v. Little, 8 W. & S. 
 (Pa.) 207, 13 Am. Dec. 293; 1874, Frailey v. Central Fire Ins. Co., 9 Phil. 219; 
 1895, Walters v. Western, etc., R. Co., 69 Fed. Rep. 679. But see, 1840, Lin- 
 dell v. Benton, 6 Mo. 361 ; 1882, Hays v. Lycoming Fire Ins. Co., 99 Pa. St. 
 621, contra; 1901, Fitts v. Natl. Life Assn., Ala. , 30 So. 374. 
 
 c. Statutes may provide that dissolution shall not abate suits pending, nor 
 prevent the bringing of suits against the defunct corporation: 1859, Blake 
 v. Portsmouth, etc., R. Co., 39 N. H. 435; 1870, Ramsay v. Peoria, etc., Ins. 
 Co., 55 111. 311; 1887, Greenbrier Lumber Co. v. Ward, 30 W. Va. 43; 1890. 
 Lake Superior Iron Co. v. Brown, B. & Co., 44 Fed. Rep. 539; 1894, People 
 V. Troy Steel & Iron Co., 82 Hun (N. Y.) 304; 1895, State v. Port Royal, etc.,
 
 257 EFFECT OF DISSOLUTION. 913 
 
 R., 45 S. C. 413, 23 S. E. Rep. 363; 1898, Steinhaur v. Colmar, 11 Colo. App. 
 494, 55 Pac. Rep. 291 ; 1901, Shayne v. Evening Post Pub. Co., 168 N. Y. 70, 
 55 L. R. A. 777. 
 
 An action for libel against a corporation which abates by the expiration of 
 the corporate charter may be revived against the trustees of the dissolved 
 corporation in office at the time of dissolution: 1901, Shayne v. Evening 
 Post Pub. Co., 168 N. Y. 70, 55 L. R. A. 777. 
 
 d. And it seems that a decree dissolving a corporation may provide that 
 pending suits against the corporation shall not be affected : 1882, Life Asso- 
 ciation v. Funck, 102 111. 315; 1891, Hepworth v. Union Ferry Co., 62 Hun 
 (N. Y.) 257; 1895, People v. Troy Steel, etc., Co., 82 Hun (N. Y.) 303, 1 N. Y. 
 Ann. Cas. 138. 
 
 8. Judgments : At common law, a judgment in favor of a corporation was ex- 
 tinguished by the dissolution of the corporation : 1842, May v. State, 2 Rob. 
 (Va. ) 56, 40 Am. Dec. 726; but if such judgment was assigned before dissolu- 
 tion the assignee could enforce it after dissolution : 1855, De Vendell v. Ham- 
 ilton, 27 Ala. 156; 1861, Leach v. Thomas, 27 111. 457. 
 
 A judgment against a corporation, obtained while an appeal from a judg- 
 ment of dissolution is pending, may be enforced before the judgment of disso- 
 lution is affirmed: 1894, Giles v. Stanton, 86 Tex. 620, 26 S.W.Rep. 615, 1111. 
 
 58 WIL. CASES.
 
 PART III. 
 
 THE CORPORATION AS A SUBJECT AND SOURCE OF 
 RIGHTS AND OBLIGATIONS. 
 
 TITLE I. RIGHTS AND DUTIES OF THE CORPORATION IN GENERAL. 
 
 CHAPTER 12. 
 
 POWERS AND AUTHORITY IN GENERAL. 
 ARTICLE I. THEORIES OF CORPORATE CAPACITY. 
 
 Sec. 258. Corporate powers. "The capacities of corporations 
 are limited: (i) by natural possibility, i. e., by the fact that 
 they are artificial and not natural persons; (2) by legal 
 possibility, i. e., by the restrictions which the power creating 
 a corporation may impose on the legal existence and action 
 of its creature. 
 
 "First, of the limits set to the powers and liabilities of cor- 
 porations by the mere fact that they are not natural persons. 
 The requirement of a common seal is sometimes said to spring 
 from the artificial nature of a corporation. The fact that it is 
 not known in Scotland is, however, enough to show that it is 
 a mere positive rule of English law. The correct and compre- 
 hensive proposition is that a corporation can do no act except 
 by an agent (for even if all the members concur they are but 
 agents). * * * 
 
 "We come now to consider the far more difficult and com- 
 plicated questions of special restrictions. On this 
 there have been many decisions, much discussion, and some 
 real conflict of judicial opinions. There are two opposite 
 views by which the consideration of the matter may be gov- 
 erned, and they may be expressed thus:
 
 259 THEORIES OF CORPORATE CAPACITY. 91 5 
 
 "I. A corporation is an artificial creature of the law, and 
 has no existence except for the purposes for which it was cre- 
 ated. No act exceeding the limits of those purposes can be 
 the act of the corporation, and no one can be authorized to 
 bind the corporation to such an act. In each particular case, 
 therefore, the question is : Was the corporation empowered to 
 . bind itself to this transaction? 
 
 "2. A corporation once duly constituted has all such pow- 
 ers and capacities of a natural person as in the nature of things 
 can be exercised by an artificial person. Transactions entered 
 into with apparent authority in the name of the corporation 
 are presumably valid and binding, and are invalid only if it 
 can be shown that the legislature has expressly or by neces- 
 sary implication deprived the corporation of the power it nat- 
 urally would have had of entering into them. The question is, 
 therefore: Was the corporation forbidden to bind itself to 
 this transaction? * * * * 
 
 "These views we may call ( i) the doctrine of special ca- 
 pacities, and (2) the doctrine of general capacity." Pollock 
 on Contracts, pp. 86-91. 
 
 Sec. 259. Special capacities. 
 
 THOMAS v. RAILROAD COMPANY. 1 
 
 1879. IN THE SUPREME COURT OF UNITED STATES. 101 U. 
 
 S. 71-87. 
 
 [Error to the circuit court of the United States for the eastern dis- 
 trict of Pennsylvania. 
 
 This was an action of covenant, by Thomas et al. against the West 
 Jersey Railroad Company, and they, to maintain the issue on their 
 part, offered to prove that: 
 
 In October, 1863, the Millville and Glassboro Railroad Company, 
 incorporated by the legislature of New Jersey in 1859, entered into 
 an agreement with them leasing its road, buildings and rolling-stock 
 to them for twenty years from August, 1863, for the consideration of 
 one-half of the gross sum collected from the operation of the road by 
 the plaintiffs during that period ; and providing that the company 
 .might at any time terminate the contract and retake possession of the 
 railroad, and in such case, if the plaintiffs so desired, arbitrators 
 should decide upon the value of the contract and the loss incurred by 
 the termination thereof; and the decision was to be final, conclusive, 
 and binding upon the parties. 
 
 In October, 1867, articles of agreement were entered into between 
 
 1 Statement abridged.
 
 THOMAS V. RAILROAD COMPANY. 259 
 
 the Millville and Glassboro Railroad Company and the West Jersey 
 Railroad Company, the defendant, whereby it was agreed that the 
 former should be merged into and consolidated with the latter. 
 
 In November, 1867, a written notice was served by the Millville and 
 Glassboro Railroad Company upon the plaintiffs, putting an end to 
 the contract and to all the rights thereby granted, and notifying them 
 that the company would retake possession of the railroad on the first 
 day of April, 1868. 
 
 In March, 1868, the legislature of New Jersey enacted that, upon 
 the fulfillment of certain preliminaries, the Millville and Glassboro 
 Railroad Company should be consolidated with the West Jersey Rail- 
 road Company, "subject to all the debts, liabilities and obligations of 
 both of said companies." These conditions were fulfilled, and the 
 railroad was duly delivered by the plaintiffs to the West Jersey Rail- 
 road Company on the first of April, 1868. 
 
 Notices to arbitrate according to the terms of the agreement were 
 served by the plaintiffs upon the Millville and Glassboro Railroad 
 Company, and immediately thereafter upon the West Jersey Railroad 
 Company. An agreement of submission was entered into whereby 
 arbitrators were appointed, with power to settle the controversy be- 
 tween the parties. An award was made by which the value of the 
 unexpired term of the lease, and the loss sustained by reason of the 
 termination thereof, to and by the plaintiffs, was adjudged to be the 
 sum of $159,437.07; and the West Jersey Railroad Company was 
 ordered to pay that sum to the plaintiffs. This award was subse- 
 quently set aside in a suit in equity brought in New Jersey. 
 
 The plaintiffs further offered to prove their compliance in all re- 
 spects with the terms of the lease, its value, and the loss and damage 
 they had sustained by reason of its termination as aforesaid. The 
 court excluded the offered testimony on the ground that the lease by 
 the Millville and Glassboro Railroad Company to the plaintiffs was 
 ultra vires, and directed the jury to return a verdict for the defend- 
 ant. The plaintiffs duly excepted, and sued out this writ.] 
 
 MILLER, J. * * * The ground on which the court held the 
 contract to be void, and on which the ruling is supported in argument 
 here, is that the contract amounted to a lease, by which the railroad, 
 rolling-stock, and franchises of the corporation were transferred to 
 plaintiffs, and that such a contract was ultra vires of the company. 
 
 It is denied by the plaintiffs that the contract can be fairly called a 
 lease. 
 
 But we know of no element of a lease which is wanting in this in- 
 strument. "A lease for years is a contract between lessor and lessee, 
 for possession of lands, etc., on the one side, and a recompense by 
 rent or other consideration on the other." 4 Bac. Abr. 632. * * * 
 
 The authority to make this lease is placed by counsel primarily in 
 the following language of the thirteenth section of the company's 
 charter : 
 
 "That it shall be lawful for the said company, at any time during 
 the continuance of its charter, to make contracts and engagements
 
 259 THEORIES OF CORPORATE CAPACITY. 917 
 
 with any other corporation, or with individuals, for the transporting 
 or conveying any kinds of goods, produce, merchandise, freight, or 
 passengers, and to enforce the fulfillment of such contracts." 
 
 This is no more than saying: "You may do the business of carry- 
 ing goods and passengers, and may make contracts for doing that 
 business. Such contracts you may make with any other corporation 
 or with individuals." No doubt a contract by which the goods re- 
 ceived from railroad or other carrying companies should be carried 
 over the road of this company, or by which goods or passengers from 
 this road should be carried by other railroads, whether connecting im- 
 mediately with them or not, are within this power, and are probably 
 the main object of the clause. But it is impossible, under any sound 
 rule of construction, to find in the language used a permission to sell, 
 lease, or transfer to others the entire road and the rights and fran- 
 chises of the corporation. To do so is to deprive the company of 
 the power of making those contracts which this clause confers, and of 
 performing the duties which it implies. * * * 
 
 It is next insisted, in the language of counsel, that though this may 
 be so, "a corporate body may (as at common law) do any act which 
 is not either expressly or impliedly prohibited by its charter ; although 
 where the act is unauthorized by the charter a shareholder may enjoin 
 its execution, and the state may, by proper process, forfeit the 
 charter." 
 
 We do not concur in this proposition. We take the general doc- 
 trine to be in this country, though there may be exceptional cases and 
 some authorities to the contrary, that the powers of corporations 
 organized under legislative statutes are such and such only as those 
 statutes confer. Conceding the rule applicable to all statutes, that 
 'what is fairly implied is as much granted as -what is expressed, it 
 remains that the charter of a corporation is the measure of its pow- 
 ers, and that the enumeration of these powers implies the exclusion 
 of all others. * * * 
 
 [Citing and discussing East Anglian R. Co. v. Eastern Counties 
 R. Co., ii C. B. 775; Eastern Counties R. Co. v. Hawkes, 5 H. 
 L. Cas. 331 ; McGregor v. Deal & Dover R. Co., 22 Law J. Q. B. 
 69, 18 Q. B. 618.] 
 
 There is another principle of equal importance and equally conclu- 
 sive against the validity of this contract, which, if not coming exactly 
 within the doctrine of ultra vires as we have just discussed it, shows 
 very clearly that the railroad company was without the power to 
 make such a contract. 
 
 That principle is that where a corporation, like a railroad company, 
 has granted to it by charter a franchise intended in large measure to 
 be exercised for the public good, the due performance of those func- 
 tions being the consideration of the public grant, any contract which 
 disables the corporation from performing those functions, which un- 
 dertakes, without the consent of the state, to transfer to others the 
 rights and powers conferred by the charter, and to relieve the grant- 
 ees of the burden which it imposes, is a violation of the contract with 
 the state, and is void as against public policy. * * * [Citing New
 
 91 8 THOMAS V. RAILROAD COMPANY. 259 
 
 York &M. L. R. Co. v. Winans, 17 How. 30; Beman v. Rufford r 
 I Sim. (N. S. ) 550; Winch v. Birkenhead, L. & C. J. R. Co., isEng. 
 L. & Eq. 506 ; Black v. Delaware & R. Canal Co., 22 N. J. Eq. 130.] 
 
 It remains to consider the suggestion that the contract, having been 
 executed, the doctrine of ultra vires is inapplicable to the case. There 
 can be no question that, in many instances where an invalid contract, 
 which the party to it might have avoided or refused to perform, has 
 been fully performed on both sides, whereby money has been paid or 
 property changed hands, the courts have refused to sustain an ac- 
 tion for the recovery of the property or the money so transferred. 
 
 In regard to corporations the rule has been well laid down by Corn- 
 stock, C. J., in Parish v. Wheeler, 22 N. Y. 494, that the executed 
 dealings of corporations must be allowed to stand for and against both 
 parties when the plainest rules of good faith require it. 
 
 But what is sought in the case before us is the enforcement of the 
 unexecuted part of this agreement. So far as it has been executed, 
 namely, the four or five years of action under it, the accounts have 
 been adjusted and each party has received what he was entitled to by 
 its terms. There remains unperformed the covenant to arbitrate with 
 regard to the value of the contract. It is the damages provided for 
 in that clause of the contract that are sued for in this action. Dam- 
 ages for a material part of the contract never performed ; damages for 
 the value of a contract which was void. It is not a case of a contract 
 fully executed. The very nature of the suit is to recover damages for 
 its non-performance. As to this it is not an executed contract. 
 
 Not only so, but it is a contract forbidden by public policy and be- 
 yond the power of the defendants to make. Having entered into the 
 agreement it was the duty of the company to rescind or abandon it at 
 the earliest moment. This duty was independent of the clause in the 
 contract which gave them the right to do it. Though they delayed 
 its performance for several years, it was nevertheless a rightful act 
 when it was done. Can this performance of a legal duty, a duty both 
 to stockholders of the company and to the public, give to the plaint- 
 iffs a right of action? Can they found such a right on an agreement 
 void for want of corporate authority and forbidden by the policy of 
 the law? To hold that they can, is, in our opinion, to hold that any 
 act performed in executing a void contract makes all its parts valid, 
 and that the more that is done under a contract forbidden by law, the 
 stronger is the claim to its enforcement by the courts. 
 
 We can not see that the present case comes within the principle 
 that requires that contracts, which, though invalid for want of corpo- 
 rate power, have been fully executed, shall remain as the foundation 
 of rights acquired by the transaction. 
 
 We have given this case our best consideration on account of the 
 importance of the principles involved in its decision, and after a full 
 examination of the authorities we can see no error in the action of the 
 circuit court. Judgment affirmed. 
 
 Note. Special capacities. Only the following among numerous author- 
 ities are given: 1804, Head v. Providence Ins. Co., 2 Cranch (6 U. S.) 127;
 
 26O THEORIES OF CORPORATE CAPACITY. 919 
 
 1807, Beatty v. Marine Ins. Co., 2 Johns. (N. Y.) 109,3 Am. Dec. 401; 
 1818, People v. Utica Ins. Co., 15 Johns. 358, 8 Am. Dec. 243; 1819, Dart- 
 mouth College v. Woodward, 5 Wheat. (U. S.) 518, 636, supra, p. 708; 1827, 
 Fuller v. Plainfield, 6 Conn. 532; 1828, State v. Stebbins, 1 Stew. (Ala.) 299; 
 1830, Providence Bank v. Billings, 4 Pet. (29 U. S.) 514; 1831, Betts v. Men- 
 ard, 1 111. (Breeee) 395; 1839, Bank of Augusta v. Earle, 13 Pet. (38 U.S.) 
 519, 587; 1839, Penobscot Boom Co. v. Lamson, 16 Maine 224, 33 Am. Dec. 
 656; 1839, Thomas v. Dakin, 22 Wend. 9, supra, p. 19; 1841, State v. Wash- 
 ington S. L. Co., 11 Ohio 96; 1846, Coleman v. Eastern Counties B. Co., 10 
 Beav. 1; 1846, Janesyille Bridge Co. v. Stoughton, 1 Pin. (Wis.) 667; 1850, 
 Perrine v. Ches. & D. C. Co., 9 How. (50 U. S.) 172; 1851, East Anglian R. 
 Co. v. -Eastern Counties R., 11 C. B. (73 E. C. L.) 775; 1852, Bank of Penn- 
 sylvania v. Commonwealth, 19 Pa. St. 144; 1853, Hood v. N. Y. & N. H. R. 
 Co., 22 Conn. 502; 1856, Commw. v. Erie & N. E. R. Co., 27 Pa. St. 339, 67 
 Am. Dec. 471 ; 1858, Pearce v. Madison & Ind. R. Co., 21 How. (62 U. S.)441 ; 
 1858, A bby v. Billups, 35 Miss. 618,72 Am. Dec. 143; 1859, Talmadge v. 
 North Am. C. & T. Co., 3 Head (40 Tenn.) 337; 1860, Bissell v. Mich. South- 
 ern, etc., R. Co., 22 N. Y. 258; 1860, Memphis & St. F. P. R. Co. v. Rives, 21 
 Ark. 302; 1860, McCracken v. City of San Fran., 16 Cal. 591 ; 1865, Hannibal 
 & St. J. R. Co., v. Marion Co., 36 Mo. 294; 1868, Rochester Ins. Co. v. Mar- 
 tin, 13 Minn. 59 (Gil. 54) ; 1869, Monument Nat'l Bank v. Globe Works, 101 
 Mass. 57; 1873, Fowler v. Scully, 72 Pa. St. 456, 13 Am. Rep. 699; 1875, Ash- 
 bury R. Co. v. Riche, L. R. 7 H. L. Rep. 653; 1877, Franklin Co. v. Lewiston 
 Inst. For Sav., 68 Maine 43 ; 1880, Houston & T. C. R. v. Shirley, 54 Texas 125 ; 
 1881, Davis v. Old Colony R. Co., 131 Mass. 258; 1885, Ewing v. Toledo Sav. 
 Bank, 43 Ohio St. 31 ; 1888, Chewackla Lime Works v. Dismukes, 87 Ala. 344 ; 
 1888, State v. Atchison & N. R. Co., 24 Neb. 143, 8 Am. St. Rep. 164; 1890, 
 Central Trans. Co. v. Pullman P. C. Co., 139 U. S. 24, 48; 1894, Commw. v. N. 
 El. R. Co., 161 Pa. St. 409; 1897, Farwell Co. v. Josephson, 96 Wis. 10, 37 L. R. 
 A. 138, 65 Am. St. Rep. 22 ; 1897, Pullman's Car Co. v. Cent. Trans. Co., 171 U. 
 S. 138; 1897, Franklin Nat'l Bank v. Whitehead, 149 Ind. 560, 63 Am. St. Rep. 
 302; 1898, Nicollet Nat'l Bank v. Frisk-Turner Co., 71 Minn. 413, 70 Am. St. 
 Rep. 334; 1899, De La Vergne Refrigerating Machine Co. v. German Sav. 
 Inst., 175 U. S. 40; 1899, National Loan, etc., Assn. v. Home Sav. Bank, 181 
 111. 35, 72 Am. St. Rep. 245. 
 
 Sec. 260. General capacity. 
 
 RICHE v. THE ASHBURY RAILWAY CARRIAGE & IRON CO., LTD.* 
 
 1874. -!N THE COURT OF EXCHEQUER. L. R. 9 Ex. 224-297. 
 
 [The defendants were incorporated as a limited company under the 
 companies' act, 1862, the objects of the company, as stated in the 
 memorandum of association, being "To make, sell, or lend on hire, 
 railway carriages and wagons, and all kinds of railway plant, fittings, 
 machinery and rolling stock; to carry on the business of mechanical 
 engineers and general contractors; to purchase, lease, work and sell 
 
 1 Statement of facts abridged, arguments, part of opinion of Blackburn, J., 
 and dissenting opinion of Archibald, J., omitted. Brett and Grove, JJ., 
 concurred with Blackburn, and Keating and Quain, JJ., concurred with 
 Archibald, J. The court being evenly divided, the judgment below was 
 affirmed. Upon appeal to the house of lords, 1875, Ashbury, etc., R. Co. v. 
 Riche, L. R. 7 H. L. Rep. 653, the decision above was overruled, and the doc- 
 trine of special capacities established as to parliamentary corporations. See 
 note, infra, p. 924.
 
 920 RICHE V. THE ASHBURY RAILWAY, ETC., CO. 260 
 
 mines, minerals, land and buildings ; to purchase and sell as mer- 
 chants timber, coal, metal and other materials, and to buy and sell 
 any such materials on commission as agents." And by article 4 of 
 their articles of association, "An extension of the company's business 
 beyond or for other than the objects or purposes expressed or implied 
 in the memorandum of association, shall take place only in pursuance 
 of a special resolution." 
 
 The defendants' directors in January, 1865, entered into contracts 
 on behalf of the company, by which the company became purchasers 
 of a concession granted by the Belgian government for the construc- 
 tion of a railway in Belgium, and contracted with the plaintiff that, 
 through the medium of a societe anonyme which the company were to 
 form in Belgium, he should be employed to construct the line, and 
 that they would pay certain sums of money into the treasury of the 
 societe anonyme for the purpose of payments being made to him 
 thereout for the construction of the railway. These contracts were 
 afterward modified in certain particulars by agreements entered into, 
 October, 1865, by the directors on behalf of the company. 
 
 In October, 1865, the plaintiff entered on the construction of the 
 line ; the societe anonyme was formed, and for some time payments 
 were made by the company into the treasury of the societe in pursu- 
 ance of their contract with the plaintiff. 
 
 In May, 1866, defendants repudiated the contracts, on the ground 
 that they were ultra vires. Afterwards these contracts were ratified 
 at an annual meeting of the shareholders. Plaintiffs claimed the con- 
 tracts were not ultra -vires, but if they were they could be ratified by 
 the shareholders.] 
 
 BLACKBURN, J. * * * It is of great importance, when we come 
 to construe a statute creating a corporation, to consider what would 
 be the incidents at common law conferred on a corporation created by 
 charter. 
 
 The leading authority on this subject is the case of Sutton's Hos- 
 pital, 10 Co. i. There were many points raised in that case. Those 
 which I think material to the present point arose on a part of the 
 charter set out in the special verdict (p. io3), by which the king in- 
 corporated the first governors of the charterhouse, and expressly pro- 
 vided, i. That they should have power to purchase, etc., as well 
 goods, chattels, etc., as lands. 2. To sue and be sued. 3. To have a 
 common seal, "whereby the same corporation shall or may seal any 
 manner of instrument touching the said corporation and the manor, 
 lands, etc., thereto belonging, or in any wise touching or concerning 
 the same. Nevertheless, it is our true intent and meaning that the 
 said governors, for the time being, and their successors, nor any of them, 
 shall do, or suffer to be done, at any time hereafter, any act or thing 
 whereby or by means whereof any of the manors, etc., of the said in- 
 corporation, or any estate, etc., shall be conveyed, etc., to any other 
 whatsoever contrary to the true meaning hereof, other than by such 
 leases as are hereafter mentioned, and that in such manner and form 
 as is hereafter expressed, and not otherwise." The king, therefore,
 
 26O THEORIES OF CORPORATE CAPACITY. 921 
 
 by this charter not only did not in express terms give a power of alien- 
 ation, but by express negative words forbade any alienation except by 
 lease. But the resolution of the court, as reported by Coke (at p. 
 3O<5), was that "when a corporation is duly created all other incidents 
 are tacite annexed ; * * * and, therefore, divers clauses subsequent 
 in the charter are not of necessity, but only declaratory, and might 
 well have been left out. As, i. By the same to have authority, ability, 
 and capacity to purchase ; but no clause is added that they may alien, 
 etc., and it need not, for it is incident. 2. To sue and be sued, im- 
 plead and be impleaded. 3. To have a seal, etc., that is also declar- 
 atory, for when they are incorporated they may make or use what 
 seal they will. 4. To restrain them from aliening or demising but in 
 a certain form ; that is an ordinance testifying the king's desire, but 
 it is but a precept and doth not bind in law." 
 
 This seems to me an express authority that at common law it is an 
 incident to a corporation to use its common seal for the purpose of 
 binding itself to anything to which a natural person could bind him- 
 self, -and to deal with its property as a natural person might deal with 
 his own. And further, that an attempt to forbid this on the part of 
 the king, even by express negative words, does not bind at law. Nor 
 am I aware of any authority in conflict v/ith this case. 
 
 If there are conditions contained in the charter that the corporation 
 shall not do particular things, and these things are nevertheless done, 
 it gives ground for a procceeding by scire facias in the name of the 
 crown to repeal the letters-patent creating the corporation. See Reg. 
 v. Eastern Archipelago Company, 2 E. & B. 857, 22 L. J. Q. B. 196. 
 But if the crown take no such steps it does not, as I conceive, lie in 
 the mouth, either of the corporation or of the person who has con- 
 tracted with it, to say that the contract into which they have entered 
 was void as beyond the capacity of the corporation. 
 
 I am aware of no decision by which a corporation at common law 
 has been permitted to do so. I take it that the true rule of law is, that 
 a corporation at common law has, as an incident given by law, the 
 same power to contract and subject to the same restrictions that a nat- 
 ural person has. And this is important when we come to construe the 
 statutes creating a corporation. For if it were true that a corporation 
 at common law has a capacity to contract to the extent given it by the 
 instrument creating it, and no further, the question would be, does 
 the statute creating the corporation, by express provision or by neces- 
 sary implication, show an intention in the legislature to confer upon 
 this corporation capacity to make the contract? But if a body corpo- 
 rate has, as incident to it, a general capacity to contract, the question 
 is, does the statute creating the corporation, by express provision or 
 necessary implication, show an intention in tbe legislature to prohibit, 
 and so avoid the making of a contract of this particular kind ? 
 
 I think this is the real question, and for that I refer to the judgment 
 of Parke, B., in South Yorkshire R. Co. v. Great Northern R. Co., 
 9 Ex. 55, 84, 22 L. J. Ex. 305, 313, and the various other cases cited
 
 922 RICHE V. THE ASHBURY RAILWAY, ETC., CO. 260 
 
 by my late brother Willes and by myself in Taylor v. Chichester and 
 Midhurst R. Co., L. R. 2 Ex., at pp, 375, 389. 
 
 And when we are construing a statute creating and regulating a 
 corporation, it is right to bear in mind that, as Lord Coke says, "It 
 is a maxim in the common law that a statute made in the affirmative, 
 without any negative expressed or implied, doth not take away the 
 common law." 2 Inst. 200. Affirmative words may no doubt be 
 used so as to imply a negative (see Plowden Com., 113), but I take it 
 the general principle is that thus laid down by Cresswell, J., in the 
 Eastern Archipelago Company v. Reg., 2 E. & B., at p. 888, 23 L. 
 J. Q. B. 82, "that to make the words giving an express liberty or 
 right have the effect of controlling or limiting that which would oth- 
 erwise exist, they must be very plain." 
 
 I now come to consider the construction of the act of 1862, under 
 which the present company is formed. The sections of the act of 
 1862 bearing on the present case seem to me to be only sections 6, 8, 
 9, 10 and 12. 
 
 By the sixth section of the act of 1862, any seven persons may, by 
 subscribing their names to a memorandum of association, and other- 
 wise complying with the requisitions of this act in respect of registra- 
 tion, form an incorporated company with or without limited liability. 
 
 The eighth, ninth and tenth sections provide that the memorandum 
 of association shall contain the objects for which the proposed com- 
 pany is to be established. 
 
 The twelfth section provides that the company may make certain 
 specified alterations in the memorandum of association, not including 
 a change in the objects for which the company is to be established, 
 and then, in express negative words provides that, "save as aforesaid^ 
 no alteration shall be made in the conditions contained in the memo- 
 randum of association." 
 
 The objects of the proposed company must, therefore, always re- 
 main the same, and that has, I think, two important effects: First, 
 I think that if the company as a body proposes to do anything beyond 
 these objects, any one dissentient shareholder (who has not preclnded 
 himself from doing so) may prevent it from doing so. 
 
 Secondly. No person can be entitled to fix the company with a 
 contract made by the board for any purpose beyond those objects, oh 
 the ground that the board had an ostensible or apparent authority to 
 make contracts of that kind, but must, in order to fix the company, 
 at least prove an actual authority given to the board to make the par- 
 ticular contract he seeks to enforce. 
 
 Now, if I thought that it was at common law an incident to a corpo- 
 ration that its capacity should b,e limited to the extent conferred on it 
 by the instrument creating it, I should agree that the capacity of a 
 company incorporated under the act of 1862 was limited to the ob- 
 jects in the memorandum of association. But if I am right in the 
 opinion which I have already expressed, that the general power of 
 contracting is an incident to a corporation which it requires an indi- 
 cation of intention in the legislature to take away, I see no such indi-
 
 260 THEORIES OF CORPORATE CAPACITY. 923 
 
 cation here. There are not even affirmative words, those used in 25 
 of 7 and 8 Viet., ch. no, to which I shall now refer, having been (I 
 presume advisedly) not repeated. 
 
 The 7 and 8 Viet., ch. no, 25, enacts that from the date of the 
 certificate the shareholders shall be incorporated "by the name of the 
 company as set forth in the deed of settlement, and for the purpose of 
 carrying on the trade or business for which the company was formed, 
 but only according to the provisions of this act, and of such deed as 
 aforesaid." And then express powers are given to the company to 
 enter into contracts for any "necessary purpose of the company." 
 
 I think if the question was whether the legislature had conferred on 
 a corporation created under this act capacity to enter into contracts 
 beyond the provisions of the deed, there could be only one answer. 
 The legislature did not confer such capacity. 
 
 But if the question be, as I apprehend it is. whether the legislature 
 have indicated an intention to take away the power of contracting, 
 which at common law would be incident to a body corporate, and not 
 merely to limit the authority of the managing body and the majority 
 of the shareholders to bind the minority, but also to prohibit and make 
 illegal contracts made by the body corporate in such a manner that 
 they would be binding on the body if incorporated at common law, I 
 think the answer should be the other way. There certainly is ground 
 for suspecting that the person who framed the act, 7 and 8 Viet., ch. 
 1 10, thought that the corporation would have no other powers than 
 those thus expressly given to it, and perhaps meant to restrict its pow- 
 ers accordingly, but when we remember the canon of construction 
 that affirmative words do not take away the common law right, I 
 think he has not used words sufficient to effect such a purpose. It 
 would be different if negative words had been used, and it had been 
 said that the company should not do any other acts than those neces- 
 sary for the purpose for which it is formed. 
 
 The two acts, 7 and 8 Viet., ch. no, and the act of 1862, are so 
 much in pari materia, that if it had been settled by judicial construc- 
 tion that a company under 7 and 8 Viet., ch. no, was forbidden to 
 make any contract for objects beyond those specified in the deed, I 
 should endeavor to put the same construction on the act of 1862, un- 
 less the change in the language showed an intention in the legislature 
 to alter the law. 
 
 There are many dicta in courts of equity worthy of great respect, 
 which indicate an opinion not only that such acts are beyond the au- 
 thority of the board, or even of a majority of the shareholders, but 
 also that they are beyond the capacity of the company, though unani- 
 mous. 
 
 These are worthy of great attention, but I can find no case in which 
 it has been decided that a contract so made or ratified by the whole 
 company that it would have bound the company in its corporate ca- 
 pacity (but for the provisions of the statute) has, either at law or in 
 equity, been held void on account of the provisions of that act. And 
 I think that the three cases already referred to of Spackman v. Evans,
 
 924 RICHE V. THE ASHBURY RAILWAY, ETC., CO. 260 
 
 L. R. 3 H. L. Cas. 171; Evans v. Smallcombe, L. R. 3 H. L. 
 Cas. 249, and Houldsworth v. Evans, L. R. 3 H. L. Cas. 263, all 
 decided in the house of lords, are at least authorities for the contrary 
 doctrine. * * * 
 
 I think, for the reasons I have above given, that in this case the 
 unanimous shareholders have, in fact, assented to the ratification under 
 the seal of the company of this contract, and that such a ratification, 
 at all events, makes the contract binding on the company in its cor- 
 porate capacity. 
 
 I think, therefore, that the judgment of the court below should be 
 affirmed. 
 
 Note. General capacity. While the rule of special capacities is verbally 
 almost universally adhered to, there is a tendency, especially in the decisions 
 of the state courts, when no public interest or policy is specially involved, 
 and creditors' rights are not affected, practically to allow a general capacity 
 to do everything in every way an individual could do, within the field covered 
 by the business in which the corporation was organized to engage. As was 
 stated in 1851, by Willard, P. J., in Conro v. Port Henry Iron Co., 12 Barb. 
 (N. Y.) 27, 53, "modern decisions tend to assimilate the actions, rights, du- 
 ties and liabilities of corporations to those of individuals and commercial 
 partnerships;" or as stated in 1857, in Shrewsbury & B. R. Co. v. N. W. R. 
 Co., 6 H. L. Cases 113, "Prima facie all corporate bodies are bound by con- 
 tracts under their common seal, but this prima facie power to contract can not 
 be insisted on as to matters where, from the nature of the corporate body or 
 the object of its incorporation, it is expressly or impliedly, 'by reasonable in- 
 ference,' prohibited from contracting. A contract as to such matters is ultra 
 vires." So, too, in 1859, Lord Wensleydale, in Scottish N. E. R. Co. v. Stew- 
 art, 3 Macq. H. L. Cas. 382, said : "There can be no doubt that a corporation 
 is fully capable of binding itself by any contract, except when the statutes 
 by which it is created or regulated expressly or by necessary implication pro- 
 hibit such contract between the parties. Prima facie all its contracts are 
 valid, and it lies on those who impeach any contract to make out that it is 
 bad." And in 1887, Lord Selborne said in A.-G. v. Great Eastern R. Co., 
 5 App. Cas. 478, "The doctrine of ultra vires is one which ought to be 
 reasonably and not unreasonably applied, and whatever may fairly be re- 
 garded as incidental to or consequential upon those things which the legisla- 
 ture has authorized, ought not (unless expressly prohibited) to be held by ju- 
 dicial construction to be ultra vires." 
 
 Cook Corporations, 4th ed., 1898, 3, states the modern tendency more 
 broadly than other writers, and perhaps too broadly. He says : "The theory 
 of a corporation is that it has no powers except those expressly given or neces- 
 sarily implied. But this theory is no longer strictly applied to private corpo- 
 rations. A private corporation may exercise many extraordinary powers, 
 provided all of its stockholders assent and none of its creditors are injured. 
 There is no one to complain except the state, and the business being entirely 
 private, the state does not interfere. * * * The old theory of a corporation 
 was that it could not legally do anything in excess of its express or implied 
 powers. But the modern view is that a private corporation may, if all its 
 stockholders assent and if creditors are paid. Public policy does not require 
 business corporations to confine themselves strictly within the limits of the 
 words of their charter." He cites particularly, 1879, Kent v. Quicksilver 
 Mining Co., 78 N. Y. 159, 186; 1896, Bath Gaslight Co. v. Claffy, 151 N. Y. 24. 
 29-31, 33, 34, 37; 1897, Augusta, etc., R. Co. v. City Council, 100 Ga. 701, 28 
 S. E. Rep. 126; 1897, Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. Rep. 289. ' 
 
 This lattercase holds that "none but a person directly interested in the corpo- 
 ration or the state can question such [corporate] authority;" and the follow- 
 ing cases seem to support this doctrine: 1860, Natoma, etc., Co. v. Clarkin,
 
 26l CLASSES OF CORPORATE POWERS. 925 
 
 14 Gal. 544; 1876, Grant v. Henry Clay, etc., Co., 80 Pa. St. 208; 1878, Na- 
 tional Bank v. Whitney, 103 U. S. 99; 1883, Hovelman v. Kansas City, etc., 
 Co., 79 Mo. 632; 1884, Alexander v. Tolleston Club, 110 111. 65; 1886, Baker v. 
 North West, etc., Loan Co., 36 Minn. 185; 1889, Fritts v. Palmer, 132 U. S. 
 282; 1893, Prescott Nat'l Bank v. Butler, 157 Mass. 548; 1898, Rogers v. R. 
 Co., 33 C. C. A. 517, 91 Fed. Rep. 29'.; 1898. South & N. A. R. Co. v. High- 
 land Ave., etc., 119 Ala. 105, 24 So. Rep. 114; 1898, Chapman v. Iron Clad R. 
 Co., 62 N. J. L. 497, 41 Atl. Rep. 690; 1898, Bishop v. Kent & Stanley Co., 20 
 R. I. 680, 41 Atl. Rep. 255; 1898, Miller v. American Tobacco Co., 55 N. J. Eq. 
 352, 42 Atl. Rep. 1117 ; 1899, Union Trust Co. v. M. L. H. Co., 189 Pa. St. 263, 
 42 Atl. Rep. 129; 1899, Murphy v. Arkansas & L. L. & I. Co. (C. C. Ark.), 97 
 Fed. Rep. 723; 1899, Colorado Springs Co. v. Am. Pub. Co. (C. C. A. Colo.), 97 
 Fed. Rep. 843; 1899, International B. & L. Assn. v. Wall, 153 Ind. 554, 55 .>. 
 E. Rep. 431 ; 1900, Burke Land & L. S. Co. v. Wells F., etc., Co., Idaho , 
 60 Pac. Rep. 87; 1900, City of Spokane v. Amsterdamsch T. K., 22 Wash. 172, 
 60 Pac. Rep. 141. 
 
 Late cases hold also that the state will not object except when some special 
 public interest is injuriously affected: 1836, State v. Essex Bank, 8 Vt. 489; 
 1860, Bissell v. Mich. So. R. Co., 22 N. Y. 258, 289; 1879, State v. Oberlin B. 
 & L. Assn., 35- Ohio State 258; 1889, State v. Minnesota Thresher Co., 40 
 Minn. 213; 1890, People v. North River S. R. Co., 121 N. Y. 582,supra, p. 100; 
 1890, Martin v. Niagara Falls Co., 122 N. Y. 165; 1892, Oliver v. Gilmore (C. 
 C. Mass.), 52 Fed. Rep. 562; 1892, Edgar Collegiate Institute v. People, 142 
 111. 363; 1896, State v. Janesville Water Co., 92 Wis. 496, 501; 1897, Illinois 
 Health Univ. v. People, 166 111. 171; 1898, State v. National School of Oste- 
 opathy, 76 Mo. App. 439. 
 
 These two doctrines that the state alone can complain, and that it will 
 complain only when the public are injuriously affected with the extension of 
 the doctrine of implied powers indicated below, leave but little of the old doc- 
 trine of special capacities, and approximate to the doctrine of general capacity 
 an unwise extension in the writer's opinion. 
 
 ARTICLE II. CLASSES OF CORPORATE POWERS. 
 
 Sec. 261. I. Incidental powers those tacitly annexed without 
 any express words to every corporation duly created. These 
 are: 
 
 (i)To have perpetual succession during the period for which the 
 corporation is created. 
 
 (2) To have a corporate name and to contract, to grant and re- 
 ceive, and to sue and be sued thereby. 
 
 (3) To purchase and hold real and personal property for the pur- 
 poses authorized by the charter. 
 
 (4) To have and use a common seal. 
 
 (5) To make by-laws. 
 
 (6) To remove members or officers, under some circumstances, 
 called the power of disfranchisement (in case of removal of mem- 
 bers) and amotion (in case of removal of officers). 2 Kent Comm., 
 277, 278; i Blackstone's Comm., ch. 18. Supra, Warner v. Beers, 
 p. 2; Thomas v. Dakin, p. 19; Sutton's Hospital Case, p. 264; 
 and the cases following, under the next title.
 
 926 THE PEOPLE V. THE PULLMAN'S PALACE CAR CO. 262 
 
 Sec. 262. 2. Express powers, such as are specifically enumer- 
 ated in the charter or general law, and constitutionally granted 
 therein, together with such as are lawfully inserted in the ar- 
 ticles of incorporation. 
 
 3- Implied powers, such as are reasonably necessary or 
 proper for the execution of the powers expressly granted, and 
 not expressly or impliedly excluded. 
 
 THE PEOPLE v. THE PULLMAN'S PALACE CAR COMPANY. 1 
 
 1898. IN THE SUPREME COURT OF ILLINOIS. 175 111. Rep. 
 
 125-182. 
 
 [Quo ivarranto against the car company specifying twenty-five 
 usurpations of power by the defendant, justifying as alleged a for- 
 feiture of the corporate franchises. Pleas were put in by the defend- 
 ant alleging other facts by way of answer to the complaint. Demur- 
 rers to the various pleas admitted the allegations of fact.] 
 
 BOGGS, J. * * * A corporation in our state has its existence 
 by virtue of the enactment, general or special, of the law-making 
 power. The appellee corporation was created by a special act of the 
 general assembly. The only difference between a corporation organ- 
 ized under a general law and one created by a special statute is, 
 "that in the former we look to the certificate of the promoters, while 
 in the latter we look to the special statute to ascertain the scope of the 
 powers of the corporation." The rule for construing the instruments 
 must necessarily be the same, viz., the powers specifically enumer- 
 ated, and such other powers as are incidental or necessary to carry 
 those powers into effect, but none others may be exercised by the cor- 
 poration. Rockhold v. Canton Masonic Benevolent Society, 129 
 111. 440. 
 
 The enactment creating the appellee corporation is the full meas- 
 ure of its power. In order to enable it to carry into execution the 
 powers thus conferred it may exercise other powers, known to the 
 law as incidental or implied powers. Implied powers exist only to 
 enable a corporation to carry out the express powers granted that 
 is, to accomplish the purpose of its existence and can in no case 
 avail to enlarge the express powers, and thereby warrant it to devote 
 its efforts and capital to other purposes than such as its charter ex- 
 pressly authorizes, or to engage in collateral enterprises not directly 
 but only remotely connected with its specific corporate purposes. A 
 power which the law will regard as existing by implication must be 
 one in a sense necessary that is, needful, suitable and proper to ac- 
 complish the object of the grant and one that is directly and immedi- 
 ately appropriate to the execution of the specific powers, and not one 
 that has but a slight, indirect or remote relation to the specific pur- 
 
 1 Facts sufficiently stated in the opinion. Arguments and much of the pre- 
 vailing and dissenting opinions omitted.
 
 262 CLASSES OF CORPORATE POWERS. 927 
 
 poses of the corporation. Illinois Conference Female College v. 
 Cooper, 25 111. 133; Caldwellv. City of Alton, 33 111. 416; Chicago, 
 Pekin and Southwestern R. Co. v. Town of Marseilles, 84 111. 643 ; 
 Chicago Gas Light Co. v. People's Gas Light Co., 121 111. 530; 
 Mott v. Danville Seminary, 129 111. 403; People v. Chicago Gas 
 Trust Co., 130 111. 268; North Side R. Co. v. Worthington (Tex.), 
 30 S. W. Rep. 1055; Field Corporations, 53, 54; IV Thompson 
 Law of Corp., 5638; 2 Beach Private Corp., 385; Green's 
 Brice's Ultra Vires, 88, 89. 
 
 Keeping these definitions as to implied powers in view, we may 
 proceed to determine whether the acts set forth in the pleas are within 
 or beyond the measure of power possessed by the appellee company. 
 
 It appears from the averments of those pleas which are intended to 
 answer the allegations of the information set forth hereinbefore as 
 Nos. 2, 3, 4, 5> 6, 7, 8, 9, 10, n, 12, 13 and 24, that the defendant 
 company about the year 1880 acquired and now holds a certain tract 
 of land containing about eighty-three acres, on a portion of which, in 
 the year 1880 at least not later than 1882 it caused to be constructed 
 a large number of dwellings and tenement houses, some of the height 
 of two stories and others three stories in height ; that the total num- 
 ber of such buildings is twenty-two hundred, and that it has laid out 
 and now maintains the usual and necessary streets and alleys to afford 
 the tenants to whom it rents said dwellings and tenement houses 
 the proper and usual means of ingress and egress to and from their 
 homes and places of business; that it now rents said dwellings and 
 tenements to its employes ; that upon the same plat of ground upon 
 which said dwellings and tenements stand and where said streets and 
 alleys are located, it caused to be erected a number of school-houses, 
 'a church edifice, a hotel, a large building called "The Arcade," in 
 which are a number of rooms, some of which were constructed to be 
 rented for dry goods, grocery and other retail stores, and other of the 
 rooms were built for school, lecture and theatre rooms and for the use 
 of religious congregations for church purposes, and that it now rents 
 the rooms in said "Arcade" for the various purposes for which they 
 were intended when built ; that it has also constructed on the same 
 plat of ground a large building called "Market Hall," the lower floor 
 whereof it caused to be fitted up for meat and vegetable markets, and 
 it has rented and now rents them to retail dealers in such articles of 
 food, and the tipper floor is a large hall where concerts, dances and 
 other entertainments may be given, and is rented by it for such pur- 
 poses; that it maintains a system of water-works and sewers and a 
 gas plant, and for a consideration supplies those who inhabit its houses 
 with water, light and heat. * * * 
 
 Manifestly the acts of the corporation which have resulted in the 
 creation of this town or city and its acts in connection with the streets, 
 alleys, dwellings, tenements, school, church and business houses, 
 water system, sewerage, heat, etc., which the plea admits it was per- 
 forming at the time of the filing of the information, can not be re- 
 garded as the exercise of powers expressly given. Can they be justi-
 
 928 THE PEOPLE V. THE PULMAN'S PALACE CAR CO. 262 
 
 fied as the proper exercise of powers incidental to the express powers 
 possessed by the corporation, or by the provision in the sixth clause 
 of the charter that it may be lawful for the corporation to acquire and 
 hold such real estate as may be deemed necessary for the successful 
 prosecution of its business ? The declaration of the sixth clause is not 
 that the company may acquire and hold such real estate as it or its 
 directory may deem necessary, but such as may be deemed necessary 
 to the successful prosecution of its business. The true meaning of 
 this clause is not that the company or its governing body is vested 
 with unlimited and unbridled power to acquire and hold such real 
 estate as it may deem necessary, but with power to purchase and hold 
 only such real estate as, under the rules of law, may be deemed nec- 
 essary for the successful prosecution of its business. "The rule of 
 construction, when any doubt arises out of any language employed in 
 such a charter, is, that every power that is not clearly granted is with- 
 held, and that any ambiguity in the terms of the grant must operate 
 against the corporation and in favor of the public." (American 
 Trust Co. v. Minnesota and Northwestern Railroad Co., 157 111. 641.; 
 Illinois Health University v. People, 166 111. 171.) "Irrespective of 
 the operation of statutory restrictions, it is a settled principle of Amer- 
 ican jurisprudence that a corporation can not take and hold land ex- 
 cept in so far as reasonably necessary to carry out the objects of its 
 creation. These bodies, which never die, are not allowed, against 
 the objection of the state, to take and hold land for purposes wholly 
 foreign to the purposes for which the state endowed them with corpo- 
 rate existence and the power of perpetual succession." 5 Thomp- 
 son's Law of Corp., 5772. 
 
 This court has declared that it is against the public policy of this 
 state to allow corporations to own real estate beyond what is necessary 
 for the transaction of their corporate business, or such as is acquired 
 in the collection of debts. (Carroll v. City of East St. Louis, 67 111. 
 568; United States Trust Co. v. Lee, 73 111. 142.) And in further- 
 ance of this declared public policy statutes have been enacted by the 
 general assembly, requiring all corporations which have acquired 
 lands in the collection of debts to sell and dispose of all that is not 
 necessary to the purposes of the corporation, and providing remedies 
 designed to coerce compliance with such requirements. Revised 
 Statutes, section 517, chapter 32, entitled "Corporations." * * * 
 
 With a view of showing that the situation at the time justified the 
 course pursued by the company, and was sufficient to invest it with 
 the legal right to pursue such course, the appellee company filed pleas 
 averring, in substance, as follows: That after it had been for several 
 years in the exercise of the powers conferred by its charter, its busi- 
 ness increased to such an extent that it became necessary for it to build 
 large and extensive shops in which to manufacture cars ; that a large 
 amount of land was necessaiy on which to locate such shops ; that it 
 was decided to locate and build said shops in the county of Cook, in 
 or near the city of Chicago, where its general offices and headquarters 
 were, and where its principal officers resided ; that it found that it
 
 262 CLASSES OF CORPORATE POWERS. 929 
 
 couid not acquire a sufficient amount of land upon which to erect said 
 shops within the city of Chicago on account of the high price of land 
 in said city; that after diligent and careful inquiry as to the price of 
 land and the means of access thereto, it decided to build its shops 
 where they are now situated. * * * 
 
 [It is claimed that] : "Accordingly, in the exercise of its best 
 judgment, appellee selected and purchased about 350 acres of land 
 situated upon the shores of Lake Calumet, fourteen miles distant from 
 its offices and ten miles beyond the then limits of the city of Chicago. 
 The land at that time was practically an unoccupied waste. It was 
 surrounded for a very considerable distance in all directions save to- 
 ward the lake, by farming and unoccupied lands. There were no con- 
 venient places where employes of the company could find homes or 
 dwelling places. The construction of the manufactory therefore in- 
 volved, not the expediency simply, but the necessity, of providing 
 places suitable for the occupancy of those who were to do its work. 
 The manufactory and the homes for the workmen were mutually and 
 equally necessary to the success of the enterprise. 'The power to 
 manufacture cars' was barren without the other charter power 'to pur- 
 chase, acquire and hold such real estate as may be deemed necessary.' 
 It was only by the combination of the two by their exercise together, 
 in the manner which has been described that the object of the charter, 
 'the successful prosecution of their business,' could be accomplished. 
 Accordingly, the exercise of these powers was undertaken cotempora- 
 neously. The construction of the works and the construction of the 
 dwelling places of those who were to operate them was undertaken at 
 the same time and as a part of a single, harmonious scheme. Two 
 years of time and the labor of 4,000 men transported daily to and fro 
 between Chicago and the point of location, were devoted to the work. 
 At the expiration of that time the result appeared in the completed 
 structures of a manufactory giving employment to 5,000 persons, and 
 in its immediate vicinity dwelling houses sufficient in number for the 
 comfortable occupancy of a large part of these persons with their fam- 
 ilies and those dependent upon them, with the necessary school-houses 
 for the education of their children, churches for their religious in- 
 struction, stores and shops where the necessaries of life could be pro- 
 cured, halls suitable for lectures and social entertainments all so ar- 
 ranged with such accessories of streets, parks and other provisions, as 
 to minister not simply to the necessities, but also to the comfort and 
 well-being of those who might be employed." 
 
 The averment of the plea the corporation was obliged to construct 
 such houses and tenements is but the statement of a conclusion, and 
 we find the facts pleaded do not justify such a deduction. No reason 
 existed, nor do we find in the pleas even a suggestion that there was 
 reason or ground, for the apprehension that individual enterprise and 
 private capital would not at once, after the purpose and intention of 
 the corporation became known, provide all necessary dwellings and 
 tenements for the accommodation of the workmen, or that the wants 
 59 WIL. CASKS.
 
 930 THE PEOPLE V. THE PULLMAN'S PALACE CAR CO. 262 
 
 of the community composed of such workmen would not at once be 
 met by the location in its midst of schools, churches, dry goods and 
 grocery stores, meat markets, etc., or that the necessary streets, alleys, 
 and public ways would not be provided without any intervention 
 whatever on the part of the corporation. The public laws of the 
 state would have supplied the requisite school-houses and teachers, 
 and the inclinations of the individual members of the community 
 could have been safely relied upon to provide church houses and 
 rooms for imparting religious instruction. It is idle to argue it be- 
 came in any sense necessary or directly appropriate to the accomplish- 
 ment of the lawful and chartered purposes or objects of the corpora- 
 tion it should engage its efforts or capital in the construction of dwell- 
 ings, tenement houses, store houses, streets, alleys, theaters, hotel, 
 churches, school-houses, water-works, a system of sewers, etc. Work- 
 men, if they have families, must have homes, or if unmarried must 
 be accommodated with boarding and places of lodging. Homes, 
 groceries, vegetables, bread, meat, clothing, furniture, light, heat, 
 water, school books, medicine, the services of physicians, dentists 
 and other professional men, and many other things, become necessary 
 to the health, comfort, or convenience of such workmen and their 
 families ; but the right and power to supply such wants had, in this 
 instance, so far as the pleas show, no direct relation or connection 
 with the successful prosecution of the specific object of the appellee 
 corporation. The relation was but remote, indirect and mediate, 
 not direct and immediate. Implied power can not be invoked to 
 authorize a corporation to engage in collateral enterprises but remotely 
 connected with the specific purposes it was created to accomplish. 
 A power which a corporation may exercise by implication must be 
 bounded by the purposes of the corporate existence and the terms and 
 intention of the charter, and acts which tend only remotely and by 
 indirection to promote its interests and chartered objects can not be 
 justified by implication of law, but are ultra vires. 
 
 Cases cited holding corporations operating mines or mills engaged 
 in sawing lumber had implied power to construct dwellings and 
 boarding-houses for their employes can have little or no influence 
 upon the question here presented. In those cases the fact the works 
 or mills of the corporation were necessarily located at mines or near 
 large forests, and other circumstances peculiar to the respective cases, 
 were deemed sufficient to justify the corporations in arranging for the 
 lodging or boarding of their workmen or in building homes to shelter 
 them and their families. The circumstances in each of such cases as 
 can be accepted as having been well considered, were such it became, 
 in a legal sense, necessary to the accomplishment of the chartered 
 purposes of, the corporation that it should exercise such power as was 
 accorded it by implication of law. Exceptional circumstances or ex- 
 traordinary conditions may make it necessary to the proper prosecu- 
 tion of the business of a corporation that it shall be accorded implied 
 power to perform acts beyond its express power, and which, except 
 for the prevailing conditions, would be wholly unwarranted. But in
 
 262 CLASSES OF CORPORATE POWERS. 931 
 
 the case in hand the appellee corporation voluntarily assumed to de- 
 vote its corporate capital and power to that which, to say the least, 
 but remotely and indirectly tended to aid the accomplishment of the 
 purposes it had the right to pursue under conditions and circumstances 
 which were heither rare nor unusual. 
 
 The argument of counsel for appellee that the construction of the 
 manufacturing plant involved, not the expediency simply, but the ne- 
 cessity of providing places suitable for the occupancy of those who 
 were to do its work, "and that in view of this the company deter- 
 mined to undertake, and did undertake, to construct its works and 
 dwelling places for its workmen at the same time and as a part of a 
 single harmonious plan," is fallacious. It ignores the palpable fact 
 that no duty of providing houses for its workmen was pressed upon 
 the company by surrounding conditions or circumstances as a neces- 
 sity, but was adopted as a matter of choice, based, it may have been, 
 upon motives which were in part benevolent or charitable in their 
 nature. Had it purchased only that quantity of ground needful for its 
 proper corporate uses, and restricted its efforts and expenditures to 
 the construction of such buildings as would have answered its corpo- 
 rate wants, there appears to us no reason to believe that the question 
 of homes for its workmen, market places or stores where such work- 
 men could purchase supplies, or school rooms where their children 
 could receive instruction, or the making of streets and alleys, would 
 ever have demanded the thought or attention of its governing body. 
 It is beyond reason to conclude that had the way been left open pri- 
 vate capital and individual enterprise would have overlooked this de- 
 sirable field of operations, or that merchants, tradesmen, butchers and 
 other classes of business men would not have appeared and entered 
 into business rivalry for the custom of the workmen and their fami- 
 lies, and that the prosecution of the business of the corporation would 
 have suffered because its workmen could not find homes or places 
 where the articles necessary to supply their wants and add to their 
 comfort could be purchased, and yet it is upon this ground it is sought 
 to justify the acts of the corporation which are now under considera- 
 tion. 
 
 The prohibition of the law against the unauthorized exercise of 
 power by corporations is based upon grounds of public policy, and 
 the wisdom of the rule may here find exemplification. Conceding the 
 rectitude of the purpose which it is alleged operated to induce the 
 acts of the corporation which resulted in the creation of the town or 
 city of Pullman, we are constrained to declare the corporation had 
 not lawful power to perform such acts, and that the existence of a 
 town or city where the streets, alleys, school-houses, business houses, 
 sewerage system, hotels, churches, theaters, water-works, market 
 places, dwellings and tenements are the exclusive property of a cor- 
 poration is opposed to good public policy, and incompatible with the 
 theory and spirit of our institutions. It is clearly the theory of our 
 law that streets, alleys and public ways, and public school buildings, 
 should be committed to the control of the proper public authorities,
 
 932 THE PEOPLE V. THE PULLMAN'S PALACE CAR CO. 262 
 
 and that real estate should be kept as fully as possible in the channels 
 of trade and commerce, and good public policy demands that the 
 number of persons who should engage in the business of selling such 
 articles as are necessary to the support, maintenance and comfort of 
 the people of any community should not be restricted by the will of 
 any person, natural or artificial, but should be left to be determined 
 by the healthy, wholesome and natural operations of the rules of trade 
 and business, free from all that which tends to stifle competition and 
 foster monopolies. 
 
 We think the averments of the plea in response to the allegations of 
 the information under consideration were insufficient to present a legal 
 defense. * * * 
 
 [The court held further that the construction and operation of a 
 sewerage system and sewerage farm, with truck gardening thereon, 
 though necessary to the health of the dwellers in Pullman, was not 
 justified by its relation to the usurped power of owning the town of 
 Pullman; that under the express power to "sell supplies" to persons 
 traveling on its cars, it was authorized to sell beer, wine and whisky 
 as beverages ; that the ownership of fifty-five acres of vacant land, 
 vipon which to dump cinders was lawful ; that the ownership of twen- 
 ty-three acres solely to meet the necessity for additional dwelling 
 houses was unlawful ; that the ownership of twenty-five acres, for the 
 purpose of providing for the proper storage of its cars when needed in 
 the future, was lawful ; that it was lawful to construct very large 
 steam boilers with a view of anticipating its probable future wants, 
 and, in the meantime, until needed, to furnish an adjoining manufac- 
 turing company with steam ; that it is unlawful to hold shares of 
 stock in the Pullman Iron and Steel Company though all its product, 
 being necessary in the construction of cars, is used by the defendant, 
 so that in effect the Steel Company is a mere department of the de- 
 fendant; that the existence of the alleged usurpations for eighteen 
 years, with the knowledge of the state, and the collection of taxes 
 during that time upon the property was not a waiver, nor sufficient to 
 work an estoppel, upon the part of the state.] 
 
 Reversed and remanded. 
 
 CRAIG, WILKIN AND CARTWRIGHT, JJ., dissenting, approved the 
 following statement as to implied powers : 
 
 "It is axiomatic that corporations have not only the powers ex- 
 pressly granted but those which are necessarily implied ; that while 
 they derive all their powers from the legislature which creates them, 
 it is also true that what is fairly implied is as certainly granted as 
 what is expressed ; that unless restrained by their charters they have 
 the power to deal precisely, in carrying out the corporate purposes, 
 as individuals seeking to accomplish the same ends ; that they may 
 'resort to any means that would be necessary and proper for an indi- 
 vidual in executing the same, unless they be prohibited by the terms 
 of their charters or some public law from so doing;' that while, in re- 
 gard to their express powers, the grants are construed most liberally
 
 262 CLASSES OF CORPORATE POWERS. 933 
 
 in favor of the state and most strictly against the corporation, yet in 
 regard to incidental powers neither strict nor liberal, but only reason- 
 able, rules of construction are applied ; that corporations may so far 
 develop and extend their operations as to engage in matters not pri- 
 marily contemplated by their founders, provided these matters be 
 fairly within their scope, and provided, also, that in so developing and 
 extending their undertakings they employ direct, and not indirect, 
 means ; that different rules of construction are to be applied to char- 
 ters of corporations organized under special acts and those organized 
 under a general law, the greater strictness of interpretation being em- 
 ployed in dealing with the latter; that 'necessary,' when used in de- 
 fining the powers of corporations, does not mean what is simply in- 
 dispensable, but also what is useful, convenient and proper to carry 
 into effect the franchises granted, i Spelling on Corp., 68, 73, 
 75, and cases cited; Green's Brice's Ultra Vires, pp. 66, 71, 73, 75, 
 87, 91, and cases cited; Curtis v. Leavitt, 15 N. Y. 9; Union Bank 
 v. Jacobs, 6 Humph. 525; Railroad Co. v. Berks County, 6 Pa. St. 
 70; P. & S. R. Co. v. Lewis, 33 Pa. St. 33; New England Fire 
 and Marine Ins. Co. v. Robinson, 25 Ind. 541 ; Brown v. Winnisim- 
 met Co., ii Allen 326; Old Colony R. Co. v. Evans, 6 Gray 25; 
 McCulloch v. Maryland, 4 Wheat. 316; State v. Hancock, 35 N. J. 
 L. 537; Crawford v. Longstreet, 43 N. J. L. 328 ; Ellerman v. Rail- 
 way Co., 49 N. J. Eq. 217; 2 Cook Stockholders (3d ed.), 68 1." 
 See, also, Madison, etc., Co. v. Watertown, etc., Co., 5 Wis. 173, 
 and Clark v. Farrington, n Wis. 321. 
 
 In the case of Curtis v. Leavitt, 15 N. Y. 9, it was held that cor- 
 porations, along with their specific powers, take all the reasonable 
 means of execution, all that are convenient and adapted to the end in 
 view; that the corporation has a liberty of choice amongst those 
 means, and that if in the exercise of such liberty an intelligent good 
 faith is used, then the power to select the means adopted can not be 
 called in question. 
 
 In State v. Hancock, 35 N. J. L. 537, it was said by Chief Justice 
 Beasley: "Power necessary to a corporation does not mean simply 
 power which is indispensable. Such phraseology has never been in- 
 terpreted in so narrow a sense. There are a few powers which are, 
 in the strict sense, absolutely necessary to those artificial persons, and 
 to concede to them powers only of such a character, while it might not 
 entirely paralyze, would very greatly embarrass their operations. 
 Such in similar cases has never been the legal acceptance of this term. 
 A power which is obviously appropriate and convenient to carry into 
 effect the franchise granted has always been deemed a necessary one." 
 And further said: "The term comprises a grant of the right to use all 
 the means suitable and proper to accomplish the end which the legis- 
 lature had in view at the time of the enactment of the charter." 
 
 Note. (1) Implied powers. 1825, The Banks v. Poitiaux, 3 Rand. (Va.) 
 136, 15 Am. Dec. 706; 1831, Attorney-General v. Stevens, 1 Saxton Ch. (N- 
 J.) 369, 22 Am. Dec. 526; 1840, Commercial Bank v. Newport Mfg. Co., 1 B. 
 Mon. (Ky.) 13, 35 Am. Dec. 171 ; 1848, Mclntire v. Preston, 5 Gfl. (111.) 48,
 
 934 THE PEOPLE V. THE PULLMAN'S PALACE CAR CO. 262 
 
 48 Am. Dec. 321; 1852, State v. Comm'rs, 3 Zabr. CN. J.) 510, 57 Am. Dec 
 409; 1853, Southern Life Ins. & T. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448; 
 1853, Smith v. Nashua, etc., R. Co., 27 N. H. 86, 94, 59 Am. Dec. 364; 1859, 
 Philadelphia, etc., R. v. Lewis, 33 Pa. St. 33, 75 Am. Dec. 574; 1859, Hope 
 Mut. Life Ins. Co. v. Weed, 28 Conn. 51, 63; 1860, Miles v. Gleason, 11 Wis. 
 470, 78 Am. Dec. 721 ; 1860, Downie v. White & Hoover, 12 Wis. 174, 176, 78 
 Am. Dec. 730, 731; 1862, Bardstown, etc., R. Co. v. Metcalf, 4 Metcf. (Ky.) 
 199, 81 Am. Dec. 541; 1863, Olcott v. Tioga R. Co., 27 N. Y. 546, 84 Am. Dec. 
 298; 1865, Brown v. Winnissimmet, 11 Allen (Mass.) 326,334; 1867, Cleve- 
 land, etc., R. Co. v. Speer, 56 Pa. St. 325, 94 Am. Dec. 84; 1867, Pixley v. 
 Western Pac. R. Co., 33 Cal. 183, 91 Am. Dec. 623; 1871, State v. Hancock, 35 
 N. J. L. 537, 545; 1877, Low v. Central Pac. R., 52 Cal. 53, 28 Am. Rep. 629; 
 1878, Deringer v. Deringer, 5 Houst. (Del.) 416, 1 Am. St. Rep. 150; 1880, 
 Attorney-General v. Great East. R. Co., L. R. 5 App. 473; 1883, Liebke v. 
 Knapp, 79 Mo. 22, 49 Am. Rep. 212; 1884, London Finan. Assn. v. Kelk, L. 
 R., 26 Ch. Div. 107; 1885, Graber v. Washington, etc., R. Co., 92 N. C. 1; 
 1885, Sutro Tunnel Co. v. Segregated B. M. Co., 19 Nev. 121; 1887, Elevator 
 Co. v. Memphis, etc., R. Co., 85 Tenn. 703, 4 Am. St. Rep. 798; 1889, People 
 v. Chicago, etc., T. Co., 130 111. 268, 17 Am. St. Rep. 319; 1890, Killingsworth 
 v. Portland Trust Co., 18 Ore. 351, 17 Am. St. Rep. 737; 1891, Ellerman v. 
 Chicago Jc. R. Co., 49 N. J. Eq. 217; 1892, Richelieu Hotel Co. v. Internat'l 
 Mill En. Co., 140 111. 248, 33 Am. St. Rep. 234; 1894, Fort Worth City v 
 Smith Bridge Co., 151 TJ. S. 294, 44 Am. & E. C. C. 604; 1894, Wheeler Os- 
 good, etc., Co. v. Everett L. Co., 14 Wash. 630; 1895, B. S. Green Co. v. 
 Blodgett, 159 111. 169,50 Am. St. Rep. 146; 1895, Northside R. Co. v. Worth- 
 ington, 88 Texas 562, 53 Am. St. Rep. 778, n. 789; 1895, Jacksonville, etc., R. 
 Co. v. Hooper, 160 U. S. 514; 1896, Bath Gas Light Co. v. daffy, 151 N. Y. 
 24; 1897, Winterfield v. Cream Brewing Co., 96 Wis. 239; 1897", MaJone v. 
 Lancaster L. Co., 182 Pa. St. 309; 1898, Nicollet Nat'L Bank v. Frisk-Turner 
 Co., 71 Minn. 413, 70 Am. St. 334; 1899, Central Ohio Natural Gas Co. v. Cap- 
 ital City Dairy Co., 60 Ohio St. 96 ; 1899, Parkman Sugar Co. v. Bank, etc., Co., 
 60 Kan. 474, 57 Pac. Rep. 126; 1899, State v. Newman, 51 La. Ann. 833, 72 
 Am. St. Rep. 476; 1899, Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 
 46 L. R. A. 255. 
 (2) Rules of construing- corporate charters. 
 
 1. The cardinal rule here, as in all cases, is to ascertain the legislative in- 
 tent, and give it full effect. 1836, Middle Bridge Proprietors v. Brooks, 13 
 Maine 391, 29 Am. Dec. 510; 1846, Enfield T. B. Co. v. H. & N. R. Co., 17 
 Conn. 454, 44 Am. Dec. 556; 1848, Mayor, etc., v. B. & O. R. Co., 6 Gill (Md.) 
 288, 48 Am. Dec. 531 ; 1854, Boston & L. R. Co. v. Salem & L. R. Co., 2 Gray 
 (68 Mass.) 1; 1855, Straus, etc., v. Eagle Ins. Co., 5 Ohio State 59. 61 ; 1858, 
 State v. Passaic T. P. Co., 27 N. J. Law 217; 1859, Pennock v. Coe, 23 How. 
 (64 U. S.) 117; 1859, State v. Noyes, 47 Maine 189; 1860, Hartford Bridge Co. 
 v. Union Ferry Co., 29 Conn. 210; 1862, Moran v. Miami Co. Comm'rs, 2 
 Black (67 U. S.) 722; 1869, Home of Friendless v. Rouse, 8 Wall. (75 TJ. S.) 
 430; 1887, Lawrence v. Morgan, etc., Co., 39 La. Ann. 427, 4 Am. St. Rep. 
 265; 1888, West Branch, etc., Co. v. Lumber, etc., Co., 121 Pa. St. 143,6 Am. 
 St. Rep. 766. 
 
 2. With the exceptions noted below, the language granting corporate pow- 
 ers should neither be construed strictly nor liberally, but according to its fair 
 and natural import, with reference to the purposes and objects of the corpo- 
 ration ; the whole law should be considered, and the words given their ordi- 
 nary meaning, unless custom or usage has clearly given them a different one. 
 1846, Enfield T. B. Co. v. H. & N. R. Co., 17 Conn. 454, 44 Am. Dec. 531; 
 1853, Belleville, etc., R. Co. v. Gregory, 15 111. 20, 58 Am. Dec. 589; 1855, 
 Straus v. Eagle Ins. Co., 5 Ohio State 59; 1859, Dexter Lime-Rock Co. v. 
 Dexter, 6 R. I. 353; 1860, Downing v. Mt. Washington R. Co., 40 N. H. 
 230; 1865, The Binghamton Bridge, 3 Wall. (70 U. S.) 51; 1865, Brown v. 
 Winnisimmet Co., 11 Allen (Mass.) 326, 334; 1876, State v. Fla. Cent. R. Co., 
 15 Fla. 690, 699; 1878, Whitaker v. Canal Co., 87 Pa. St. 34, 37; 1880, Atty.- 
 Gen'l v. Great East. R. Co., L. R., 5 App. 473; 1880, Fairchild v. Masonic
 
 262 CLASSES OF CORPORATE POWERS. 935 
 
 Hall Assn., 71 Mo. 526; 1884, National Bank v. Continental L. Ins. Co., 41 
 Ohio St. 1, 13; 1891, Ellerman v. Chicago Jet. R. Co., 49 N. J. Eq. 217; 
 1892, Riker v. Leo, 133 N. Y. 519, 524; 1895, Jacksonville, etc., R. Co. v. 
 Hooper, 160 U. S. 514, 523 ; 1896, Wheeler v. Everett Land Co., 14 Wash. 
 630, 633; 1900, Inter-Ocean Pub. Co. v. Associated Press, 184 111. 438, 75 Am. 
 St. Rep. 184. 
 
 3. The enumeration of certain powers and privileges, by implication ex- 
 cludes all other unnecessary powers: 1818, People v Utica Ins. Co., 15 Johns. 
 (N. Y.) 358, 383; 1825, N. Y. F. Ins. Co. v. Ely, 5 Conn. 560, 572, 13 Am. Dec. 
 100; 1831, Life, etc., Ins. Co. v. Mech. F. I. Co., 7 Wend. (N. Y.) 31 ; 1850, 
 Perrine v. Ches. & O. Canal Co., 9 How. (50 U. S.) 172, 183; 1852, Talmage 
 v. Pell, 7 N. Y. 328, 345; 1875, Ashbury R., etc., Co. v. Riche, 7 H. L. Rep. 
 653; 1888, State v. Atchison, etc., R. Co., 24 Neb. 143, 8 Am. St. Rep. 164; 
 1889, Case v. Kelly, 133 U. S. 21, 26. 
 
 4. While the rule of statutory construction that general words following 
 special words shall extend to and include only things of a nature similar to 
 .those specially mentioned, is applied in some cases to the construction of cor- 
 porate charters: 1875, Ashbury R., etc., Co. v. Riche, L. R. 7 H. L. Rep. 653; 
 1876, Navigation Co. v. County of Galveston, 45 Tex. 272, 290; 1894, State v. 
 International Inv. Co., 88 Wis. 512, 43 Am. St. Rep. 920; yet it does not seem 
 to be followed in other cases. 1881, Wells F. & Co. v. N. P. R. Co., 23 Fed. 
 Rep. 469, 474; 1889, Brown v. Corbin, 40 Minn. 508; 1889, National Bank v. 
 Texas Inv. Co., 74 Tex. 421, 434; 1894, State v. Corkin, 123 Mo. 56. 
 
 5. When the question is one between the state and the corporation, or when 
 the public interest is involved, "All rights which are asserted against the state 
 must be clearly defined, and not raised by inference or presumption ; and if 
 the charter is silent about a power it does not exist. If on a fair reading of 
 the instrument reasonable doubts arise as to the proper interpretation to be 
 given to it, those doubts are to be solved in favor of the state; and where it 
 is susceptible of two meanings, the one restricting and the other extending 
 the powers of the corporation, that construction is to be adopted which works 
 the least harm to the state." Davis, J., in The Binghamton Bridge, 3 Wall. 
 (70 U. S.) 51 (1865). This rule is applied in 
 
 (a) Cases where the state restricts its own action, as in exemptions from 
 taxation: 1830, Providence Bank v. Billings, 4 Pet. (29 U. S.) 514; 1861, 
 Jefferson Bank v. Skelly 1 Black (66 U. S.) 436; 1878, Railroad Co. v. Gaines, 
 97 U. S. 697; 1881, Bank v. Tennessee, 104 TJ. S. 493; 1885, Chesapeake, etc., 
 R. Co. v. Miller, 114 U. S. 176; 1892, Wilmington, etc., R. Co. v. Alsbrook, 
 146 U. S.279; 1896, Bank of Commerce v. Tennessee, 161 U. S. 134; 1899, 
 Citizens' Sav. Bank v. Owensboro, 173 U. S. 636, 10 Am. & E. C. C. N. S. 540. 
 
 See note, supra, p. 749. 
 
 (6) Cases in which an exclusive privilege or monopoly is claimed: 1837, 
 Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420; 1883, Georgia, 
 etc., R. Co. v. Smith, 70 Ga. 694; 1885, Birmingham, etc., R. Co. v. Birming- 
 ham St. R. Co., 79 Ala. 465, 58 Am. Rep. 615; 1888, Rockland Water Co. v. 
 Camden, etc., Co., 80 Maine 544; 1889, Syracuse Water Co. v. Syracuse, 116 
 N. Y. 167; 1890, State v. Hamilton, 47 Ohio St. 52; 1890, Indianapolis 
 Cable, etc., Co. v. Citizens, etc., R., 127 Ind. 369; 1891, Stein v. Bienville 
 Water Imp. Co., 141 U. S. 67; 1895, Pearsall v. Great Northern R. Co., 161 
 U. S. 646, 664 ; 1900, Adirondack R. Co. v. New York, 176 U. S. 336. 
 
 (c) Cases in derogation of common right, as in the appropriation of private 
 property under eminent domain proceedings, or erecting nuisances, etc. : 
 1848, Moorehead v. Little Miami R. Co., 17 Ohio 340; 1856, Edward v. Law- 
 renceburgh, etc., R. Co., 7 Ind. 711 ; 1860, Downing v. Mt. Washington R. 
 Co., 40 N. H. 230; 1871, N. Y., etc., R. Co. v. Kip, 46 N. Y. 546,7 Am. Rep. 
 385; 1878, Fertilizing Co. v. Hyde Park, 97 TJ. S. 659; 1883, Alabama, etc., 
 R. Co. v. Gilbert, 71 Ga. 591; 1887, Snell v. Buresh, 123 111. 151. 
 
 (d) Cases in derogation of common law : 1872, Moyerv. Penn. Slate Co., 71 
 Pa. St. 293. 
 
 (e) Cases directly interfering with the use of franchises already granted, 
 as one railroad encroaching upon the right of way of another, or of a turn- 
 pike or canal : 1878, Boston, etc., R. Co. v. Lowell, 124 Mass. 368 ; 1880, Penn.
 
 936 THE PEOPLE V. THE PULLMAN'S PALACE CAR CO. 262 
 
 sylvania R. Co.'s Appeal, 93 Pa. St. 150; 1888, Barre R. Co. v. Montpelier, 61 
 Vt. 1, 4 L. R. A. 785; 1888, Appeal of Sharon R., 122 Pa. St. 533, 9 Am. St. 
 Rep. 133; 1891, Cincinnati, etc., R. Co. y. Belle Centre, 48 Ohio St. 273. 
 
 6. General and special laws under which corporations are formed: There 
 seems to be some conflict of expression as to rules of construing charters un- 
 der general laws as compared with the rules when the corporation is created 
 by a special act. Granger, C. J., in National Bank of Wash. v. Ins. Co., 41 
 Ohio St. 1, on p. 11 (1884), says: "A radical change has occurred in the rela- 
 tion of corporations to the state and the people. * * * Special charters 
 granted to persons named * * * gave special powers and rights, that as 
 a rule were beyond legislative control ; only in the rare cases where the power 
 to amend, alter or repeal was expressly reserved could the legislature modify, 
 limit, or take away power once granted. In those days a corporation was a 
 monopoly. It was necessary to strictly construe the grants made in order to 
 protect the interests of the state and of people generally. But now the legis- 
 lature has far more power over corporations than over individuals. It may 
 alter or repeal all acts granting corporate power. * * * There is no 
 longer reason to hesitate to apply to the language of acts of incorporation the 
 same rules of interpretation as applied to like words in any contract or stat- 
 ute." 
 
 On the other hand, in regard to corporations formed under general laws, 
 Justice Miller, in Oregon R. Co. v. Oregonian R. Co., 130 U. S. 1, on p. 26 
 (1888), says: "If the articles of association * * * instead of being the 
 mere adoption by the corporators themselves, of the declaration of their own 
 purposes and powers, had been an act of the legislature * * * conferring 
 such powers on the corporations, they would be subject to the rule above 
 stated (strict construction in favor of the state and against the grantee) and 
 to a rigid construction in regard to the powers granted. How much more, 
 then, should this rule be applied, and with how much more reason should a 
 court, called upon to determine the powers granted by these articles of asso- 
 ciation, construe them rigidly, with the stronger leaning in doubtful cases in 
 favor of the public and against the private corporation." To the same effect 
 is, 1896, Ross-Meehan Brake Shoe F. Co. v. Southern M. I. Co., 72 Fed. Rep. 
 957.
 
 TITLE n. PARTICULAR POWERS AND LIABILITIES. 
 
 CHAPTER 13. 
 
 PARTICULAR POWERS. 
 
 ARTICLE I. PERPETUAL SUCCESSION. 
 
 Sec. 263. See State v. Payne, 129 Mo. 468, supra, p. 830; also, 
 Warner v. Beers, supra, p. 2, and Thomas v. Dakin, supra , 
 
 p. 19. 
 
 ARTICLE II. NAME. 
 
 Sec. 264. See, supra, chapter 9. Smith v. Tallassee Branch, 
 etc., 30 Ala. 650, supra, p. 817; Newby v. Oregon Central 
 R., Deady 609, supra, p. 819; Armington v. Palmer, 42 
 Atl. Rep. (R. I.) 308, supra, p. 820. Note, supra, p. 823. 
 
 ARTICLE III. POWER TO CONTRACT. 
 
 Sec. 265. (A) As to form. 
 
 I. In general: "In determining whether a contract may 
 be enforced against a corporation, three things are to be con- 
 sidered : First, did the corporation have the power to enter 
 into such a contract? Second, was the contract entered into 
 by a duly authorized agent of the corporation? Third, was 
 the contract drawn, signed, and sealed in a form which binds 
 the corporation? 
 
 "A corporation may be bound by a contract which is exe- 
 cuted in any of the following ways : by a written instrument 
 sealed with the corporate seal, and either with or without the 
 
 (937)
 
 938 FRANKLIN CO. V. LEWISTON INST'N FOR SAVINGS. 266 
 
 corporate name signed thereto; by an unsealed written in- 
 strument signed with the corporate name ; by a written record 
 of a resolution of its directors ; by an unwritten resolution of 
 its directors ; by the oral agreements of its authorized agents ; 
 or by ratifying, acquiescing in, or accepting the benefits of 
 contracts made in its name by unauthorized agents." Cook 
 Corporations, 4th ed., part of 704 and 721. See also, 
 supra, 190, 191, 193, 194, 228-238. 
 
 2. As to seal. See, infra, Art. VII., p. 1136. 
 
 Sec. 266. (B) As to subject-matter. 
 
 (i) In general. See, supra, 258262. 
 
 Sec. 267. (2) Contract debts and borrow money. 
 
 See Barry v. Merchants' Exchange Co., I Sandf. Ch. (N. Y.) 
 280, supra, p. 766. 
 
 Note. See, also, 1889, Wright v. Hughes, 119 Ind. 324, 12 Am. St. Rep. 412 ; 
 1890, Woolverton v. Taylor, 132 111. 197, 22 Am. St. Rep. 521 ; 1890, Davis v. 
 Jackson, 152 Mass. 58. See note at end of next case. 
 
 Sec. 268. Same. 
 
 FRANKLIN COMPANY v. LEWISTON INSTITUTION FOR SAVINGS. 1 
 
 1877. IN THE SUPREME JUDICIAL COURT OF MAINE. 68 Maine 
 
 Rep. 43-49. 
 
 [In 1875 the Savings Company subscribed for $50,000 of the cap- 
 ital stock of a manufacturing company, having no money with which 
 to pay for the same. The Franklin Company agreed to pay the sum, 
 take the notes of the Savings Company for the amount, and hold the 
 stock as security. Notes for this amount were duly given, and the 
 stock was issued directly to the Franklin Company as collateral, but 
 not to the Savings Company, or with its knowledge. The Savings 
 Company failed in 1876, and commissioners were appointed to pass 
 upon the claims presented ; the notes and a claim for $50,000 for 
 money paid out at the request of the Savings Company were pre- 
 sented by the Franklin Company and rejected by the commissioners; 
 the validity of the claims is the question involved.] 
 
 WALTON, J. * * * The first question is whether it is compe- 
 
 1 Statement abridged and part of opinion omitted.
 
 268 POWER TO BORROW MONEY. 939 
 
 tent for the trustees of a savings bank, at a time when there are no 
 funds in the bank for investment, to agree to take shares in a manu- 
 facturing corporation, and thereby create a debt binding upon the bank. 
 
 We think not. It is familiar law that a corporation possesses such 
 powers, and such only as the law of its creation confers upon it. The 
 rule is stated with great uniformity. 
 
 [After quoting to this effect from several cases proceeds :] It would 
 seem, therefore, upon principle as well as authority, that it is not 
 within the authority of the trustees of a savings bank to invest its 
 funds in the' stock of manufacturing corporations, unless expressly 
 authorized so to do by its charter or the public laws of the state. 
 
 But we do not rest our decision upon this ground. We rest it 
 upon the broader ground that it is not competent for the trustees of a 
 savings bank to purchase on credit property of any kind not needed 
 for immediate ^use, or the investment of existing funds. No such 
 power is expressly conferred upon them, nor do we think it can be 
 sustained as an incidental power. 
 
 It is suggested that it may be convenient in this way to provide in 
 advance for the investment of funds that may afterward come into the 
 possession of the bank. We think the creation of debts by corpora- 
 tions or individuals, for no other purpose than to provide a ready way 
 to dispose of future acquisitions, a proceeding of very questionable 
 convenience ; that in the great majority of cases it would be likely to 
 prove, as it did in this case, very inconvenient. But it is a sufficient 
 answer to say that the law imposes no duty upon the trustees of sav- 
 ings banks to provide for the investment of future funds or future de- 
 posits. Their whole duty is performed when they have provided safe 
 investments for the funds already committed to their care, To hold 
 that they may create debts binding upon existing depositors, for the 
 benefit of future depositors, whose money after all may never be com- 
 mitted to their care, would be a doctrine as startling as it would be 
 unprecedented. 
 
 [The court further held that the Franklin Company, having know- 
 ingly participated in the illegal transaction, could not claim the priv- 
 ileges of a bona fide holder of the notes, and the Savings Company 
 having received no benefit from the transaction was not estopped to 
 set up the defense of ultra vires."] 
 
 Claim not allowed. 
 
 Note. A corporation can not borrow money for the purpose of purchasing 
 its own shares: 1894, Adams & W. Co. v. Deyette, 5 So. Dak. 418, 49 Am. 
 St. Rep. 887; 1896, Adams & W. Co. v. Deyette, 8 So. Dak. 119, 59 Am. 
 St. Rep. 751. 
 
 The statutes frequently fix a limit as to the amount that a corporation is 
 allowed to borrow ; in such a case the courts hold strictly that it has no power 
 to exceed those limits, and an attempt to do so can be restrained: 1884, 
 Wenlock v. River Dee Comm'rs, 10 App. Cas. 354; 1889, Commonwealth's 
 Appeal, 24 W. N. C. (Pa.) 530; 1889, Commw. v. Lehigh Ave. R. Co., 129 Pa. 
 St. 405; 1893, First Nat'l Bank v. K. M. Co., 95 Ky. 97. One who loans a cor- 
 poration money in excess of the authorized limit can not collect the excess, 
 though he may collect up to the limit. 1874, Osippee, etc., Mfg. Co. v. Can- 
 ney, 54 N. H. 295; 1878, DeCamp v. Dobbins, 29 N. J. Eq. 36; 1879, Humphrey
 
 940 BRADBURY V. BOSTON CANOE CLUB. 269 
 
 v. Patron's M. Assoc., 50 Iowa 607; 1881, Auerbachv. Le Seuer M. Co., 28 Minn. 
 291,41 Am. Rep. 285; 1886, Garrettv. Burlington, etc., Co., 70 Iowa 697, 59 
 Am. Rep. 461; 1891, Fidelity, etc., Co. v. West. Pa. R., 138 Pa. St. 494 ; 1893, 
 First Nat'l Bank v. K. M. Co., 95 Ky. 97 ; 1893, Merchants' Nat'l Bank v. C. G. 
 L. Co., 159 Mass. 505 ; 1895, Kraniger v. People's B'ld'g Soc., 60 Minn. 94 ; 1896, 
 Oswald v. Minn. T. Co., 65 Minn. 249; 1897, Sioux City, etc., Co. v. Trust 
 Co., 82 Fed. Rep. 124. 
 
 And it seems that one who, in good faith, loans money to a corporation 
 after the corporation has already borrowed up to the limit, can recover if he 
 had no knowledge that the limit had been reached. 1845, Stoney v. Am., 
 etc., Co., 11 Paige Ch. (N. Y.) 635; 1874, Osippee, etc., Co. v. Canney, 54 N. 
 H. 295; 1881, Auerbach v. Le Seuer M. Co., 28 Minn. 291, 41 Am. Rep. 461; 
 1886, Garrett v. Burlington, etc., Co., 70 Iowa 697, 59 Am. Rep. 461; 1890, 
 Allis v. Jones, 45 Fed. Rep. 148. 
 
 Sec. 269. (3) Negotiable instruments. 
 
 BRADBURY v. BOSTON CANOE CLUB. 
 
 1891. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 153 
 
 Mass. Rep. 77-8. 
 
 HOLMES, J. This is an action upon a promissory note for $150 
 and interest, given by the defendant to the plaintiff for money lent to 
 it by the plaintiff to be used in building a club-house. There is a sec- 
 ond count for money lent. At a meeting duly called the corporation 
 passed a vote authorizing its treasurer to borrow money in terms suffi- 
 ciently broad to cover the loan in question. The suggestion that no 
 sufficient notice of the business to be transacted was given, does not 
 seem to us fairly open on the agreed facts. Moreover, it would be 
 impossible to argue that the defendant had not recognized and ratified 
 the act of its treasurer in borrowing from the plaintiff. The money 
 was received by the corporation, and was used by it for the purpose 
 mentioned. The only question for us is, whether the corporation 
 acted illegally in borrowing money for the purpose of erecting a club- 
 house upon land of which it held a lease. 
 
 The defendant is a corporation formed under the Public Statutes, 
 ch. 115, 2, for encouraging athletic exercises. By section 7 it "may 
 hold real and personal estate, and may hire, purchase, or erect suita- 
 ble buildings for its accommodations, to an amount not exceeding 
 $500,000," etc. We are of opinion that under these words the de- 
 fendant had power to take a lease of land and to erect a suitable club- 
 house upon it. Having this power it was entitled to raise money for 
 the purpose. No argument is needed to show that the power at the 
 end of section 7 to receive and hold in trust funds received by gift or be- 
 quest does not confine the corporations to that mode of raising it. 
 Borrowing money is a usual and proper means of accomplishing what 
 the statute expressly permits. See Fay v. Noble, 12 Gush, i, 18; 
 Morville v. American Tract Society, 123 Mass. 129, 136; Davis v. 
 Old Colony Railroad, 131 Mass. 258, 271, 275. As this is a suffi-
 
 270 POWER AS TO NEGOTIABLE INSTRUMENTS. 94! 
 
 cient reason for giving the plaintiff judgment, it is unnecessary to 
 consider whether there are not others. 
 Judgment for the plaintiff. 
 
 Note. See note at the end of next case. 
 
 Sec. 270. Same. 
 
 UNION BANK v. JACOBS. 1 
 
 1845. IN THE SUPREME COURT OF TENNESSEE. 25 Tenn. (6 
 Humph.) 515, Cooper's Ed., 389. 
 
 [On the 28th day of September, 1841, Jacobs, as president of the 
 Hiwassee Railroad Company, executed a note, binding that company 
 to pay to said Jacobs the sum of $5,641, negotiable and payable at 
 the branch of the Union Bank at Knoxville, four months after date. 
 The note was indorsed by Jacobs to Trautwine, and by Trautwine to 
 the Union Bank, and delivered to the president and directors of the 
 bank, arid discounted by the bank for the benefit of the Hiwassee 
 company. At maturity, the note was protested, and suit brought by 
 the bank against Jacobs, as indorser, in the circuit court of Knox 
 county. 
 
 It was tried by Judge Lucky and a jury at the February term, 
 1845. He charged the jury that the Hiwassee company had no 
 power to borrow money, and that the note given in execution of a 
 void contract was null and void also. 
 
 The jury returned a verdict for the defendant, and plaintiff ap- 
 pealed. 
 
 The railroad company was created with all the rights "necessary 
 to the well ordering and conducting the affairs of said company; and 
 capable in law of purchasing, accepting, selling and conveying 
 estates, real, personal and mixed, to the end, and for the purpose of 
 facilitating the intercourse and transportation" designated; and was 
 "invested with all the powers and rights necessary for the building, 
 constructing, and keeping in repair of a railroad;" and the directors 
 "may cause to be made, or contract with others for making of said 
 road or any part thereof."] 
 
 TURLEY, J. * * * It is contended against the plaintiff's right 
 to recover that there is no power given, either expressly or by neces- 
 sary implication, by the charter to the Hiwassee Railroad Company, 
 to borrow money or to execute promissory notes; and that, therefore, 
 the note executed and indorsed to the bank is void, both as against the 
 maker and indorsers, and that no action can be maintained against them 
 thereon. 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 942 UNION BANK V. JACOBS. 2/O 
 
 The construction of the powers of corporations has been a fruitful 
 source of litigation, both in the courts of Great Britain and the United 
 States. In the earlier cases they were construed with great strictness, 
 and a stringent rule as to the mode of exercising them enforced. 
 Mr. Story, in the case of Bank of Columbia v. Patterson, 7 Cranch 
 305, says: "Anciently it seems to have been held that corporations 
 could not do anything without deed. 13 Hen. VIII, 12; 4 Hen. VII, 
 6; 7 Hen. VII, 7, 9. Afterwards, the rule seems to have been relaxed, 
 and they were for convenience sake permitted to act in ordinary 
 matters without deed, as to retain a servant, cook, or butler (Plow, 
 91 ; 2 Saund. 395) ; and gradually this relaxation widened to embrace 
 other objects (Bro. Corp., 51 ; 3 Salk. 191 ; 3 Lev. 107). At length, 
 it seems to have been established, that though they could not contract 
 directly except under their corporate seal, yet they might, by mere 
 vote or other corporate act, not under their corporate seal, appoint 
 an agent whose acts and contracts within the scope of his authority 
 would be binding on the corporation. 3 P. Wins. 419. And courts 
 of equity, in this respect, seeming to follow the law, have decreed a 
 specific performance of an agreement made by a major part of a cor- 
 poration, and entered in the corporation books, although not under 
 the corporate seal, i Fonbl. Eq. 305. This technical doctrine has 
 in more modern times been entirely broken down." The same judge, 
 in continuation in the same case, observes: "The doctrine that a cor- 
 poration could not contract except under its seal, or, in other words, 
 could not make a promise, if it had ever been fully settled, must have 
 been productive of great mischief. Indeed, as soon as the doctrine 
 was established, that its regularly appointed agents could contract in 
 their name without seal, it was impossible to support it ; for, other- 
 wise, the party who trusted such contract would be without remedy 
 against the corporation. Accordingly, it would seem to be a sound 
 rule of law, that whenever a corporation is acting within the scope of 
 the legitimate purposes of its institution, all parol contracts, made by 
 its authorized agents, are express promises of the corporation ; and 
 all duties imposed upon them by law, and all benefits conferred at 
 their request, raise implied promises, for the enforcement of which an 
 action may well lie. 3 Brown Ch. 262; Doug., 524; 3 Mass. 364; 
 5 Mass. 89, 491 ; 6 Mass. 50." Whatever of strictness may have 
 existed in the earlier cases, in restricting their power of contracting to 
 the express grant of authority, has been also greatly relaxed, and the 
 doctrine upon the subject been made more conformable to reason and 
 necessity, the powers granted to corporations being now construed 
 like all other grants of power, not according to the letter, but the 
 spirit and meaning. In Ang. & A. Corp., p. 192, 12, it is said: 
 "A corporation having been created for a specific purpose, can not 
 only make no contracts forbidden by its charter, which is, as it were, 
 the law of its nature, but in general can make no contract which is 
 not necessary, either directly or incidentally, to enable it to answer 
 that purpose. In deciding, therefore, whether a corporation can 
 make a particular contract, we are to consider, in the first place,
 
 27O POWER AS TO NEGOTIABLE INSTRUMENTS. 943 
 
 whether its charter, or some statute binding upon it, forbids or per- 
 mits it to make such a contract; and, if the charter and valid statutory 
 law are silent upon the subject, in the second place, whether the 
 power to make such a contract may not be implied on the part of the 
 corporation, as directly or incidentally necessary to enable it to fulfill 
 the purpose of its existence, or whether the contract is entirely foreign 
 to that purpose. In general, an express authority is not indispensa- 
 ble to confer upon a corporation the right to become drawer, indorser, 
 or acceptor of a bill of exchange, or to become a party to any other 
 negotiable paper. It is sufficient if it be implied as the usual and 
 proper means to accomplish the purposes of the charter. Chit. Bills 
 (5th ed.), 17-21; Baily Bills (5th ed.), p. 69, ch. 2, 7; Story 
 Bills Exch., p. 94, 79. In the case of Mum v. Commission Co., 15 
 Johns. 52, Spencer, J., who delivered the opinion of the court, says: 
 "It has been strongly urged that, under the act of incorporating this 
 company, they could neither draw nor accept bills of exchange. 
 Their power is undoubtedly limited ; they are required to employ 
 their stock solely in advancing money, when required, on goods and 
 articles manufactured in the United States, and the sale of such goods 
 and articles on commission. The acceptance of a bill is an engage- 
 ment to pay money ; and the company may agree to pay or advance 
 money at a future day, and they may engage to do this by the accept- 
 ance of a bill. When a charter or act of incorporation and valid stat- 
 utory law are silent as to what contracts a corporation may make, as 
 a general rule it has power to make all such contracts as are necessary 
 and usual in the course of business, as means to enable it to attain the 
 object for which it was created, and none other. The creation of a 
 corporation for a specific purpose implies a power to use the neces- 
 sary and usual means to effectuate that purpose." Ang. & A. Corp., 
 p. 200, 3. 
 
 Mr. Story, in his treatise on Bills of Exchange (page 95), speak- 
 ing of the power of corporations to draw, indorse and accept bills of 
 exchange, says: "It is sufficient if it be implied as a usual and appro- 
 priate means to accomplish the objects and purposes of the charter. 
 But when the drawing, indorsing, or accepting such bills is obviously 
 foreign to the purposes of the charter, or repugnant thereto, then the 
 act becomes a nullity, and not binding on the corporation." 
 
 In the case of People v. Utica Ins. Co., 15 Johns., Thompson, C. 
 J., who delivered the opinion of the court, says, at page 383, "An 
 incorporated company has no rights but such as are specially granted, 
 and those that are necessary to carry into effect the powers so 
 granted. ' ' 
 
 In the case of Mott v. Hicks, a quantity of wood was purchased 
 for the president and directors of the Woodstock Glass Company by 
 Whitehead Hicks, the president thereof, for which he executed the 
 promissory note of the company at six months. It appears, from a 
 reference in argument to the charter of the company, that there was 
 no clause authorizing it to issue bills or notes, or making such, if 
 issued, binding and obligatory upon the company ; yet it was held by
 
 944 UNION BANK V. JACOBS. 270 
 
 the court that an action would lie against the corporation upon the 
 note, it having been executed by its legally authorized agent, acting 
 within the scope of the legitimate purposes of such corporation, i 
 Cow. 513. 
 
 In the case of Hay ward v. Pilgrim Soc., 21 Pick. 270, it was held 
 that the trustees of a society incorporated for the purpose of building 
 a monument, in virtue of their authority to manage the finances and 
 property of the society, were held competent to bind the society by a 
 promissory note through the agency of their treasurer. 
 
 These authorities fully establish the proposition, that, in the con- 
 struction of charters of corporations, the power to contract and the 
 mode of contracting is not limited to the express grant, but may be 
 extended by implication to all necessary and proper means for the ac- 
 complishment of the purposes of the charter. Now, what are neces- 
 sary and proper means? Mr. Story, as we have seen, says if the 
 means are usual and appropriate, the implication of power arises. 
 Story Bills, 95. 
 
 Chief Justice Marshall, in the case of McCulloch v. State of Mary- 
 land, 4 Wheat. 413, says: "But the argument on which most reli- 
 ance is placed, is drawn from the peculiar language of this clause of 
 the constitution. Congress is not empowered by it to make all laws 
 which may have relation to the powers conferred on the government, 
 but such only as may be necessary and proper for carrying them into 
 execution. The word 'necessary' is considered as controlling the 
 whole sentence, and as limiting the right to pass laws for the execu- 
 tion of the granted powers to such as are indispensable, and without 
 which the power would be nugatory. That it excludes the choice of 
 means, and leaves congress in each case that only which is most 
 direct and simple. Is it true that this is the sense in which the word 
 'necessary' is always used? Does it always import an absolute phys- 
 ical necessity, so strong that one thing to which another may be 
 termed necessary can not exist without that other? We think it does 
 not. If reference be had to its use in the common affairs of the world, 
 or in approved authors, we find that it frequently imports no more 
 than that one thing is convenient or useful or essential to another. To 
 employ the means necessary to an end, is generally understood as em- 
 ploying any means calculated to produce the end, and not as being 
 confined to those single means, without which the end would be en- 
 tirely unattainable. Such is the character of the human mind that no 
 word conveys to it in all situations one single definite idea, and noth- 
 ing is more common than to use words in a figurative sense. Almost 
 all compositions contain words which, taken in their rigorous sense, 
 would convey a meaning different from that which is obviously in- 
 tended. It is essential to just construction that many words which 
 import something excessive should be understood in a more mitigated 
 sense in that sense which common usage justifies. The word 'nec- 
 essary' is of this description. It has no fixed character peculiar to 
 itself. It admits of all degrees of comparison, and is often connected 
 with other words, which increase or diminish the impression the mind
 
 2/0 POWER AS TO NEGOTIABLE INSTRUMENTS. 94$ 
 
 receives of the urgency it imports. A thing may be necessary, very 
 necessary, absolutely or indispensably necessary. To no mind would 
 the same idea be conveyed by these several phrases." In conclusion 
 upon this subject, he says, page 421, same case: "We admit, as all 
 must admit, that the powers of the government are limited, and that 
 its limits are not to be transcended. But we think the sound con- 
 struction of the constitution must allow to the national legislature that 
 discretion with respect to the means by which the powers it confers 
 are to be carried into execution which will enable that body to per- 
 form the high duties assigned to it in the manner most beneficial to 
 the people. Let the end be legitimate, let it be within the scope 'of 
 the constitution, and all means which are appropriate, which are 
 plainly adapted to that end, which are not prohibited, but consist with 
 the letter and spirit of the constitution, are constitutional." 
 
 Now if this be true doctrine in relation to the constitution of the 
 United States, surely it will not be contended that a more stringent 
 rule will be applied in the construction of the powers of a corpora- 
 tion than is applied in the construction of the powers of congress un- 
 der the constitution of the United States. 
 
 To apply these principles, as established by the authorities cited, to 
 the case under consideration. The Hiwassee Railroad Company is 
 chartered to construct a railroad, a thing of itself necessarily involving 
 a heavy expenditure of money ; but in addition thereto it is empowered 
 to sue and be sued, to acquire and hold; sell, lease and convey es- 
 tates, real, personal and mixed, which necessarily involves the power 
 of making contracts for the same. How shall these contracts be made, 
 both for the construction of the road and the purchase of the property ? 
 It is argued that the capital stock of the company is the only means 
 provided for the payment, and that no other can be resorted to for 
 that purpose ; or, in other words, that it must pay cash for every con- 
 tract, for that no power is given by which it may contract upon time ; 
 for if it may create a debt of necessary consequence, it may create 
 written evidences of that debt, and these may be either promissory 
 notes or bills of exchange. It is true that the capital stock of the 
 company is the source from whence an ultimate payment of the debts 
 of the company must be made ; but to hold that a sufficient amount 
 of this stock must always be on hand to pay immediately for every con- 
 tract made would be destructive of the operations of the company. 
 By the provisions of the charter not more than one-fourth of the stock 
 shall be called for in any one year, and this upon thirty days' notice ; 
 and if, within thirty days after such notice, the amount called for be 
 not paid, the company is authorized to take steps against the delin- 
 quent stockholders to enforce payment. Now it is obvious that it 
 never was intended that all the stock should be paid in before the 
 company commenced operations. The early completion of the road 
 was a desirable object for commercial purposes, and it can be pre- 
 tended that the expenditures of the company were to be limited and 
 restricted to the amount of capital actually paid in by the stockhold- 
 
 60 WIL. CASES.
 
 946 UNION BANK V. JACOBS. 2 70 
 
 ers, and that under no circumstances was the company to exceed 
 them? If, upon failure of the means on hand, the stockholders should 
 neglect to pay upon a proper call, are the works to be suspended un- 
 til such time as payments could be enforced? Are the persons who 
 may have done work for it, and for which they have not been paid, 
 to wait the slow process of the law before they can receive satisfac- 
 tion ? And shall the company not be permitted to use its credit in 
 such emergency? It is so argued for the defendant. This construc- 
 tion of the charter would be ruinous in its consequences. The com- 
 pany might be compelled to suspend all operations at a time when 
 great loss would result from deterioration to unfinished work, and be 
 greatly injured also in its credit. 
 
 The restriction contended for is too refined and technical. It might 
 have suited the days of the Year Books, when it was held that a cor- 
 poration could contract for nothing except under its corporate seal ; 
 but it is strange that it should be urged at this day of enlightened ju- 
 risprudence, when the substance of things is looked to rather than 
 forms. A corporation is, in the estimation of law, a body created for 
 special purposes, and there is no good reason why it should not, in 
 the execution of these purposes, resort to any means that would be 
 necessary and proper for an individual in executing the same, unless 
 it be prohibited by the terms of its charter or some public law from 
 so doing. 
 
 There is no principle which prevents a corporation from contracting 
 debts within the scope of its action; and, as has been observed, if it 
 may contract a debt, it necessarily may make provision for its pay- 
 ment by drawing or indorsing or accepting notes or bills. It is not 
 pretended that this power extends to the drawing, indorsing or accept- 
 ing of bills or notes generally, and disconnected from the purposes for 
 which the corporation was created. * * * 
 
 Judgment reversed. 
 
 Note. Power to issue negotiable instruments. 
 
 1. Corporations have such power whenever it is a necessary or convenient 
 method of conducting their proper business: 1797, Phelps v. Livingston, 2 
 Root (Conn.) 495; 1838, Hayward v. Pilgrim Soc., 38 Mass. (21 Pick.) 270; 
 1848, Stevens v. Hill, 29 Maine 133; 1849, Butts v. Cuthbertson, 6 Ga. 166; 
 1860, Brown v. Donnell, 49 Maine 421, 77 Am. Dec. 266; 1871, Downer v. 
 Read, 17 Minn. 493; 1873, In re Great West. Tel. Co , 5 Biss. 363, Fed. Cas. 
 5740; 1875, Watts' Appeal, 78 Pa. St. 370; 1877, Franklin Co. v. Lewiston Inst. 
 for Sav., 68 Maine 43, supra, p. 938; 1882, Wright v. Pipe Line Company, 101 
 Pa. St. 204; 1889, National Bank v. German Mut., etc., Co., 116 N.Y. 281; 
 1892, Am. Ex. Nat'l Bank v. Oregon, etc., Co., 55 Fed. Rep. 265; 1896, Farm- 
 ers' Mut. Ins. Co. v. Meese, 49 Neb. 861 ; 1896, Kneeland v. Braintree, 167 
 Mass. 161 ; 1899, National Loan & Inv. Co. v. Rockland Co., 94 Fed. Rep. 335; 
 1899, G. V. B. Min. Co. v. First Nat'l Bank, 95 Fed. Rep. 23; 1899, McGarry 
 v. Tanner, etc., 21 Utah 16, 59 Pac. Rep. 93. 
 
 But corporations, unless expressly authorized, have no power to deal in 
 notes or bonds: 1863, Goodrich v. Reynolds, 31 111. 490, 83 Am. Dec. 240; 
 1899, Indiana Bond Co. v. Ogle, 22 Ind. App. 593, 72 Am. St. Rep. 326. 
 
 2. As between the original parties to the negotiable instrument, the officer 
 who acts for the corporation must have express or implied authority to bind 
 the corporation, but generally no formal proceedings upon the part of the cor-
 
 2/1 POWER AS TO NEGOTIABLE INSTRUMENTS. 94/ 
 
 poration are necessary : 1897, Blake v. Domestic Mfg. Co., N. J. Eq. , 
 38 All. Rep. 241; 1898, Washington Times Co. v. Wilder, 12 App. D. C. 62; 
 1898, Dexter Savings Bank v. Friend, 90 Fed. Rep. 703; 1899, Monroe Mer- 
 cantile Co. v. Arnold, 108 Ga. 449, 34 8. E. Rep. 176 ; 1899, Porter v. Winona 
 & D. G. Co., 78 Minn. 210, 80 N. W. Rep. 966; 1899, G. V. B. Min. Co. v. 
 First Nat'l Bank, 95 Fed. Rep. 23; 1900, Crawford v. Albany Ice Co., 36 Ore. 
 535, 60 Pac. Rep. 14. 
 
 But if the corporation has power to issue promissory notes for any purpose 
 a bona fide holder for value, with no knowledge of lack of authority of the 
 agent, or of other irregularity, or that it was in fact issued by the corpora- 
 tion for an ultra vires purpose, will be protected: 1825, Ridgway v. Bank, 12 
 Serg. & R. (Pa.) 256; 1848, Mclntire v. Preston, 10 111. (5 Gil.) 48; 1869, Mon- 
 ument Nat'l Bank v. Globe Works, 101 Mass. 57 ; 1886, National Bank v. 
 Young, 41 N. J. Eq. 531 ; 1889, National Park Bank v. G. A. M. W. & S. Co., 
 116 N. Y. 281 ; 1895, Jacob's Pharmacy Co. v. So. B. & T. Co., 97 Ga. 573; 
 1895, Marshall Nat'l Bank v. O'Neal, 11 Texas Civ. App. 640. 
 
 As in other cases, there is much uncertainty as to the extent of the power ol 
 the president to bind the corporation by notes issued without express authority. 
 The two following cases illustrate this : 1899, G. V. B. Mining Co. v. First Nat'l 
 Bank, 95 Fed. Rep. 23 (holding that president has implied authority) ; 1900, 
 Crawford v. Albany Ice Co., 36 Ore. 535, 60 Pac. Rep. 14 (holding that ex- 
 press authority must be shown) . 
 
 Sec. 271. Same. 
 
 BATEMAN v. THE MID WALES RAILWAY COMPANY. 1 
 
 1866. IN THE COURT OF COMMON PLEAS. 35 L. J. Rep. (C. P.) 
 205-210, i Com. Pleas 499. 
 
 The plaintiffs in these actions, as indorsees, sued the defendants, 
 as acceptors of certain bills of exchange ; and the defendants pleaded 
 that they did not accept. 
 
 The defendants were a railway company, constituted under the 22 
 & 23 Viet., ch. Ixiii. This special act was in the usual form, both as 
 to the powers given to and the restrictions placed on the company, 
 and as to the incorporation of general acts ; and there was no differ- 
 ence between the cases, except that in the last case evidence was 
 given of the defendants having actually commenced business. 
 
 The bills were directed to the Mid Wales Railway Company, and 
 were accepted in the following form : "Accepted by order of the 
 board of directors, and payable at the Agra & Masterman's Bank, 
 John Wade, Secretary," with the seal of the company affixed under 
 these words. And there was no question but that there was a resolu- 
 tion of the board of directors to the above effect. 
 
 At the trial a verdict was entered for the plaintiffs, with leave to 
 the defendants to move to enter a verdict for themselves on the 
 grounds, first, that the defendants had no power by law to accept the 
 bills, and, secondly, that the acceptances were not binding on them, 
 and that even if bills could be accepted by them the bills were not ac- 
 cepted in such a form as to be binding on them. 
 
 1 Arguments, and opinions of Erie, C. J., Byles & Keating, JJ., omitted.
 
 948 BATEMAN V. THE MID WALES RAILWAY COMPANY. 2/1 
 
 Rules nisi were obtained, pursuant to such leave. 
 
 MONTAGUE SMITH, J. The plaintiffs as indorsees sue the defend- 
 ants as acceptors, so that the action is not between the immediate 
 parties to the bills. I think a railway company is not competent to 
 accept bills of exchange. A railway company is incorporated to 
 make and maintain a railway; its powers and resources are limited 
 by the incorporating statutes; but if they may accept bills of ex- 
 change, they either may do so to any extent, or there would have to 
 be an inquiry whether the purposes for which the bills were accepted 
 were within their powers in each particular case. I think the legis- 
 lature did not intend to give them the power. It is admitted that there 
 is no authority in favor of it ; and there is a great abundance of 
 authority to show that in the analogous cases of mining, water-works, 
 gas, and other companies, the companies can not draw bills of ex- 
 change, though they are more trading companies than a railway com- 
 pany. The first object in the constitution of a railway company is 
 to make a railway, though, it is true, they may, and practically al- 
 ways do become carriers. Corporations for the purposes of trade 
 have the power of issuing bills of exchange as incidental to such 
 trading ; but this doctrine only applies where the primary object is 
 trade, buying and selling. In addition to the authorities referred to, 
 there is the distinct authority of various eminent text-writers that such 
 a company as this can not. accept a bill of exchange. Amongst oth- 
 ers, Mr. J. W. Smith, in his treatise on Mercantile Law, says: 
 "However, it has been considered that a trading corporation may differ 
 from others as to its powers of contracting and its remedies on con- 
 tracts relating to the purposes for which it was formed. Thus, such 
 a corporation may in some cases bind itself by promissory notes and 
 bills of exchange ; and it was even held that the Bank of England 
 might without deed appoint an agent for such purposes. But a cor- 
 poration will not have these extraordinary powers unless the nature of 
 the business in- which it is engaged raises a necessary implication of 
 their existence." Now clearly, here there is no express power, nor 
 is there any necessary implication. For these reasons, I am of opin- 
 ion that the defendants were not competent to accept a bill of ex- 
 change ; and on the other point I also agree with the rest of the court. 
 
 Note. The above case gives the general doctrine in England, but the power 
 to give notes or accept bills of exchange exists "where upon a fair construc- 
 tion of the memorandum and articles of association it appears that it was in- 
 tended to be conferred." 1866, Peruvian R. v. Thames & M. M. I. Co., 36 L. 
 J. Ch. 864, L. R. 2 Ch. 617. Or where "it is necessary to carry on the business 
 under ordinary circumstances and in the usual way." 1887, In re Cunning- 
 ham & Co., 36 Ch. Div. 538, 57 L. J. Ch. 169; 1889, Atkin v. Wardle, 61 L. T. 
 23. This power seems to be implied in purely trading companies. 1869, In 
 re Land Credit Co., L. R. 4 Ch. App. 460; but not in railway (Bateman & 
 Mid Wales, etc., supra), gas (1837, Bramah v. Roberts, 3 Bing. N. C. 963, 32 
 E. C. L. 404), water-works (1819, Broughton v. Manchester, etc., Co., 3 B. 
 & Aid. 1, 5 E. C. L. 11), or mining companies (1829, Dickinson v. Valpy, 10 
 B. & C. 128, 21 E. C. L. 63).
 
 2/2 POWER AS TO NEGOTIABLE INSTRUMENTS. 949 
 
 Sec. 272. Same. Accommodation paper. 
 
 MONUMENT NATIONAL BANK v. GLOBE WORKS. 1 
 
 1869. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 101 
 Mass. Rep. 57-59. 
 
 HOAR, J. The single question presented for our decision in this 
 cause, all others which arise upon the report having been waived, is, 
 whether the note of a manufacturing corporation, in the hands of a 
 holder in good faith for value, who took it before maturity, and with- 
 out any knowledge that the makers had not received the full consider- 
 ation, can not be enforced against them, because it was in fact made 
 as an accommodation note. 
 
 The argument for the defendants takes the ground that to issue an 
 accommodation note is not within the powers conferred upon the 
 corporation ; and that, as any persons taking it had notice that it was 
 the note of the corporation, they had notice that it was of no validity 
 unless issued for a purpose within the scope of the corporate powers, 
 and were, therefore, bound to ascertain not only that it was executed 
 by the officer of the corporation who had the general authority to sign 
 the notes which they might lawfully make, but that the purpose for 
 which it was issued was such as the charter authorized them to enter- 
 tain and execute. 
 
 The court are all of opinion that this position is not tenable, and 
 that the defense can not be maintained. 
 
 It has long been settled in this commonwealth that a manufactur- 
 ing corporation has the power to make a negotiable promissory note. 
 Narragansett Bank v. Atlantic Silk Co., 3 Met. 282. And it was 
 held in Bird v. Daggett, 97 Mass. 494, as a just corrollary to that 
 proposition, that such note in the hands of a holder in good faith for 
 value is binding upon the maker, although made as an accommodation 
 note. The question was not discussed, nor the reasons for the decis- 
 ion fully stated in Bird v. Daggett; but it was assumed that the doc- 
 trine announced was clear and undoubted law. 
 
 The doctrine of ultra vires has been carried much farther in Eng- 
 land than the courts in this country have been disposed to extend it; 
 but, with just limitations, the principle can not be questioned, that 
 the limitations to the authority, powers, and liability of a corporation 
 are to be found in the act creating it. And it no doubt follows, as 
 claimed by the learned counsel for the defendants, that when powers 
 are conferred and defined by statute, every one dealing with the cor- 
 poration is presumed to know the extent of those powers. 
 
 But when the transaction is not the exercise of a power not confer- 
 red on a corporation, but the abuse of a general power in a particular 
 instance, the abuse not being known to the other contracting party, 
 the doctrine of ultra vires does not apply. As was said by Selden, J., 
 
 1 Part of opinion omitted.
 
 950 MURPHY V. ARKANSAS & L. LAND IMPROVEMENT CO. 273 
 
 in Bissell v. Michigan Southern and Northern Indiana Railroad Com- 
 pany, 22 N. Y. 289, 290: "There are no doubt cases in which a 
 corporation would be estopped from setting up this defense, although 
 its contract might have been really unauthorized. It would not be 
 available in a suit brought by a bona fide indorsee of a negotiable 
 promissory note, provided the corporation was authorized to give notes 
 for any purpose ; and the reason is, that the corporation, by giving 
 the note, has virtually represented that it was given for some legiti- 
 mate purpose, and the indorsee could not be presumed to know the 
 contrary. The note, however, if given by a corporation, absolutely 
 prohibited by its charter from giving notes at all, would be voidable 
 not only in the hands of the original payee, but in those of any subse- 
 quent holder; because all persons dealing with a corporation are 
 bound to take notice of the extent of its chartered powers. The same 
 principle is applicable to contracts not negotiable. When the want 
 of power is apparent upon comparing the act done with the terms of 
 the charter, the party dealing with the corporation is presumed to 
 have knowledge of the defect, and the defense of ultra vires is avail- 
 able against him. But such a defense would not be permitted to pre- 
 vail against a party who can not be presumed to have had any knowl- 
 edge of the want of authority to make the contract. Hence, if the 
 question of power depends not merely upon the law under which the 
 corporation acts, but upon the existence of certain extrinsic facts, 
 resting peculiarly within the knowledge of the corporate officers, then 
 the corporation would be estopped from denying that which, by as- 
 suming to make the contract, it had virtually affirmed." 
 
 This doctrine seems to us sound and reasonable ; and in conformity 
 with it, it was held, in Farmers' and Mechanics' Bank v. Empire 
 Stone Dressing Company, 5 Bosw. 275, that an accommodation ac- 
 ceptance by an officer of a manufacturing corporation, on behalf of 
 the company, was not binding, unless the consideration had been ad- 
 vanced upon the faith of the acceptance ; but that if the consideration 
 was paid in good faith after the acceptance, and upon the credit of it r 
 it could be enforced. * * * 
 
 Judgment for plaintiffs. 
 
 Note. Accord: 1858, Smead v. R. Co., 11 Ind. 104; 1865, Hall v. Auburn 
 Tp. Co., 27 Cal. 255, 87 Am. Dec. 75; 1886, National Bank v. Young, 41 N. J. 
 Eq. 531 ; 1889, National Park Bank v. G. A. M. W. & S. Co., 116 N. Y. 281 ; 
 1895, Jacob's Pharmacy Co. v. So. Bank & T. Co., 97 Ga. 573 ; 1898, Steiner v. 
 Steiner L. & L. Co., 120 Ala. 128, 26 So. Rep. 494. But see next case. 
 
 Sec. 273. Same. 
 
 MURPHY ET AL. v. ARKANSAS & L. LAND IMPROVEMENT 
 
 COMPANY. 1 
 
 1899. IN THE UNITED STATES CIRCUIT COURT, N. D. ARKANSAS. 
 97 Fed. Rep. 723-730. 
 
 [Bill to foreclose a trust deed. P. F. B. owned one-third of a 
 1 Statement abridged, and only part of opinion given.
 
 273 POWER AS TO NEGOTIABLE INSTRUMENTS. 95 1 
 
 $30,000 judgment in favor of the A. & L. R. Co. against J. D. B. 
 In order to discharge this third, J. D. B. paid P. F. B. $6,000, and 
 delivered to him a note for $4,000, secured by a deed of trust, exe- 
 cuted by the Land Company, and made payable to J. D. B. or his 
 assignee, for the purpose of enabling him to pay his claim. The note 
 and deed were executed with the full consent of all the directors and 
 shareholders of the Land Company, composed of J. D. B., who 
 owned all the stock except shares necessary to qualify a son of J. D. 
 B. and his attorney to be directors ; also at a time when the corpora- 
 tion had ample property to pay all its debts including this claim. P. 
 F. B. assigned the note and deed of trust in the ordinary course of 
 business to Murphy, who brings the suit.] 
 
 ROGERS, District Judge. * * * It is urged that the land com- 
 pany had no authority to execute accommodation paper, and hence 
 the execution of the note was ultra vires. I incline to think that 
 the charter of the land company is broad enough to authorize it to ex- 
 ecute accommodation paper, but it makes no difference as to that. 
 The land company is a private corporation. It owed no debts. 
 The paper was issued by the consent of all the stockholders, and it 
 has been accepted, and the consideration parted with by P. F. B. 
 for it. Can it now be permitted to take shelter under the plea of ultra 
 vires? I think not. In i Cook Corp., 3, the author says : 
 
 "A private corporation may become an accommodation indorser, 
 distribute its assets, issue its notes, stock, or bonds below par, or, for 
 no consideration whatever, give away its assets, or may mortgage its 
 property for the personal benefit of a part or all of its stockholders or 
 officers ; provided, always, that all the stockholders assent, and pro- 
 vided that corporate creditors are not injured, and provided that no 
 statute forbids such acts. The doctrine of ultra -vires is no longer 
 held to forbid such acts by a private corporation under such circum- 
 stances. * * * The theory of a corporation is that it has no pow- 
 ers except those expressly given or necessarily implied. But this 
 theory is no longer strictly applied to private corporations. A private 
 corporation may exercise many extraordinary powers, provided all of 
 its stockholders assent, and none of its creditors are injured. There 
 is no one to complain except the state, and, the business being entirely 
 private, the state does not interfere. Thus, fifty years ago the courts 
 would have summarily declared it illegal for a business corporation 
 to become an accommodation indorser of commercial paper, but to- 
 day there is no rule of public policy which prohibits a private corpo- 
 ration having a capital stock from becoming the accommodation in- 
 dorser of commercial paper, providing such indorsement is made with 
 the knowledge and assent of all the directors and stockholders, and 
 provided corporate creditors are paid." 
 
 In the subsequent discussion of the author it is shown that whatever 
 is done by a private corporation with the assent of all of its stockhold- 
 ers, and where no creditor is injured, although it may be ultra vires^ 
 is lawful, and will be enforced by the courts. The principle does not
 
 952 TOD ET AL. V. KENTUCKY UNION LAND CO. 274 
 
 apply to railroad corporations or yuast-public corporations. * * * 
 Decree for plaintiff. 
 
 Note. Accord: 1890, Martin v. Niagara Falls Paper Co., 122 N. Y. 165; 
 1895, Bensiek v. Thomas, 66 Fed. Rep. 104; 1897, Solomon Solar S. Co. v. 
 Barber, 58 Kan. 419, 49 Pac. Rep. 524; 1898, Central Trust Co. v. C. H. V. & 
 T. R. Co., 87 Fed. Rep. 815. 
 
 Sec. 274. (4) Surety or guarantor. 
 
 TOD ET AL. v. KENTUCKY UNION LAND COMPANY ET AL. 
 
 1893. IN THE UNITED STATES CIRCUIT COURT, DISTRICT OP 
 KENTUCKY. 57 Fed. Rep. 47-66. 
 
 [Bill in equity against the land company and others for the appoint- 
 ment of a receiver, and declaring an assignment under the Kentucky 
 laws, on account of the debtor land company having made preferences 
 which, as alleged, operated as an assignment. Decree for complain- 
 ants, with a reference to a commissioner, to report as to priority of 
 claims. The land company had guaranteed the first mortgage bonds 
 to the extent of $2,625,000, $800,000 second mortgage bonds, and a 
 5 per cent, dividend upon $500,000 of the capital stock, of the Ken- 
 tucky Union Railway Company; the validity of these guaranties, be- 
 ing assailed by other creditors, was submitted by the commissioner to 
 the court.] 
 
 LURTON, C. J. * * * Did the Kentucky Union Land Com- 
 pany have the power to bind itself by its contract guarantying the 
 principal and interest of the first mortgage bonds issued by the Ken- 
 tucky Union Railway Company? 
 
 The question, as presented on this record, is a question pure and 
 simple as to how far the authority to execute these contracts is sus- 
 tained by the corporate powers which the law has vested in this com- 
 pany. No question arises as to the rights of bona fide holders of 
 these bonds for value and without notice of the facts that the bonds 
 had not been indorsed upon their sale and transfer by the guarantying 
 corporation. The general doctrine may be taken to be well settled in 
 the courts of the United States that the powers of the corporation are 
 such, and such only, as are conferred by the law under which it is in- 
 corporated. The charter is the measure of the power of every corpo- 
 ration, and by this test must every corporate act be tried. This rule, 
 however, concedes the usual propositions applicable to every legisla- 
 tive act that what is fairly implied is as much granted as if expressly 
 enumerated. * * * 
 
 The power to execute accommodation paper or to guaranty for ac- 
 commodation the obligations of another corporation is not expressly 
 conferred by the charter of the land company. Ordinarily, such 
 
 1 Statement abridged, and only part of opinion given.
 
 $ 274 POWER TO BE SURETY. 953 
 
 power is not implied from the powers conferred upon corporations, 
 and such contracts are generally in excess of the powers of corpora- 
 tions, and therefore void as ultra -vires, in the true sense of the term. 
 This proposition rests upon two or more very evident reasons : 
 
 (1) The corporate funds belong to its shareholders and, by the 
 very terms of the law creating it, can not be devoted to any other pur- 
 pose than those indicated by its charter and constitution. Such obli- 
 gations would violate the fundamental terms of the agreement be- 
 tween the corporators themselves. 
 
 (2) To do so would be to exercise a power not conferred by the 
 state, either expressly or impliedly. The state's grant of the corpo- 
 rate franchises is for the purpose prescribed, and the execution of 
 such obligations would be beyond the power conferred, and therefore 
 a diversion of the corporate purposes, as well as of the corporate 
 funds. 
 
 (3) Such obligations rest upon no consideration, and would not, 
 therefore, be valid. They would amount to a donation of the corpo- 
 rate funds, and therefore an unlawful diversion. Mor. Priv. Corp., 
 423; Davis v. Railroad Co., 131 Mass. 258; Madison Plank-Road Co. 
 v. Watertown Plank-Road Co., 7 Wis. 59; McClellan v. File Works, 
 56 Mich. 579, 23 N. W. Rep. 321 ; National Park Bank v. German- 
 American Mutual Warehouse & Security Co., 116 N. Y. 292, 22 N. 
 E. Rep. 567; ^Etna Nat'l Bank v. Charter Oak Life Ins. Co., 50 
 Conn. 167. 
 
 But there is no inherent want of power in a business corporation, 
 having the power to execute negotiable paper, to obligate itself as a 
 surety or guarantor. If such a corporation receives commercial paper 
 or bonds in due course of business we see no reason why, upon transfer- 
 ring such paper, it may not be lawful to obligate itself as indorser or 
 guarantor. Such a contract would be a new and independent con- 
 tract, and would rest upon a sufficient consideration, if entered into as 
 a legitimate means of increasing the value of the security to be dis- 
 posed of in ordinary course of business. In Railroad v. Howard the 
 question arose as to the liability of a railroad company upon its guar- 
 anty of certain bonds issued by various counties and cities, and re- 
 ceived by the railroad company in payment of subscription to its 
 stock. 
 
 Upon full consideration it was held that, inasmuch as the company 
 had received the bonds in payment of stock, it had a right to obligate 
 itself by its own bonds for the purpose of building its road ; it might 
 lawfully, and in furtherance of its authorized purpose, guaranty such 
 bonds as a means of augmenting their value on the market, thus pro- 
 ducing funds to build its road. 7 Wall. 411, 412. The power of a 
 corporation to bind itself by a guaranty, when it does so for its own 
 benefit and as a means of selling at an augmented value, is generally 
 conceded by the authorities. "In such cases," says Mr. Randolph 
 in his work upon Commercial Paper (vol. i, sec. 334), "the guaranty 
 is an original contract of the corporation for its own benefit ; the con- 
 sideration moving to itself, and not to the person whose debt is guar- 
 antied." * *
 
 954 TOD ET AL - v - KENTUCKY UNION LAND CO. ET AL. 274 
 
 In the light of these principles let us look at the facts connected 
 with the contract under consideration. 
 
 The Kentucky Union Land Company was incorporated under a 
 special charter granted by the legislature of Kentucky in 1880. Its 
 original corporate title was, "The Central Kentucky Lumber, Min- 
 ing, Manufacturing and Transportation Company." This name was 
 by amendment of charter in 1890, and after these bonds had been 
 guarantied, changed to "The Kentucky Union Land Company." 
 The original title indicated very thoroughly the large power confer- 
 red by the charter, and the composite character of the business con- 
 templated thereunder. * * * 
 
 The Kentucky Union Railway Company was organized under a 
 special charter granted by Kentucky in 1854. Under its charter the 
 
 stock might be subscribed for by "any individual or corporation." 
 
 * * * 
 
 * 
 
 Without undertaking to state the details as to how and under what 
 circumstances, and upon what consideration, it is sufficient for the 
 purpose of this case to say that, at the date of the contract of guaranty 
 in question, shares of stock in the railway company to the amount of 
 $1,800,000 were held and owned by the land company. This con- 
 stituted the whole of the shares issued by that company except, per- 
 haps, nine, which were held by the directors of the railway company 
 in order that they might be qualified to act. The land company at 
 the same time had acquired the title to between 300,000 and 500,000 
 acres of mountain lands on the line of the projected continuation of 
 this railway. In order to the development of these lands, and to the 
 utilization of the timber and mines thereon, it became most essential 
 that this railway should be completed. Did the land company have 
 power to aid in the extension and completion of this railway ? * * * 
 
 [The charter provided inter alia, that the land company might 
 "acquire by purchase or condemnation the necessary rights of way for 
 exporting the products of the mines and timber," and might "effect 
 a temporary or permanent consolidation with any railroad or transpor- 
 tation company," and "the consolidated companies may have and ex- 
 ercise the powers of both companies."] 
 
 Now, the case, as it was presented to the land company, was this : 
 "We have purchased, as authorized by our charter, a vast body of 
 timbered and mineral lands. We are authorized, expressly, to utilize 
 these lands by developing their timber and mineral interest. The in- 
 tention of the legislature was that this buried natural wealth shall be 
 utilized by the erection of sawmills, iron works, rolling mills, furniture 
 factories, iron furnaces, and by the opening and operating of iron and 
 coal mines. It contemplated that transportation of the products of 
 these mines, mills and factories would be a matter of great concern. 
 The right to condemn rights of way is conferred." 
 
 That railroad transportation would be essential to get to market 
 these products, and for the necessary development of the towns which 
 must spring up around enterprises so numerous, was also in contem-
 
 2/4 POWER TO BE SURETY. 955 
 
 plation of the state when the charter was granted, is evident from sev- 
 eral considerations: 
 
 (1) The coal, iron and timber, and the manufactured products of 
 the contemplated mills and factories could not be profitably utilized 
 without cheap transportation. 
 
 (2) That the company should engage in transportation is indicated 
 by the original title of the corporation. It was to be a transportation 
 company as well as a mining and manufacturing company. 
 
 (3) The power to consolidate with any railroad company, char- 
 tered or to be chartered, is expressly conferred. 
 
 (4) In case of such consolidation the companies were to exercise 
 the powers of both, and act in the name of either, or in an agreed 
 name. The power did not stop here. There might be a "temporary 
 consolidation" with a railroad company. * * * 
 
 There is nothing in this charter to indicate that only a technical 
 consolidation was authorized. On the contrary, the power to make a 
 "temporary consolidation," looking to all the four corners of this char- 
 ter, clearly implies the power to make such an alliance or bring about 
 such a union and co-operation of interests between the land company 
 and the railway company as shall be to the mutual interest of each, 
 and place both under the same control and management. This could 
 be done by the plan suggested by Mr. Morawetz in section 942, 
 whereby the shares of one company should be held by the other, or 
 by the same persons. This meaning seems reasonable and proper, 
 looking to the objects and purposes of this corporation, and any steps 
 which brought about unity of interest and co-operation in purpose as 
 being legitimate and authorized. Under the power we are of opinion 
 that the Kentucky Union Land Company had the power to acquire 
 the shares in the railway company, and the right to exercise control 
 over the railway company through the ownership and control of those 
 shares. * * * 
 
 Having authority to acquire this stock the land company became 
 the sole stockholder in the railway company. Each had express au- 
 thority to borrow money and issue bonds to carry out the purposes of 
 the organization. The completion of this railway was an object 
 within the scope of its charter powers. It could do so by its own 
 name, or by aiding the railway company to negotiate its securities by 
 guarantying their payment. The guaranty was not for the accom- 
 modation of the railway company. The guarantor being the sole 
 shareholder of the railway company, it was a contract for its own ben- 
 efit, and therefore rested upon a sufficient security. In addition, the 
 land company was a creditor of the railway company, and was to, 
 and did receive the proceeds arising from sale of one-half million of 
 these bonds. The remainder of the money thus raised was to be ap- 
 plied to the building of the railway line. The consideration was suf- 
 ficient to fully support the contract. * * * 
 
 One railway company, under authority of law, leased the line of 
 another for a term of years. The consideration of the lease was an an- 
 nual rental, and that the lessee company should guaranty the principal
 
 956 TOD ET AL. V. KENTUCKY UNION LAND CO. ET AL. 2/4 
 
 and interest of bonds to be issued by the lessor company. The con- 
 tract of guaranty was challenged as ultra vires. The lessee company 
 had no express authority to make such contract of guaranty, but did 
 have power to make all such contracts as were usual and proper in 
 the building and operation of the railway, and it likewise had power 
 to lease the line of the lessor company. It was held that the consid- 
 eration was sufficient and the guaranty valid. The court was of opin- 
 ion that it was as competent for the company to promise to pay con- 
 ditionally as to promise to pay absolutely ; that the validity of the 
 agreement depended upon the sufficiency of the consideration. The 
 right to take the lease being express, it was a good consideration for 
 the conditional promise involved by a contract guaranty. Low v. 
 Railroad Co. , 52 Cal. 53. See, also, Smead v. Railroad Co., n Ind. 
 104, and Zabriskie v. Railroad Co., 23 How. 381, where a general 
 authority to aid a connecting railroad company was held sufficient to 
 authorize the guarantying of the bonds of such road. Also, Mor. 
 Priv. Corp., 423. * * * 
 Guaranties held valid. 
 
 Note. Power to be surety or guarantor. 
 
 1. The general rule is that a corporation has no implied power to become 
 surety or guarantor in a matter not clearly authorized: 1846, Coleman v. R. 
 Co., 10 Beav. 1; 1858, Smead v. R. Co., 11 Ind. 104; 1865, Hall v. Auburn T. 
 P. Co., 27 Cal. 255, 87 Am. Dec. 75; 1895, Northside R. Co. v. Worthington, 
 8<* Texas 562, 53 Am. St. Rep. 778; 1899, Gilbert v. Seatco Mfg. Co., 98 Fed Rep. 
 208 ; 1899, M. V. Monarch Co. v. Farmers' & D. Bauk, 20 Ky. L. Rep. 1351, 49 S. 
 W. Rep. 317. But it seems that a guaranty may be binding if all the share- 
 holders agree, and no bonafide creditor's lights are affected, though the pur- 
 pose may be ultra vires. 1898, First National Bank, etc., v. Winchester, 119 
 Ala. 168, 72 Am. St. Rep. 904, and Murphy v. Ark. & L. L. Imp. Co., supra, 
 p. 950, and note. 
 
 2. There are, however, some well-defined exceptions to the general rule : 
 e. g., A corporation holding the securities of another party has the right to dis- 
 pose of them, and guarantee their payment in the ordinary course of business : 
 1868, Railroad v. Howard, 7 Wall (74 U. S.) 392; 1876, Arnot v. Erie R. Co., 
 67 N. Y. 315; 1891, Ellerman v. Chicago J. R. Co., 49 N. J. Eq. 217; 1898, Na- 
 tional Bank of Com. v. Allen, 90 Fed. Rep. 545. 
 
 A railroad company may guarantee the payment of the bonds and interest 
 of a company whose road it is authorized to lease: 1877, Low v. Railroad Co., 
 52 Cal. 53, 28 Am. Rep. 629; or the bonds of cities that are lawfully issued to aid 
 in its construction, 1868, Railroad v. Howard, 7 Wall. (74 TJ. S.) 392; or a 
 note given by a party for its right of way, 1900, Lake St. El. R. Co. v. Car- 
 michael, 184 111. 348, 56 N. E. Rep. 372; but a railroad company can not guar- 
 antee the profits of a connecting steamship company, 1846, Colman v. Rail- 
 road Co., 10 Beav. 1. 
 
 A land company with power to do whatever is necessary to the develop- 
 ment of the land may guarantee the bonds of a railroad company necessary 
 to the success of the land company: 1870, Vandall v. Dock Co., 40 Cal. 83; 
 1893, Mercantile Trust Co. v. Kizer, 91 Ga. 636; 1894, Marbury v. Kentucky 
 Union Land Co., 62 Fed. Rep. 335. But see, 1895, Northside R". Co. v. Worth- 
 ington, 88 Texas 562, 53 Am. St. Rep. 778. Such company may also build, 
 or help another corporation build, a saw-mill, 1875, Watts's Appeal, 78 Pa. 
 St. 370; or a bridge, 1894, Fort Worth City Co. v. Smith Bridge Co., 151 U. 
 S. 294, 14 Sup. Ct. Rep. 539. 
 
 So a lumber company may be a guarantor for a railroad necessary for its 
 success: 1893, Mercantile Co. v. Kizer, 91 Ga. 636; or for a builder who gets 
 his material from such company, 1896, Wheeler, Osgood, etc., Co. v. Ever-
 
 275 POWER TO FORM PARTNERSHIP. 957 
 
 ett, etc., Co., 14 Wash. 630; 1900, Wittmer Lumber Co. v. Rice. 23 Ind. App. 
 586, 55 N. E. Rep. 868. 
 
 Sec. 275. (5) Partnership. 
 
 MALLORY v. HANAUR OIL WORKS. 1 
 
 1888. IN THE SUPREME COURT OF TENNESSEE. 86 Tenn. Rep. 
 598-609, 20 Am. & E. C. C. 478. 
 
 Appeal in error from circuit court of Shelby county. 
 
 LURTON, J. This is an action of unlawful detainer, brought by 
 the Hanaur Oil Works, a corporation created under the General In- 
 corporation Act of 1875, and engaged in the manufacture of cotton- 
 seed oil at Memphis, Tenn. 
 
 The facts which raise the question to be determined are these : In 
 July, 1884, a contract was entered into by and between four corpora- 
 tions engaged in manufacturing cotton-seed oil at Memphis for the 
 formation of what is designated in the agreement as a "combination," 
 "syndicate," and "partnership." The contracting mills agreed to se- 
 lect a committee, composed of representatives from each corporation, 
 and to turn over to this committee the properties and machinery of 
 each mill, to be managed and operated by this committee, through 
 officers, agents and employes selected by them, for the common ben- 
 efit, the profits and losses of such operations to be shared in propor- 
 tions agreed upon. This arrangement was to last one year, but, with 
 consent of all, might be renewed for two additional years, and, as ap- 
 pears, was at the end of first year renewed for two other years, termi- 
 nating August i, 1887. * * * 
 
 The argument here has largely turned upon the correctness of the 
 charge of the circuit judge, who distinctly instructed the jury that the 
 contract between the Hanaur Company and the other four corporations 
 was a contract for a partnership between corporations, and that under 
 the charter of the Hanaur Oil Works it had no power to make such a 
 contract, and that it was, therefore, void, and that it had a right to 
 recover possession of its property, it being withheld solely under and 
 by virtue of an agreement ultra vires. 
 
 "A partnership," says Judge Story, "is usually defined to be a 
 voluntary contract between two or more competent persons to place 
 their money, effects, labor and skill, or some or all of them, in lawful 
 commerce or business, with the understanding that there shall be a 
 communion of the profits thereof between them." 
 
 Pothier says that "a partnership is a contract whereby two or more 
 persons put, or contract to put, something in common to make a law- 
 ful profit in common, and reciprocally engage with each other to ren- 
 der an account thereof." Story Part., 2. 
 
 A careful examination of this agreement discloses every material 
 element to a contract of partnership. The absolute ownership of the 
 
 1 Only part of opinion given.
 
 958 MALLORY V. HANAUR OIL WORKS. 2/5 
 
 corporate property, the mills, machinery, etc., is not conveyed to the 
 partnership, nor is this necessary. The beneficial use of all such 
 property is surrendered to the common purpose. The provisions for 
 the complete possession, control and use of the properties of the sev- 
 eral corporations by the partnership or syndicate is perfect. Nothing 
 is left to the several corporations but the right to receive a share of 
 the profits and participate in the management and control of the con- 
 solidated interests as one of the new association. The contract is, 
 both technically and in its essential character, a partnership in so far as 
 it is possible for corporations to form such an association. 
 
 It is, however, argued by the learned counsel for appellants that if 
 it be a partnership, that it does not, therefore, follow that it is ultra 
 vires ; that such a contract, not being prohibited by law or the char- 
 ter of the defendant in error, or against public policy, is not void, 
 even if in excess of power expressly conferred ; that the business pro- 
 posed by the contract, being within the purposes of the charter, is, 
 therefore, within the implied powers of the corporation, and not ultra 
 vires. In other words, "that the question is not whether the corpo- 
 ration had, by virtue of the act of incorporation, authority to make 
 the contract, but whether they are by those statutes forbidden to do 
 it." In this doctrine we do not concur. There is, however, respect- 
 able authority for the position. A corporation, being an artificial cre- 
 ation, is the very thing it is made by the statute which brings it into 
 being, and nothing more. The extent of its powers are those enu- 
 merated in its charter, or implied by fair and natural construction of 
 powers expressly conferred. 
 
 The charter is the measure of its powers, and the enumeration 
 thereof implies the exclusion of all others. We are not to look to the 
 charter to see whether the thing done be prohibited, but whether there 
 is authority to do it. These principles we understand to have the 
 support of the great weight of authority in this country, and to have 
 the sanction of the supreme court of the United States. Thomas v. 
 Railroad Co., 101 U.S. 71. 
 
 This view of the law has been the one entertained by this court, 
 and clearly and distinctly enforced in an opinion by the present chief 
 justice in the case of Elevator Company v. Memphis and Charleston 
 R. Co., i Pick. 703. The power to enter into a partnership is not 
 expressly or impliedly conferred by our act of 1875, under which the 
 Hanaur Oil Works is incorporated. Neither is such authority within 
 the implied powers of corporations. A partnership and a corporation 
 are incongruous. Such a contract is wholly inconsistent w r ith the scope 
 and tenor of the powers expressly conferred and the duties expressly 
 enjoined upon a corporation, whether it be a strictly business and pri- 
 vate corporation or one owing duties to the public, such as a com- 
 mon carrier. In a partnership each member binds the firm when act- 
 ing within the scope of the business. A corporation must act through 
 its directors or authorized agents, and no individual member can, as 
 such member, bind the corporation.
 
 275 POWER TO FORM PARTNERSHIP. 959 
 
 Now, if a corporation be a member of a partnership it may be 
 bound by any other member of the association, and in so doing he 
 would act, not as an officer or agent of the corporation, and by virtue 
 of authority received from it, but as a principal in an association in 
 which all are equal, and each capable of binding the society by his 
 acts. The whole policy of the law creating and regulating corpora- 
 tions looks to the exclusive management of the affairs of each corpo- 
 ration by the officers provided for or authorized by its charter. This 
 management must be separate and exclusive, and any arrangement by 
 which the control of the affairs of the corporation should be taken 
 from its stockholders and the authorized officers and agents of the cor- 
 poration would be hostile to the policy of our general incorporation 
 acts. The decided weight of authority is that a corporation has not 
 the power to enter a partnership, either with other corporations or 
 with individuals. Says Mr. Mprawetz: "It seems clear that corpo- 
 rations are not impliedly authorized to enter into partnership with 
 other corporations or individuals. The existence of a partnership 
 not only would interfere with the management of the corporation by 
 its regularly appointed officers, but would impair the authority of the 
 shareholders themselves, and involve the company in new responsi- 
 bilities through agents over whom it had no control." i Morawetz 
 Corp., 421 ; Whittenton Mills v. Upton, 10 Gray 528 (s. c. 71 Am. 
 Dec. 681); Angell & Ames Corp., 272. 
 
 It is unnecessary to consider this contract as constituting a mere traffic 
 arrangement ; for the conclusion already announced that it was an ef- 
 fort to form a partnership, determines that in its scope and effect it 
 sought to accomplish much more than would be understood by the 
 phrase "traffic arrangement." * * * 
 
 Affirmed. 
 
 Note. Power to enter into partnership. 
 
 1. The general rule is that a corporation has no such power.unless expressly 
 authorized: 1831, Sharon Canal Co. v. Fulton Bank, 7 Wend. (N. Y.) 412* 
 1858, Whittenton Mills v. Upton, 10 Gray (Mass.) 582, 71 Am. Dec. 681 ; 1862, 
 Marine Bank v. Ogden, 29 111. 248; 1885, Gunn v. Central R. Co., 74 Ga. 509; 
 1890, People v. North River Sug. R. Co., 121 N. Y. 582, 18 Am. St. Rep. 843, 
 supra, p. 100; 1895, Aurora Bank v. Oliver, 62 Mo. App. 390; 1897, Sabine 
 Tram Co. v. Bancroft, 16 Texas Civ. App. 170, 40 S. W. Rep. 837 ; 1899, Mer- 
 chants' Nat'l Bank v. Standard W. Co., 6 Ohio N. P. 264. 
 
 2. Exceptions. Some exceptions have been recognized by the courts. Of 
 course, if expressly authorized there can be no question: 1878, Butler v. Am. 
 Toy Co., 46 Conn. 136. In, 1851, Catskill Bank v. Gray, 14 Barb. (N. Y.) 471, 
 it was held that an iron manufacturing company had implied power to be- 
 come a partner with an individual. In, 1876, Allen v. Woonsocket Co., 11 R. 
 I. 288, it was held that a corporation with undefined powers and a single 
 shareholder could become a member of a partnership strictly at will. And 
 in 1895, Bates v. Coronado Beach Co., 109 Cal. 160, it was held that a corpo- 
 ration could be a partner, if the management was left entirely to the corpora- 
 tion. 
 
 3. Although the corporation exceeds its powers by becoming a partner, it 
 will be liable to the extent of benefits received upon joint contracts: 1851, 
 Catskill Bank v. Gray, 14 Barb. (N. Y.) 471; 1862, Marine Bank v. Ogden, 29 
 111. 248 ; 1880, Clarkson v. Erie & N. S. D., 6 111. App. 284 ; 1887, Swift, etc., v. 
 Pacific Mail Steamship Co., 106 N. Y. 206; 1895, Northside R. Co. v. Worth-
 
 960 THE C., C. C. & I. RY. CO. V. CLOSSER ET AL. 2/6 
 
 ington, 88 Texas 562, 53 Am. St. Rep. 778. And also may recover for its 
 share of benefits conferred: 1831, N. Y. & S. Canal Co. v. Fulton Bank, 7 
 Wend. 412; 1899, Wilson v. Carter Oil Co., 46 W. Va. 469, 33 S. E. Rep. 249. 
 See, infra, corporations as joint tenants and tenants in common, 292, 293. 
 
 Sec. 276. (6) Trade combinations. 
 (a) Pools. 
 
 THE CLEVELAND, COLUMBUS, CINCINNATI AND INDIANAPOLIS 
 RAILWAY COMPANY v. CLOSSER Ex AL. 1 
 
 1890. IN THE SUPREME COURT OF INDIANA. 126 Ind. Rep. 348 
 369, 22 Am. St. Rep. 593. 
 
 ELLIOTT, J. The appellees were partners, under the name of 
 Closser & Co., and as such prosecute this action against the 'appellant. 
 They base their right of action upon contracts made with the appel- 
 lant wherein it undertook to transport grain from Indianapolis to the 
 seaboard, and they charge that the appellant agreed to receive, at the 
 time of the shipment, a designated sum as compensation for the trans- 
 portation of the grain, and to refund to them a certain part of the sum 
 received. They demand that the appellant be compelled to respond in 
 damages for a breach of the agreement to refund part of the money 
 paid to it as freight on the grain carried under the contracts. * * * 
 
 The second paragraph of the complaint alleges that the defendant 
 is, and long has been, a common carrier of goods, and that its custom 
 of long standing is to make contracts for carrying grain from Indiana- 
 polis to the eastern cities ; that the plaintiffs have long been engaged 
 in the business of buying, selling and shipping grain ; that on the first 
 day of November, 1884, the plaintiffs, under the firm name of Clos- 
 ser & Co., entered into a contract with the defendant whereby it 
 undertook to transport grain from a station on its road, known as 
 Union City, to the city of New York ; that at the time this contract 
 was made "there was no open and established rate of freight charges 
 for carrying such grain, except a certain rate agreed upon between the 
 defendant and other railway companies owning competing lines ; the 
 rate so fixed by the competing companies was established by an 
 agreement made by them for the purpose of preventing competition," 
 and was enforced and maintained, in so far as it was enforced and 
 maintained, by an agency of such companies established for that pur- 
 pose, and called a "pool" ; that the "pool" was managed by a per- 
 son selected by the companies for that purpose, and called a "pool 
 commissioner"; that at the time mentioned all the railway companies 
 that "were so located or situated as to be competitors for such freight 
 were parties to said arrangement and "pool" ; that the rate established 
 by the combination of common carriers was 21 ^4 cents per hundred- 
 weight; that the defendant, "notwithstanding such combination and 
 pool, offered and gave to Closser & Co. an inducement for shipping 
 
 1 Statement abridged ; only part of opinion given.
 
 2/6 POWER AS TO TRADE COMHINATIONS. 961 
 
 freight over its lines at a rate lower than that fixed by the combina- 
 tion and 'pool' , but, in order to do this and be able to report to the 
 pool commissioner that such pool rate had been charged," the defend- 
 ant "requested Closser & Co., when shipping freight over its lines, 
 to pay the pool rate, and agreed at the same time with Closser & 
 Co. to pay a certain portion of the pool rate so charged, as a rebate, 
 in order that the shippers might, in the end, be only required to pay 
 the rate fixed by the defendant" ; that "in this manner and for this 
 purpose the defendant did, on the same day, agree with Closser &Co., 
 in respect to the shipment of grain, that Closser &,Co. should pay the 
 pool rate of 21 y? cents per hundred-weight, and that the defendant 
 would thereupon repay to them 4^ cents on every hundred-weight 
 of grain so shipped as a rebate, so that they should, in the end, pay as 
 freight upon such shipment but 17 cents per hundred-weight, which 
 was then, in fact, the rate of defendant for such freight between said 
 points as then agreed upon, which rebate the defendant agreed to pay 
 promptly after such shipment." It is also alleged that grain was 
 shipped by Closser & Co., under the contract, and that they paid the 
 pool" rate. * * * Decision below for plaintiff. 
 
 The central question is as to the validity of the contracts between 
 the rival railroad companies. * * * 
 
 We preface our discussion of the central question by saying that 
 we are not, at this point, dealing with the case where a combination 
 is formed for the purpose of preventing ruinous competition, and in 
 which there is no design to stifle fair competition. We are not re- 
 quired to decide, nor do we decide, that combinations fair to the pub- 
 lic, untainted by any sinister design, and formed solely to prevent the 
 destruction of business by unregulated competition, may not be valid. 
 There are, we know, cases sanctioning the doctrine that combinations 
 may be formed where the purpose is lawful, and the means employed 
 not forbidden by positive law or high considerations of public policy. 
 Central Trust, etc., Co. v. Ohio Central R. Co., 23 Am. & Eng. R. 
 Cases 666; Boston Chamber of Commerce v. Lake Shore, etc., R. 
 Co., 32 Am. & Eng. R. Cases 618; Hare v. London, etc., R. Co., 
 2 J. & H. 80; Leslie v. Lorillard, no N. Y. 519; Manchester, 
 etc., R. Co. v. Concord R., 8 R. & Corp. Law Journal 443. The 
 doctrine of these cases we neither affirm nor deny; we do, however, 
 declare that they are not relevant to the matter here in dispute. It is, 
 however, both appropriate and necessary to adjudge that a combina- 
 tion between common carriers to prevent competition is, at least, prima 
 facie illegal. The doubt is as to whether any ultimate purpose can 
 save it from the condemnation of the law ; there can be no doubt that, 
 unexplained, such a combination for such a purpose is condemned by 
 public policy. If such a combination can, in any event, be ad- 
 mitted to be legal, it can only be so where it is affirmatively shown 
 that its object was to prevent ruinous competition, and that it does not 
 establish unreasonable rates, unjust discriminations or oppressive reg- 
 ulations. If such a contract can stand it must be upon an affirmative 
 showing, and one so full, complete and clear, as to remove the pre- 
 61 WIL. CASES.
 
 962 THE C., C. C. & I. RY. CO. V. CLOSSER ET AL. 2/6 
 
 sumption (to which its existence, in itself, gives rise) that it was 
 formed to do mischief to the public by repressing fair competition. 
 The burden is on the carrier to remove the presumption, and until it 
 is removed the agreement providing for the combination gives way be- 
 fore this presumption, and the agreement must be held to be within 
 the condemnation directed against all contracts which violate public 
 policy. 
 
 Coming to the question which awaits our judgment, and to which 
 we have cleared our path, we affirm that a contract between corpora- 
 tions charged with a public duty, such as is that of common carriers, 
 providing for the formation of a combination having no other purpose 
 than that of stifling competition, and providing means to accomplish 
 that object, is illegal. The purpose to break down competition poi- 
 sons the whole contract, and there is here no antidote which will res- 
 cue it from legal death. The element which destroys the contract is 
 the purpose to stifle competition, for a combination of rival carriers, 
 moved and controlled by that purpose alone, is destructive of public 
 interest, and, to the last degree, antagonistic to sound public policy. 
 The principle on which this rule rests is a very old one, and its place 
 in the law is very firm. The overshadowing element in this case, and 
 in kindred cases, is the purpose which influences the parties in uniting 
 themselves in a combination, and concerting means to make its pur- 
 pose effective, for the law abhors a combination which has for its 
 principal object the suppression of competition in matters of com- 
 merce in which the public have an interest. * * * 
 
 Relevant and striking illustrations of the scope and force of the 
 general principle are supplied by what are known as "The Sugar 
 Trust Cases," decided by the courts of New York cases rich in 
 argument and authority. People v. North River Sugar Refining Co., 
 22 Abbott N. Cases 164; see, also, Law Literature of Trust Combi- 
 nations, etc., 23 Abbott N. Cases 317; People v. North River Sugar 
 Refining Co., 121 N. Y. 582. 1 The authorities collected in those 
 cases demonstrate the proposition that a trust, or combination, having 
 for its purpose the suppression of free competition, can not live where 
 the common law prevails. There are, however, cases which, on their 
 facts, bear a closer resemblance to the present than the sugar trust 
 cases; but, after all, it may be said with propriety the important 
 thing to be secured is a sound and salutary general principle, and not 
 merely cases with closely resembling facts. There is no difficulty in 
 securing the principle we seek, for cases almost without number as- 
 sert and enforce it in an almost endless variety of forms and phases. 
 
 One of the cases near akin to the one before us is that of Hooker v. 
 Vandewater, 4 Denio 349. In that case competing canal companies 
 combined, and agreed to fix an established rate of freight, and to di- 
 vide profits. The agreement was adjudged illegal, the court saying, 
 among other things, that "It is a general proposition that an agree- 
 ment to do an unlawful act can not be supported at law that no right 
 of action can spring out of an illegal contract ; and this rule applies 
 
 1 Supra, p. 100.
 
 2/7 POWER AS TO TRADE COMBINATIONS. 963 
 
 not only when the contract is expressly illegal, but whenever it is op- 
 posed to public policy." Still closer is the resemblance between 
 this case and that of Texas, etc., R. Co. v. Southern Pacific R. 
 Co., 41 La. Ann. 970. The court there held a "pooling contract" 
 substantially the same as the one described in the appellees' com- 
 plaint to be void, and in support of its ruling referred to the cases of 
 Gibbs v. Consolidated Gas Co., 130 U. S. 396; Woodstock Iron Co. 
 v. Richmond, etc., Extension Co., 129 U. S. 643; Morris Run Coal 
 Co. v. Barclay Coal Co., 68 Pa. St. 173; Arnot v. Pittson, etc., 
 Coal Co., 68 N. Y. 558; Craft v. McConoughy, 79 111. 346; Morrill 
 v. Boston, etc., R., 55 N. H. 531; Jackson v. McLean, 36 Fed. 
 Rep. 213 ; Santa Clara Valley, etc., Co. v. Hayes, 18 Pac. Rep. 391 ; 
 Fireman's Charitable Association v. Berghaus, 13 La. Ann. 209; 
 Indiana Bagging Association v. Kock, 14 La. Ann. 168; Glasscock 
 v. Wells, 23 La. Ann. 517, and Cummings v. Saux, 30 La. Ann. 207. 
 
 The authorities found on every hand not only fully support our 
 conclusion that a contract between competing carriers, forming a 
 combination for the purpose of stifling competition, is j>rima facie 
 illegal, but many of them carry the principle to a much greater length ; 
 it is enough for us, however, that the law, as it has long existed, sus- 
 tains the conclusion we here affirm, since it is neither necessary nor 
 proper for us to go beyond the case before us for judgment. * * * 
 
 Judgment affirmed. 
 
 Note. The following cases hold pooling contracts void : 1848, Stanton v. 
 Allen, 5Denio (N. Y.) 434; 1871, Morris Run, etc., Co. v. Barclay Coal Co., 
 68 Pa. St. 173; 1875, Morrill v. Railroad Co., 55 N. H. 531 ; 1877, Wilson v. 
 Harlem & N. Y. Nav. Co., 52 How. Pr. (N. Y.) 348; 1881, Burke, etc., v. Con- 
 cord, etc., R., 61 N. H. 161 ; 1883, Denver & N. O. R. Co. v. A., T. & S. F. R. 
 Co., 15 Fed. Rep. 650, 110 U. S. 667; 1883, State v. Concord, etc., R., 13 Am. 
 & Eng. R. Cas. (N. H.) 94; 1888, Gibbs v. Gas Co., 130 U. S. 396; 1889, 
 Anderson v. Jett, 11 Ky. L. Rep. 570, 12 S. W. Rep. 670; 1889, Texas & Pac. 
 R. v. Southern Pac., etc., R., 41 La. Ann. 970; 1894, C. M. & St. Paul R. v. 
 Wabash, St. L. & P. R., 61 Fed. Rep. 993; 1896, United States v. Trans-Mis- 
 souri Frt. Assn., 166 U.S. 290; 1898, United States v. Joint Traffic Assn., 171 TT. 
 S. 505, 19 Sup. Ct. 25, reverses 76 Fed. Rep. 895 (C. C.),and 89 Fed. Rep. 1020 
 (C. C. A.) ; 1899, State v. Fireman's Fund Ins. Co., 152 Mo. 1, 52 S. W. Rep. 
 595. 
 
 See note at end of the next case. 
 
 Sec. 277. Same. 
 
 MANCHESTER AND LAWRENCE RAILROAD v. CONCORD 
 RAILROAD. 1 
 
 1889. IN THE SUPREME COURT OF NEW HAMPSHIRE. 66 New 
 Hampshire Rep. 100134. 
 
 [Bill in equity for a discovery and an accounting. Defendants 
 filed special pleas, to which the plaintiffs demurred. Defendants de- 
 murred to the parts of the bill not covered by the pleas.] 
 
 1 Only part of opinion given.
 
 964 MANCHESTER & LAWRENCE R. R. V. CONCORD R. R. 
 
 BLODGETT, J. * * * The second plea avers, and the demur- 
 rer admits, that at the time of the making of the contracts between 
 the parties and of the dealings thereunder, their respective roads "were 
 rival and competing railroads, by the competition of which the prices 
 of transportation thereon were, and but for said supposed contracts, 
 dealings, transactions, operations and business, would have continued 
 to be, materially reduced, and said alleged contracts, dealings, transac- 
 tions and business were made and had for the purpose of destroy- 
 ing and preventing such competition, and did destroy and prevent it.'* 
 
 It will be noticed that there is no averment in the plea that the pur- 
 pose of the contracts was to raise the pi-ices of transportation above a 
 reasonable standard, or that they did have this effect, or that the pub- 
 lic were prejudiced by their operation in any manner; .and the naked 
 question presented then is, whether all contracts between rival rail- 
 way corporations which prevent competition are necessarily contrary 
 to public policy, and therefore mala prohibita and illegal in them- 
 selves. 
 
 To state this question is to answer it in the negative, because it is 
 obvious that the answer depends upon circumstances. While, with- 
 out doubt, contracts which have a direct tendency to prevent a 
 healthy competition are detrimental to the public and consequently 
 against public policy, it is equally free from doubt that when such 
 contracts prevent an unhealthy competition and yet furnish the public 
 with adequate facilities at fixed and reasonable rates, they are beneficial 
 and in accord with sound principles of public policy. For the lessons 
 of experience, as well as the deductions of reason, amply demonstrate 
 that the public interest is not subserved by competition which reduces 
 the rate of transportation below the standard of fair compensation ; 
 and the theory which formerly obtained, that the public is benefited 
 by unrestricted competition between railroads has been so emphatic- 
 ally disproved by the results which have generally followed its adop- 
 tion in practice, that the hope of any permanent relief from ex- 
 cessive rates through the competition of a parallel or rival road may r 
 as a rule, be justly characterized as illusory and fallacious. 
 
 Upon authority, also, arrangements and contracts between compet- 
 ing railroads, by which unrestrained competition is prevented, do not 
 contravene public policy. Hare v. Railway Co., 2 Johns. & H. 80, 
 is directly in point. In that case a bill in chancery had been brought 
 by a stockholder in the defendant company to annul an agreement 
 between two railway companies to divide the profits of the traffic in 
 fixed proportions; and it was admitted there, as it is here, that the 
 .purpose of the agreement was to prevent competition. In dismissing 
 the bill, Vice-Chancellor Wood said, page 103, "With regard to the 
 argument against the validity of the agreement, I may clear the 
 ground of one objection by saying that I see nothing in the alleged 
 injury to the public arising from the prevention of competition. * * * 
 It is a mistaken notion that the public is benefited by pitting two rail- 
 way companies against each other till one is ruined, the result being 
 at last to raise the fares to the highest possible standard." So, also,
 
 2/7 POWER AS TO TRADE COMBINATIONS. 965 
 
 in i Red. Railroads, 146, 2, it is said, "There is no principle of 
 public policy which renders void a traffic arrangement between two lines 
 of railway for the purpose of avoiding competition." And Mr. Mora- 
 wetz says, in his admirable treatise on corporations, "Public policy 
 clearly does not demand that railroad companies operating competing 
 lines shall engage in strife, causing their financial ruin ; and, so far as 
 agreements among companies are designed to effect this result, their 
 purpose is not injurious to the public or illegal. Moreover, such 
 agreements are positively beneficial to the public so far as they pre- 
 vent the fluctuation of rates and unjust discriminations among ship- 
 pers, which invariably attend the unrestricted competition of rival 
 companies. It is therefore impossible to support the proposition that 
 all agreements among railroad companies which restrict competition 
 are condemned by law. Some such agreements may be contrary to 
 public policy and unlawful ; but if an agreement of this character is a 
 reasonable business arrangement to protect the shareholders and cred- 
 itors of the companies from loss, and does not cause unreasonably 
 high charges or violate any duty which the companies owe to the 
 public, it should be sustained and enforced by the courts." Mor. 
 Corp. (2d ed.), 1131. In the same section, in speaking of contracts 
 in restraint of trade (to which many of the authorities and much of 
 the argument for the defendants relate) he says: "Even if there were 
 such a rule as has been claimed applicable to competition in trade, 
 the principle and policy of the rule would not be applicable to traffic 
 arrangements designed merely to prevent ruinous competition and 
 'wars' among railroad companies. The main objection which has 
 been urged against combinations restraining competition in trade, 
 namely, that such combinations tend to produce monopolies and 
 cause extortion, has no application to combinations among railroad 
 companies, for railroad companies are prohibited by law to charge 
 more than reasonable rates. It should be observed, also, that compe- 
 tition among railroad companies has not the same safeguards as com- 
 petition in trade. Persons will ordinarily do business only when 
 they think they see a fair chance of profit ; and if press of competi- 
 tion renders a particular trade unprofitable, those engaged in that 
 trade will suspend or reduce their operations, and apply their capital 
 and labor to other uses until a reasonable margin of profit has been 
 reached. But the capital invested in the construction of a railroad 
 can not be withdrawn when competition renders the operation of the 
 road unprofitable. A railroad is of no use except for railroad pur- 
 poses, and if, (he operation of the road were stopped, the capital 
 invested in its construction would be wholly lost. Hence it is for the 
 interest of a railroad company to operate its road, though the earnings 
 are barely sufficient to pay the operating expenses. The ownership of 
 the road may pass from the shareholders to the bondholders and be of 
 no benefit to the latter; but the struggle for traffic will continue so 
 long as the means of paying operating expenses can be raised. Unre- 
 stricted competition will thus render the competitive traffic wholly un- 
 remunerative, and will cause the ultimate bankruptcy of the company
 
 966 MANCHESTER AND LAWRENCE R. R. V. CONCORD R. R. 277 
 
 unless the portion of their traffic which is not the subject of competi- 
 tion can be made to bear the entire burden of the interest and fixed 
 charges." 
 
 The application of these principles to the plea under consideration 
 is patent and decisive. The geographical location and relative re- 
 sources of the two roads were such as to render it obvious that the 
 plaintiffs could not reasonably hope successfully to compete with their 
 more powerful rival. The alternatives presented, it may be safely 
 assumed, were combination or ruinous competition. They accepted 
 the former; and as the combination did not, so far as appears by the 
 pleadings, raise the rate of transportation above the standard of fair 
 compensation, or violate any duty that is owing to the public from 
 roads which are non-competing, there is nothing averred in the plea 
 which bars the right of the plaintiffs to an accounting with the defend- 
 ants. 
 
 Numerous cases have been cited in behalf of the defendants in sup- 
 port of their proposition that the combination between the parties 
 must be regarded as void at common law because against public pol- 
 icy. It is quite impossible, without extending this opinion beyond 
 all reasonable limits, to go through and comment upon these cases in 
 detail, as has been done in the last brief for the plaintiffs ; but it is 
 sufficient to say, in general terms, as is there said, that they are cases 
 of contracts in restraint of mercantile business; or cases of contracts 
 which attempt to derogate from the right of eminent domain inherent 
 in the state ; or cases where contracts between railroad companies 
 were held contrary to public policy because one of the parties at- 
 tempted to bind itself not to perform duties incident to the legal char- 
 acter of common carriers or public servants ; or cases where contracts 
 between railroad companies were held contrary to public policy be- 
 cause one of the parties agreed not to build, or to cease to operate, a 
 road which they were chartered to build or operate ; or cases where 
 contracts between railroad companies have been held illegal merely 
 on the ground that they were ultra vires ; in short, they do not estab- 
 lish a rule which fairly includes a case like the one at bar. The de- 
 murrer to the second plea is sustained. * * * 
 
 Plaintiffs' demurrers sustained^ and defendants' 1 overruled. 
 
 Note. The following cases hold pools to be valid, or at least not void under 
 all circumstances: 1861, Hare v. London & N. W. R. Co., 2 J. & H. 80; 1865. 
 Hartford, etc., R. v. N. Y., etc., R., 3 Rob. (N. Y.) 411 ; 1868, Sussex R. Co, 
 v. Morris and Essex R., 19 N. J. Eq. 13; 1882, Elkins v. Camden & A. R., 36 
 N. J. Eq. 234, 244; 1885, Central T. Co. v. Ohio Cent. R. Co., 23 Fed Rep. 
 306; 1886, Dolph v. Troy Laundry M. Co., 28 Fed. Rep. 553; 1888, Ives v. 
 Smith, 3 N. Y. Supp. 645; 1892, Mogul Steamship v. McGregor, App. Cas. 25; 
 1892, U. S. v. Trans-Mo. Frt. Assn., 53 Fed. Rep. 440; 1893, U. S. v. Trans- 
 Mo.. Frt. Assn., 58 Fed. Rep. 58, 19 U. S. App. 36, 7 C. C. A. 15 (these being 
 overruled by the supreme court, 166 U. S. 290) ; 1899, Post v. Southern R. Co.* 
 103 Tonn. 184, 16 Am. & E. R. Cas. (N. S.) 201.
 
 2/8 POWER AS TO TRADE COMBINATIONS. 967 
 
 Sec. 278. Same, (b) Contracts restraining trade and compe- 
 tition. 
 
 UNITED STATES v. ADDYSTON PIPE AND STEEL COMPANY ET AL. 
 
 1898. IN THE U. S. CIRCUIT COURT OF APPEALS, E. D. TENNESSEE. 
 
 85 Fed. Rep. 271. 
 
 [Appeal from the circuit court. Suit in equity by the attorney-gen- 
 eral of the United States against six corporations engaged in manufac- 
 turing cast iron pipe, charging them with a combination and conspir- 
 acy in restraint of inter-state commerce, contrary to the anti-trust law 
 passed by congress July 2, i89O. 2 The defendants were the Addyston 
 Co., of Cincinnati, Ohio, Long & Co., of Louisville, Ky., How- 
 ard-Harrison & Co., of Bessemer, Ala., Anniston Co., of Anniston, 
 Ala., South Pittsburgh Co., of South Pittsburgh, Tenn., and the 
 Chattanooga Co., of Chattanooga, Tenn. The petition prayed for a 
 seizure and confiscation of the pipe, a dissolution of the conspiracy 
 and a perpetual injunction against the same. Defendants admitted 
 the existence of an association for the purpose of avoiding ruinous 
 competition, but denied that it was in restraint of trade, created a mo- 
 nopoly or violated the anti-trust law. The circuit court dismissed the 
 petition. The evidence showed that the association had divided up 
 the United States into "pay" and "free" territory; the capacity of 
 the mills in the pay territory was 392,500 tons, 220,000 tons being 
 represented by the association, the other mills in the pay territory be- 
 ing located in Colorado, Texas, Oregon and St. Louis, with an aggre- 
 gate capacity of 57,500 tons, and at Columbus, Cleveland and New 
 Comerstown, Ohio, and Detroit, Mich., with an aggregate capacity 
 of 113,000 tons; the capacity of mills in the "free" territory was 
 348,000 tons, and they were located in eastern Virginia (14,000 tons), 
 four in eastern Pennsylvania (87,000 tons), three in New Jersey 
 (2 10,000 tons), and two in New York (35,000 tons) ; from these "free" 
 mills to the "pay" territory the freight rates varied from $2 to $6 per 
 ton. Within the "pay" territory of thirty-four states certain cities were 
 reserved to be supplied exclusively by a certain company, as, e. g., the 
 Addyston Company was to have the exclusive right to handle the business 
 of Cincinnati, Ohio, Covington and Newport, Ky. The plan contem- 
 plated was as follows : "All competition or pipe lettings shall take 
 place among the various pipe shops prior to said letting. To accom- 
 plish this purpose it is proposed that the six competitive shops have a 
 representative board located at some central city, to whom all inquir- 
 ies for pipe shall be referred, and said board shall fix the price at 
 which said pipe shall be sold, and bids taken from the respective 
 shops for the privilege of handling the order, and the party securing 
 
 1 Statement abridged and much of opinion omitted. This opinion should 
 be read in full, and carefully studied. It was affirmed, though the decree 
 was slightly modified by the United States Supreme Court. See 175 U. S. 211. 
 
 *See note, infra p. 977.
 
 968 U. S. V. ADDYSTON PIPE AND STEEL CO. ET AL. 2/8 
 
 the order shall have the protection of all the other shops." This 
 board proceeded as follows: "It was moved to sell the 519 pieces of 
 2O-inch pipe for Omaha, Neb., for $23.40 delivered. Carried. It 
 was moved that Anniston participate in the bonus, and the job be sold 
 over the table. Carried. Pursuant to the motion, the 519 pieces 20- 
 inch pipe for Omaha was sold to Bessemer at a premium of $8.20." 
 In a case of a letting at St. Louis, this city being reserved to the Bes- 
 semer (Ala.) Company, the price was fixed by the association at $24 
 per ton on 2,5oo tons, and the bonus at $6.50. Before the letting, 
 the vice-president of the Bessemer Company wrote to the other mem- 
 bers of the association saying, "I prefer that if any of you find it nec- 
 essary to put in a bid without going to St. Louis, please bid not less 
 than $27 for the pipe. * * * I would also like to know as to 
 which of you would find it convenient to have a representative at the 
 letting. It will be necessary to have two outside bidders." At the 
 letting the Addyston Company bid $24.37 anc ^ ^ e Louisville Com- 
 pany $24.57. The con tract being let to the Bessemer Company at 
 $24 ; the evidence showed that the Chattanooga Company could have 
 furnished the same at from $17 to $18 per ton at a profit. The 
 bonus or premium bid was to be paid to the other companies in pro- 
 portion to the capacities of the various mills. There was much other 
 evidence of a similar and confirmatory character.] 
 
 TAFT, C. J. * * * Two questions are presented in this case 
 for our decision : I. Was the association of the defendants a con- 
 tract, combination, or conspiracy in restraint of trade, as the terms are 
 to be understood in the act? 2. Was the trade thus restrained be- 
 tween the states ? 
 
 The contention on behalf of defendants is that the association 
 would have been valid at common law, and that the federal anti-trust 
 law was not intended to reach any agreements that were not void and 
 unenforcible at common law. It might be a sufficient answer to this 
 contention to point to the decision of the supreme court of the United 
 States in the United States v. Trans-Missouri Freight Assn., 166 U. 
 S. 290, 17 Sup. Ct. 540, in which it was held that contracts in re- 
 straint of interstate transportation were within the statute, whether the 
 restraints would be regarded as reasonable at common law or not. It 
 is suggested, however, that that case related to a quasi-public em- 
 ployment, necessarily under public control and affecting public inter- 
 ests, and that a less stringent rule of construction applies to contracts 
 restricting parties in sales of merchandise, which is purely a private 
 business, having in it no element of a public or quasi-public charac- 
 ter. Whether or not there is substance in such a distinction a ques- 
 tion we do not decide it is certain that, if the contract of association 
 which bound the defendants was void and unenforcible at the com- 
 mon law because in restraint of trade, it is within the inhibition of the 
 statute if the trade it restrained was interstate. Contracts that were 
 in unreasonable restraint of trade at common law were not unlawful 
 in the sense of being criminal, or giving rise to a civil action for dam- 
 ages in favor of one prejudicially affected thereby, but were simply
 
 2/8 POWER AS TO TRADE COMBINATIONS. 969 
 
 void, and were not enforced by the courts. Mogul Steamship Co. v. 
 McGregor, Gow & Co. (1892), App. Cas. 25; Hornby v. Close, L. 
 R. 2 Q. B. 153; Lord Campbell, C. J., in Hilton v. Eckersley, 6 
 El. & Bl. 47, 66: Hannen, J., in Farrer v. Close, L. R. 4 Q. B. 
 602, 612. The effect of the act of 1890 is to render such contracts 
 unlawful in an affirmative or positive sense, and punishable as a mis- 
 demeanor, and to create a right of civil action for damages in favor 
 of those injured thereby, and a civil remedy by injunction in favor of 
 both private persons and the public against the execution of such con- 
 tracts and the maintenance of such trade restraints. 
 
 The argument for defendants is that their contract of association 
 was not, and could not be, a monopoly, because their aggregate ton- 
 nage capacity did not exceed 30 per cent, of the total tonnage capac- 
 ity of the country ; that the restraints upon the members of the asso- 
 ciation, if restraints they could be called, did not embrace all the 
 states, and were not unlimited in space; that such partial restraints 
 were justified and upheld at common law if reasonable, and only pro- 
 portioned to the necessary protection of the parties ; that in this case the 
 partial restraints were reasonable, because without them each member 
 would be subjected to ruinous competition by the other, and did not 
 exceed in degree of stringency or scope what was necessary to protect 
 the parties in securing prices for their product that were fair and rea- 
 sonable to themselves and the public ; that competition was not stifled 
 by the association, because the prices fixed by it had to be fixed with 
 reference to the very active competition of pipe companies which 
 were not members of the association, and which had more than double 
 the defendant's capacity; that in this way the association only modi- 
 fied and restrained the*evils of ruinous competition, while the public 
 had all the benefit from competition which public policy demanded. 
 
 From early times it was the policy of Englishmen to encourage 
 trade in England, and to discourage those voluntary restraints which 
 tradesmen were often induced to impose on themselves by contracts. 
 Courts recognized this public policy by refusing to enforce stipulations 
 of this character. The objections to such restraints were mainly two. 
 One was that by such contracts a man disabled himself from earning 
 a livelihood, with the risk of becoming a public charge, and deprived 
 the community of the benefit of his labor. The other was that such 
 restraints tended to give to the covenantee, the beneficiary of such re- 
 straints, a monopoly of the trade, from which he had thus excluded 
 one competitor, and by the same means might exclude others. * * * 
 
 The inhibition against restraints of trade at common law seems at 
 first to have had no exception. See language of Justice Hull, Year 
 Book, 2 Hen. V., folio 5, pi. 26. After a time it became apparent 
 to the people and the courts that it was in the interest of trade that 
 certain covenants in restraint of trade should be enforced. It was of 
 importance, as an incentive to industry and honest dealing in trade, 
 that, after a man had built up a business with an extensive good-will, 
 he should be able to sell his business and good-will to the best of ad- 
 vantage, and he could not do so unless he could bind himself by an
 
 972 U. S. V. AUDYSTON PIPE AND STEEL CO. ET AL. 2/8 
 
 of the contract suggests the measure of protection needed, and fur- 
 nishes a sufficiently uniform standard by which the validity of such 
 restraints may be judicially determined. In such a case, if the 
 restraint exceeds the necessity presented by the main purpose of the 
 contract, it is void for two reasons : First, because it oppresses the 
 covenantor without any corresponding benefit to the covenantee ; and, 
 second, because it tends to a monopoly. But where the sole object 
 of both parties in making the contract as expressed therein is merely 
 to restrain competition, and enhance or maintain prices, it would 
 seem that there was nothing to justify or excuse the restraint, that it 
 would necessarily have a tendency to monopoly and therefore would 
 be void. In such a case there is no measure of what is necessary to 
 the protection of either party except the vague and varying opinion 
 of judges as to how much, on principles of political economy, men 
 ought to be allowed to restrain competition. There is in such con- 
 tracts no main lawful purpose to subserve which partial restraint is 
 permitted, and by which its reasonableness is measured, but the 
 sole object is to restrain trade in order to avoid the competition which 
 it has always been the policy of the common law to foster. 
 
 [Reviewing many cases.] ********* 
 
 Upon this review of the law and the authorities, we can have no 
 doubt that the association of the defendants, however reasonable the 
 prices they fixed, however great the competition they had to encoun- 
 ter, and however great the necessity for curbing themselves by joint 
 agreement from committing: financial suicide by ill-advised competi- 
 tion, was void at common law, because in restraint of trade, and 
 tending to a monopoly. But the facts of the case do not require us 
 to go so far as this, for they show that the attempted justification of 
 this association on the grounds stated is without foundation. 
 
 Another aspect of this contract of association brings it within the 
 term used in the statute, "a conspiracy in restraint of trade." A 
 conspiracy is a combination ol two or more persons to accomplish an 
 unlawful end by lawful means or a lawful end by unlawful means. In 
 the answer of the defendants, it is averred that the chief way in which 
 cast-iron pipe is sold is by contracts let after competitive bidding in- 
 vited by the intending purchaser. It would have much interfered 
 with the smooth working of defendants' association had its existence 
 and purposes become known to the public. A part of the plan was 
 a deliberate attempt to create in the minds of the members of the 
 public inviting bids the belief that competition existed between the 
 defendants. Several of the defendants were required to bid at every 
 letting, and to make their bids at such price's that the one already se- 
 lected to obtain the contract should have the lowest bid. 
 
 It is well settled that an agreement between intending bidders at a 
 public auction or a public letting not to bid against each other, and 
 thus to prevent competition, is a fraud upon the intending vendor or 
 contractor, and the ensuing sale or contract will be set aside. Bi'eslin 
 v. Brown, 24 Ohio St. 565; Atcheson v. Mallon, 43 N. Y. 147; 
 Loyd v. Malone, 23 111. 41 ; Wooten v. Hinkle, 20 Mo. 290; Phip-
 
 2/8 POWER AS TO TRADE COMBINATIONS. 9/3 
 
 pen v. Stickney, 3 Mete. (Mass.) 384; Kearney v. Taylor, 15 How. 
 494, 519; Wilbur v. How, 8 Johns. 444; Hannah v. Fife, 27 Mich. 
 172; Gibbs v. Smith, 115 Mass. 592; Swan v. Chorpenning, 20 Cal. 
 182; Gardiner v. Morse, 25 Maine 140; Ingram v. Ingram, 49 N. C. 
 188; Brisbane v. Adams, 3 N. Y. 129; Woodruff v. Berry, 40 Ark. 
 251; Wald Pol. Cont., 310, note by Mr. Wald, and cases cited. 
 The case of Jones v. North, L. R. 19 Eq. 426, to the contrary, can 
 not be supported. The largest purchasers of pipe are municipal cor- 
 porations, and they are by law required to solicit bids for the sale of 
 pipe in order that the public may get the benefit of competition. One 
 of the means adopted by the defendants in their plan of combination 
 was this illegal and fraudulent effort to evade such laws, and to de- 
 ceive intending purchasers. No matter what the excuse for the com- 
 bination by defendants in restraint of trade, the illegality of the means 
 stamps it as a conspiracy, and so brings it within that term of the fed- 
 eral statute. 
 
 The second question is whether the trade restrained by the combi- 
 nation of the defendants was interstate trade. * * * 
 
 In Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, a law 
 of Tennessee, which imposed a tax on all "drummers" who solicited 
 orders on samples, was held unconstitutional in so far as it applied to 
 the drummer of an Ohio firm, who was soliciting orders for goods to 
 be sent from Ohio to the purchasers in Tennessee, on the ground that 
 it was a tax on interstate commerce. In delivering the opinion of the 
 court in that case, Mr. Justice Bradley said (page 497, 120 U. S., 
 and page 596, 7 Sup. Ct.) that a tax on the sale of goods, or the offer 
 to sell them before they are brought into the state, was clearly a tax 
 on interstate commerce. He further said : 
 
 "The negotiation of sales of goods which are in another state, for 
 the purpose of introducing them into the state in which the negotia- 
 tion is made, is interstate commerce." 
 
 If then, the soliciting of orders for, and the sale of, goods in one 
 state, to be delivered from another state, is interstate commerce in its 
 strictest and highest sense such that the states are excluded by the 
 federal constitution from a right to regulate or tax the same, it seems 
 clear that contracts in restraint of such solicitations, negotiations, and 
 sales are contracts in restraint of interstate commerce. The anti-trust 
 law is an effort by congress to regulate interstate commerce. Such 
 commerce as the states are excluded from burdening or regulating in 
 any way by tax or otherwise, because of the power of congress to reg- 
 ulate interstate commerce, must, of necessity, be the commerce which 
 congress may regulate, and which, by the terms of the anti-trust law, 
 it has regulated. We can see no escape from the conclusion, there- 
 fore, that the contract of the defendants was in restraint of interstate 
 commerce. * * * 
 
 Reversed. 
 
 Corporate Combinations. 
 
 Note: See decision in supreme court of U. S., 175 IT. S. 21 1, infrn, p. LW). 
 1. In general. In the discussion of this topic two principles should be kept
 
 972 U. S. V. ADDYSTON PIPE AND STEEL CO. ET AL. 2/8 
 
 of the contract suggests the measure of protection needed, and fur- 
 nishes a sufficiently uniform standard by which the validity of such 
 restraints may be judicially determined. In such a case, if the 
 restraint exceeds the necessity presented by the main purpose of the 
 contract, it is void for two reasons : First, because it oppresses the 
 covenantor without any corresponding benefit to the covenantee ; and, 
 second, because it tends to a monopoly. But where the sole object 
 of both parties in making the contract as expressed therein is merely 
 to restrain competition, and enhance or maintain prices, it would 
 seem that there was nothing to justify or excuse the restraint, that it 
 would necessarily have a tendency to monopoly and therefore would 
 be void. In such a case there is no measure of what is necessary to 
 the protection of either party except the vague and varying opinion 
 of judges as to how much, on principles of political economy, men 
 ought to be allowed to restrain competition. There is in such con- 
 tracts no main lawful purpose to subserve which partial restraint is 
 permitted, and by which its reasonableness is measured, but the 
 sole object is to restrain trade in order to avoid the competition which 
 it has always been the policy of the common law to foster. 
 
 [Reviewing many cases.] ********* 
 
 Upon this review of the law and the authorities, we can have no 
 doubt that the association of the defendants, however reasonable the 
 prices they fixed, however great the competition they had to encoun- 
 ter, and however great the necessity for curbing themselves by joint 
 agreement from committing financial suicide by ill-advised competi- 
 tion, was void at common law, because in restraint of trade, and 
 tending to a monopoly. But the facts of the case do not require us 
 to go so far as this, for they show that the attempted justification of 
 this association on the grounds stated is without foundation. 
 
 Another aspect of this contract of association brings it within the 
 term used in the statute, "a conspiracy in restraint of trade." A 
 conspiracy is a combination ofr two or more persons to accomplish an 
 unlawful end by lawful means or a lawful end by unlawful means. In 
 the answer of the defendants, it is averred that the chief way in which 
 cast-iron pipe is sold is by contracts let after competitive bidding in- 
 vited by the intending purchaser. It would have much interfered 
 with the smooth working of defendants' association had its existence 
 and purposes become known to the public. A part of the plan was 
 a deliberate attempt to create in the minds of the members of the 
 public inviting bids the belief that competition existed between the 
 defendants. Several of the defendants were required to bid at every 
 letting, and to make their bids at such prices that the one already se- 
 lected to obtain the contract should have the lowest bid. 
 
 It is well settled that an agreement between intending bidders at a 
 public auction or a public letting not to bid against each other, and 
 thus to prevent competition, is a fraud upon the intending vendor or 
 contractor, and the ensuing sale or contract will be set aside. Breslin 
 v. Brown, 24 Ohio St. 565; Atcheson v. Mallon, 43 N. Y. 147; 
 Loyd v. Malone, 23 111. 41 ; Wooten v. Hinkle, 20 Mo. 290; Phip-
 
 2/8 POWER AS TO TRADE COMBINATIONS. 9/3 
 
 pen v. Stickney, 3 Mete. (Mass.) 384; Kearney v. Taylor, 15 How. 
 494, 519; Wilbur v. How, 8 Johns. 444; Hannah v. Fife, 27 Mich. 
 172; Gibbs v. Smith, 115 Mass. 592; Swan v. Chorpenning, 20 Cal. 
 182; Gardiner v. Morse, 25 Maine 140; Ingram v. Ingram, 49 N. C. 
 188; Brisbane v. Adams, 3 N. Y. 129; Woodruff v. Berry, 40 Ark. 
 251; Wald Pol. Cont., 310, note by Mr. Wald, and cases cited. 
 The case of Jones v. North, L. R. 19 Eq. 426, to the contrary, can 
 not be supported. The largest purchasers of pipe are municipal cor- 
 porations, and they are by law required to solicit bids for the sale of 
 pipe in order that the public may get the benefit of competition. One 
 of the means adopted by the defendants in their plan of combination 
 was this illegal and fraudulent effort to evade such laws, and to de- 
 ceive intending purchasers. No matter what the excuse for the com- 
 bination by defendants in restraint of trade, the illegality of the means 
 stamps it as a conspiracy, and so brings it within that term of the fed- 
 eral statute. 
 
 The second question is whether the trade restrained by the combi- 
 nation of the defendants was interstate trade. * * * 
 
 In Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, a law 
 of Tennessee, which imposed a tax on all "drummers" who solicited 
 orders on samples, was held unconstitutional in so far as it applied to 
 the drummer of an Ohio firm, who was soliciting orders for goods to 
 be sent from Ohio to the purchasers in Tennessee, on the ground that 
 it was a tax on interstate commerce. In delivering the opinion of the 
 court in that case, Mr. Justice Bradley said (page 497, 120 U. S., 
 and page 596, 7 Sup. Ct.) that a tax on the sale of goods, or the offer 
 to sell them before they are brought into the state, was clearly a tax 
 on interstate commerce. He further said: 
 
 "The negotiation of sales of goods which are in another state, for 
 the purpose of introducing them into the state in which the negotia- 
 tion is made, is interstate commerce." * * * 
 
 If then, the soliciting of orders for, and the sale of, goods in one 
 state, to be delivered from another state, is interstate commerce in its 
 strictest and highest sense such that the states are excluded by the 
 federal constitution from a right to regulate or tax the same, it seems 
 clear that contracts in restraint of such solicitations, negotiations, and 
 sales are contracts in restraint of interstate commerce. The anti-trust 
 law is an effort by congress to regulate interstate commerce. Such 
 commerce as the states are excluded from burdening or regulating in 
 any way by tax or otherwise, because of the power of congress to reg- 
 ulate interstate commerce, must, of necessity, be the commerce which 
 congress may regulate, and which, by the terms of the anti-trust law, 
 it has regulated. We can see no escape from the conclusion, there- 
 fore, that the contract of the defendants was in restraint of interstate 
 commerce. 
 
 Reversed. 
 
 * # * 
 
 Corporate Combinations. 
 
 Note: See decision in supreme court of U. S., 175 II. S. 211, infra, |>. 
 
 1. In general. In the discussion of this topic two principles should be kc[>fc
 
 974 U. S. V. AUDYSTON PIPE AND STEEL CO. ET AL. 2/S 
 
 constantly in mind, one based upon the nature of a corporation is, that the 
 grant of corporate power is a franchise granted by the state for a definite pur- 
 pose, to be exercised in a way prescribed, and subject to forfeiture by the 
 state if it is not carried out in accordance with the grant; the second is based 
 upon public policy, viz., that combination agreements of individuals, part- 
 nerships, or corporations, with the purpose and effect (with certain excep- 
 tions) of restraining trade, destroying competition, and resulting in monopoly, 
 are unenforcible, and under some circumstances wrongful, tortious or crim- 
 inal. 
 
 2. The first principle, that a corporation must not abdicate its purpose or prescribed 
 method of management, is well expressed in Whittenton Mills v. Upton, 10 
 Gray (Mass.) 582 (1858), by Thomas, J., where the question involved was 
 whether a corporation could be a member of a partnership. He paid: "An 
 act of the corporation, done either by direct vote or by agents authorized for 
 the purpose, is the manifestation of the collected will of the society. No 
 member of the corporation, as such, can bind the society. In a partnership 
 each member binds the society as a principal. If, then, this corporation may 
 enter into partnership with an individual, there would be two principals, the 
 legal person and the natural person, each having, within the scope of the 
 society's business, full authority to manage its concerns, including even the 
 disposition of its property. * * * The partner may manage and conduct 
 the business of the corporation, and bind it by his acts. In doing so he does 
 not act as an officer or agent of the corporation by authority received from.it, 
 but as a principal in a society in which all are equals, and each capable of 
 binding the society by the act of its individual will." This agreement was 
 held void. Such agreements, if valid, would have the effect, as Judge Finch 
 says, in People v. North River Sugar Ref. Co., 121 N. Y. 582 (1890), supra, 
 p. 100, to permit a corporation " to accept from the state the gift of corporate 
 life only to disregard the conditions upon which it was given; to receive its 
 powers and privileges merely to put them in pawn; and to give away to an 
 irresponsible board (or person) its entire independence and self-control.'" 1 So, too, 
 it would have the effect of conferring upon the partner the capacity of wield- 
 ing or enjoying corporate power without the states' grant being made to him. 
 The same doctrines are stated in Mallory v. Hanaur Oil Works, 86 Tenn. 598, 
 supra, p. 957. 
 
 The above were all cases of purely private business corporations, not those 
 owing any special duty to the public. The rule applies, of course, with more 
 reason and more strictness to quasi-public corporations, or those owing partic- 
 ular duties to the public. As stated by Justice Miller in Thomas v. West Jer- 
 sey R. Co., 101 U. S. 71 (1879), supra, p~915 ; " Where acorporation, like a rail- 
 road company, has granted to it by charter a franchise intended, in large 
 measure, to be exercised for the public good, the due performance of those 
 functions being the consideration of the public grant, any contract which dis- 
 ables the corporation from performing those functions, which undertakes, 
 without the consent of the state, to transfer to others the rights and powers 
 conferred by the charter, and to relieve the grantees of the burden which it 
 imposes, is a violation of the contract with the state, and is void as against 
 public policy." While Justice Miller says such contract is void as against 
 public policy, he evidently means that it is void because it is in conflict with a 
 definite rule of law, viz., that corporations are accountable to the state for 
 non-user or rnis-u^er of the franchises granted, and not that only quasi-public 
 corporations are so accountable. (Pee infra, this note, class d.) 
 
 From these principles, therefore, it follows that all contracts of a corpora- 
 tion, either private or quasi-pnbMc, to enter into combinations, whether of part- 
 nership, pool, restraint of trade, trust, lease, consolidation, sale or otherwise, 
 the necessary effect of which is to destroy its autonomy in the performance of 
 its duty to the state, are, or ought to bo, held to be void and unenforcible, and 
 this so, regardless of any other quality of the contract. And it is generally 
 held so, although there are holdings to the contrary (erroneously we think), 
 in the case of leases and sales by purely private corporations. See cases 
 cited in notes to 275, 276, 277, 279-282, and below, class d in this note.
 
 2?8 POWER AS TO TRADE COMBINATIONS. 975 
 
 While a contract by a corporation violating this principle alone is not crim- 
 inal or wrongful, it is ultra vires in the true sense, and the state undoubt- 
 edly has a technical right to complain. The state, however, does not, and 
 will not, complain of such a transaction unless the contract made, or things 
 done under it, injuriously affect or threaten public interests; then the state 
 may interfere by quo wctrranto to prevent or enjoin its consummation, either 
 by ousting the corporation of the power usurped or annulling the charter. As 
 Judge Finch says, People v. Sugar Ref. Co., 121 N. Y. 582, 608: "The state, 
 as prosecutor, must show on the part of the corporation accused some sin 
 j'.jMinst the law of its being which has produced, or tends to produce, injury 
 to the public. The transgression must not be merely formal or incidental, 
 but material and serious; and such as to harm or menace the public wel- 
 fare." See, 1890, People v. North River S. R. Co., 121 N. Y. 582; 1892, State 
 v. Standard Oil Co., 49 Ohio St. 137; 1899, State v. Portland Natural Gas & 
 Oil Co., 153 Ind. 483, 53 N. E. Rep. 1089. 
 
 3. The second principle that contracts in restraint of trade (with certain ex- 
 ceptions) are void and unenforcible has alone no peculiar application to cor- 
 porations, but applies to individuals and partnerships also ; but this principle 
 together with the first one above gives the state a power over corporations in 
 regard to such contracts that it does not have over individuals, viz., that the 
 state can actively and of its own accord take the life of the offending corpo- 
 ration for engaging in S'ich a contract, though no punishment, aside from 
 refusing to enforce the contract, could be meted out to an offending individual 
 or partnership. 
 
 What contracts restraining trade are void is a difficult matter, in the pres- 
 ent state of the law, to determine. It seems to me that Judge Taft, in the 
 Addyston Pipe case, supra, p. 967, has struck the true basis of classification by 
 dividing contracts in restraint of trade and competition into three classes: 
 
 . Those in which the restraining contract is wholly incidental and ancil- 
 lary to another main or principal contract that is lawful ; and, 
 
 6. Those in which the restraining contract is the main or principal contract, 
 to which others are only incidental, ancillary, or preliminary to this pur- 
 pose; and, 
 
 c. Those in which the restraining contract is the only contract made. 
 
 As to class a, it was formerly held, perhaps, that all restraints upon trade 
 were invalid: 1415, Y. B., 2 Hen. V. 5, 26; 1613, Darcy v. Allein, 11 Co. 84; 
 1711, Mitchel v. Reynolds, 1 P. Wms. 181; 1837, Alger v. Thacher, 19 Pick. 
 (Mass.) 51; but the rule has been settled that such restraints as are rea- 
 sonably necessary for the protection of the rights acquired by the main 
 contract are valid: 1621, Broad v. Jollyfe, Cro. Jac. 596; 1711, Mitchel v. 
 Reynolds, 1 P. Wms. 181; 1793, Davis v. Mason, 5 T. R. 118; 1803, Bunn v. 
 Guy, 4 East 190; 1806, Gale v. Reed, 8 East 80; 1811, Pierce v. Fuller, 8 
 Mass. 223; 1813, Perkins v. Lyman, 9 Mass. 522; 1818, Hayward v. Young, 2 
 Chitty407; 1822, Bryson v. Whitehead, 1 Simons & S. 74; 1827, Nobles v. 
 Bates, 7 Cowen 307;" 1831, Homer v. Graves, 7 Bing. 735; 1837, Alger v. 
 Thacher, 19 Pick. (Mass.) 51; 1839, Chappel v. Brockway, 21 Wend. 157; 
 1851, Dunlop v. Gregory, 10 N. Y. 241, 61 Am. Dec. 746: 1856, Cal. Steam Nav. 
 Co. v. Wright, 6 Cal. 259, 65 Am. Dec. 511 ; 1869, Jenkins v. Templs, 39 Ga. 655, 
 99 Am. Dec. 482; 1869, Morse T. D. Co. v. Morse, 103 Mass. 73, 4 Am. Rep. 
 513; 1872, Hoytv. Holly, 39 Conn. 326,12 Am. Rep/390; 1887, Diamond 
 Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464; 1890, Newell v. Meyen- 
 dorff, 9 Mont. 254. 18 Am. St. Rep. 738; 1891, Chapin v. Brown, 83 Iowa 156, 
 32 Am. St. Rep. 297; 1894, Nordenfeldt v. Maxim N. Co., App. Cas. 535; 
 1895, MoCurry v. Gibson, 108 Ala. 451, 54 Am. St. Rep. 177; 1896, Kramer v. 
 Old, 119 N. C. 1, 56 Am. St. Rep. 650; 1898, Lufkin R. Co. v. Fringeli, 57 
 Ohio St. 596, 63 Am. St. Rep. 736; 1898, Stride v. Martin, 77 L. T. (N. S.) 
 600; 1900, Jackson v. Byrnes, 103 Tenn. 698, 54 S. W. Rep 984. 
 
 What is reasonable or unreasonable depends upon the circumstances of each 
 case, and different courts take different views of similar circumstances, but 
 total restraints in both space and time are generally held void ; with improved 
 machinery and communication, what are now reasonable for protection (Dia-
 
 976 U. S. V. ADDYSTON PIPE AND STEEL CO. ET AL. 278 
 
 mond Match Co. v. Roeber, 106 N. Y. 473; Nordenfeldt v. Maxim N. Co., 
 App. Cas. (1894) 535) would formerly have been held to be unreasonable 
 (Mitchel v. Reynolds, 1 P. Wms. 181). 
 
 The subdivisions of class a are given in the report of the Addyston case, 
 supra, p. 970. 
 
 Under class b, when the main contract is to restrain trade, and this does so 
 unreasonably as to affect public interests, such main and ancillary contracts 
 are not enforcible. The following late cases illustrate this : 1877, Arnot v. 
 Coal Co., 68 N. Y. 558; 1888, Santa Clara Lumber Co. v. Hayes, 76 Cal. 387, 
 18 Pac. Rep. 391 ; 1889, Richardson v. Buhl, 77 Mich. 632, 43 N. W. Rep. 1102; 
 1890, People v. Refining Co., 121 N. Y. 582, supra, p. 100; 1890, State v. Neb. 
 Dis. Co., 29 Neb. 700, 46 N. W. Rep. 155; 1890, Pittsburgh Carbon Co. v. Mc- 
 Millin, 119 N. Y. 46, 23 N. E. Rep. 530; 1891, Am. Biscuit Mfg. Co. v. Klotz, 
 44 Fed. Rep. 721 ; 1891, Pacific Factor Co. v. Adler, 90 Cal. 110; 1892, State v. 
 Standard Oil Co., 49 Ohio St. 137; 1895, People v. Milk Exchange, 145 N. Y. 
 267 ; 1895, Distilling and Cattle Feeding Co. v. People, 156 111. 448, infra, p. 978 ; 
 1897, National Harrow Co. v. Hench, 83 Fed. Rep. 36; 1898, United States v. 
 Coal Dealers' Assn., 85 Fed. Rep. 252; 1899, Harding v. Am. Glucose Co., 182 
 111. 551, 55 N. E. Rep. 577. 
 
 Under class c, there being no lawful purpose to forward, no rule to measure 
 the necessity of restriction, but a purpose to avoid competition which the law 
 favors, such contracts should be held void. The following are cases of this 
 kind: 1837, Alger v. Thacher, 19 Pick. 51; 1855, Hilton v. Eckersley, 6 El. & 
 Bl. (88 E. C. L.) 47; 1859, India Bagging Assn. v. Kock, 14 La. Ann. 168; 
 1871, Morris Pain Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; 1875, Craft v. 
 McConoughy, 79 111. 346 ; 1880, Salt Co. v. Guthrie, 35 Ohio St. 666 ; 1889, Leon- 
 ard v. Poole, 114 N. Y. 371 ; 1889, Anderson v. Jett, 89 Ky. 375; 1890, Emery 
 v. Candle Co. ,47 Ohio St. 320; 1890, Urmston v. Whitelegg Bros., 63 L. T. (N. 
 S.)455; 1891, Chapin v. Brown, 83 Iowa 156; 1892, Vulcan Powder Co. v. 
 Hercules Powder Co., 96 Cal. 510; 1892, Oil Co. v. Adoue, 83 Tex. 650; 1892, 
 More v. Bennett, 140 111. 69; 1892, Mogul Steamship Co. v. McGregor, App. 
 Cas. 25; 1893, People v. Sheldon, 139 N. Y. 251 ; 1893, Judd v. Harrington, 
 139 N. Y. 105 ; 1894, Nester v. Brewing Co., 161 Pa. St. 473 ; 1895, Ford v. Milk 
 Association, 155 111. 166; 1895, Bishop v. Preservers' Co., 157 111. 284 ; 1897, Mil- 
 waukee M. & B. Assoc. v. Niezerowski, 95 Wis. 129; 1898, United States v. 
 Trans-Missouri Ft. Assoc., 166 U. S. 290; 1898, United States v. Joint Traffic 
 Association, 171 U. S. 505; 1899, State v. Fireman's F. Ins. Co., 152 Mo. 1, 52 
 S. W. Rep. 595; 1899, Bailey v. Association of Plumbers, 103 Tenn. 99, 52 
 S. W. Rep. 853; 1899, Harding v. Am. Glucose Co., 182 111. 551, 55 N. E. Rep. 
 577; 1900, Gatzow v. Buening, 106 Wis. 1, 81 N. W. Rep. 1003. 
 
 With these cases, however, should be compared the following: Wickens v. 
 Evans, 3 Y. & J. 318; Collins v. Locke, 4 App. Cas. 674; Ontario Salt Co. v. 
 Merchants' S. Co., 18 Grant (U. C.) 540; and Leslie v. Lorrillard, 110 N. Y. 
 519. 
 
 Perhaps there should be added to the above classes another that we may 
 call class d public service companies or occupations in which any restraints 
 that prevent the performance of their whole duty to the public are held to 
 be invalid: 1847, Hooker v. Vandewater, 4 Denio 349; 1848, Stanton v. 
 Allen, 5 Denio 434; 1869, Railroad Co. v. Collins, 40 Ga. 582; 1871, Hazel- 
 hurst v. R. Co., 43 Ga. 13; 1883, West Va. Transp. Co. v. Ohio Riv., etc., Co., 
 22 W. Va. 600; 1888, Gibbs v. Gas Co., 130 U. S. 396; 1889, People v. Chi- 
 cago Gas T. Co., 130 111. 268, infra, p. 1054; 1892, Stockton v. Central R. Co., 
 50 N. J. Eq. 52; 1899, State v. Portland Nat. Gas Co., 153 Ind. 483, 53 N. E. 
 Rep. 1089 ; and see cases cited under section 276. 
 
 Whether contracts in undue restraint of trade are anything more than un- 
 enforcible, that is, illegal as being tortious or wrongful, so as to be the basis 
 of a suit for damages, or a criminal prosecution, in the absence of any statute 
 regulating the matter, is in controversy ; but the weight of authority certainly 
 is that if there is no fraud, coercion, intimidation, or something of the kind 
 practiced upon some one, there is no civil or criminal liability. 
 
 The following cases hold there is a civil or criminal liability: King v.
 
 279 POWER AS TO TRADE COMBINATIONS. 977 
 
 Journeyman Tailors, 8 Mod. 10; 1835, People v. Fisher, 14 Wend. 9, 28 Am. 
 Dec. 501; 1867, Master Stevedore's Assn. v. Wateh, 2 Daly 1 ; 1871, Morris 
 Run Coal Co. v. Barclay, etc., Co., 68 Pa. St. 173; 1888, Crump v. Commw., 
 84 Va. 927, 10 Am. St. Rep. 895; 1893, People v. Sheldon, 139 N. Y. 251, 30 
 Am. St. Rep. 690; 1898, United States v. Trans-Mo. Ft. Assn., 166 U. S. 290; 
 1898, Doremus v. Hennesy, 176 111. 608, 68 Am. St. Rep. 203; 1900, Ertz v. 
 Produce Ex. Co., 82 Minn. 173,81 N. W. Rep. 346. 
 
 The following hoM otherwise: 1842, Commonwealth v. Hunt, 4 Mete. 
 (Mass.) Ill, 38 Am. Dec. 346; 1892, Mogul Steamship Co. v. McGregor, App. 
 Cas. 25; 1895, Macauley v. Tierney, 19 R. I. 255, 61 Am. St. R. 770; 1897, 
 Beechley v. Mulville, 102 Iowa 602, 63 Am. St. Rep. 479; 1897, Allen v. Flood, 
 77 L. T. R. 717; 1899, ^Etna Ins. Co. v. Commw., 21 Ky. L. Rep. 503, 45 L. 
 R. A. 355, 51 S. W. Rep. 624. 
 
 4. Anti-Trust Acts : Alost of the states have enacted anti-trust acts, mak- 
 ing a civil and criminal liability for creating or attempting to create a monop- 
 oly. Some of these, especially the late Michigan, act 255, 1899, Missouri, R. 
 S. 1899, 8978-85, and Texas, ch. 146, 1899, acts, are peculiarly stringent. 
 
 The United States act of 1890 (26 Stat. 209) created seven different crimes 
 relating to interstate, foreign, or territorial trade or commerce, punishable by 
 a penalty not exceeding $5,000, or one year's imprisonment, or both, by pro- 
 viding that every person (including corporations or associations) who shall 
 make (1) a contract in restraint of such trade, or (2) engage in a combination 
 in form of a trust or otherwise, or (3) engage in a conspiracy in restraint of 
 such trade, or (4) monopolize, or (5) attempt to monopolize, or (6) combine, 
 or (7) conspire, to monopolize such trade, shall be guilty of a misdemeanor 
 punishable as stated ; and an injured party may recover damages, and the 
 combination can be enjoined at the suit of United States attorneys. 
 
 This applies not to the making or manufacture of goods (United States v. 
 E. C. Knight Co., 156 U. S. 1), but allows an injunction against a combina- 
 tion of railway employes to obstruct railroad commerce. In re Debs, 158 U. 
 S. 564. It also prevents the formation of pools and traffic combinations 
 among railroads, the direct tendency of which is to limit competition, 
 whether reasonable or unreasonable (United States v. Trans-Mo. Freight 
 Assn., 1896, 166 U. S. 290; United States v. Joint Traffic Association, 1898, 
 171 U. S. 505; also such combinations as directly affect the sale of products 
 that are to cross state lines, 1899, United States v. Addyston Pipe & S. Co., 
 175 U. S. 211, infra, p. 1535; 1899, Lowry v.Tile M. & G. Assn., 98 Fed. Rep. 
 817; 1902, Bement v. National Harrow Co., U. S. , Adv. June 16, 1902, 
 p. 747. 
 
 -4s to constitutionality of the anti-trust acts: That they are constitutional, 
 see, 1900, State v. Schlitz Brewing Co., 104 Tenn. 715, 78 Am. St. Rep. 941; 
 1901, In re Davis, 168 N. Y. 89, 61 N. E. 118. 
 
 That they are unconstitutional, see, 1901, Niagara Fire Ins. Co. v. Cornell 
 (C. C. Neb.), 110 Fed. 816; 1902, Connolly v. Union Sewer Pipe Co., U. S. 
 , 22 Sup. Ct. Rep. 431 ; 1902, Brown v. Jacobs Pharmacy Co., Ga. , 41 
 S. E. 553; 1902, State v. Shippers Compress Co., Tex. Civ. App. , 67 S. 
 W. 1049; 1902, State v. Waters-Pierce Oil Co., Tex. Civ. App. , 67 S. W. 
 1057. 
 
 5. Bibliography: See "The Bibliography of Commercial Trusts, Law Liter- 
 ature of Trust Combinations, Monopolies,"etc.," by Wm. H. Winters, 7 Ry. & 
 Corp. L. J. 236 (1890) ; 2 Beach on Private Corporations, 856, note 1 ; note, 
 23 Abb. N. C. 317. See also, especially, Cook Corporations, 503a-603d; 
 Elliott Corporations, 172-179. 
 
 Sec. 279. (c) Unincorporated trusts. 
 
 See People v. N. R. Sugar Ref. Co., 121 N. Y. 582, 18 Am. 
 St. R. 843, supra, p. 100. 
 
 Note. See note to preceding case, and also note, supra, pp. 109, 963, 966. 
 62 WIL. CASES.
 
 978 DISTILLING AND CATTLE FEEDING CO. V. PEOPLE. 280 
 Sec. 280. (d) Incorporated trusts. 
 
 DISTILLING AND CATTLE FEEDING COMPANY v. PEOPLE. 1 
 
 1895. IN THE SUPREME COURT OF ILLINOIS. 156 111. Rep. 448- 
 492, 47 Am. St. R. 200. 
 
 \_Quo tvarranto against the distilling company. Defendant filed a 
 number of pleas, to all of which demurrers were sustained, and the 
 defendant electing to abide by its pleas judgment of ouster was 
 rendered against it, from which this appeal is taken. The people al- 
 leged that in 1887, five corporations of Illinois, one of Missouri, one 
 of Ohio, with a partnership and an individual of that state, all en- 
 gaged in distilling, executed an agreement "to form a trust to be 
 known as the Distillers' and Cattle Feeders' Trust, for the purpose of 
 securing intelligent co-operation in the business of distilling spirits, 
 etc.," by creating nine trustees (named for the first year, to be elected 
 annually, by the certificate holders), who were required to prepare 
 trust certificates of $100 each, to be issued to shareholders in the 
 various corporations in lieu of all their shares of stock which (except 
 enough to qualify a minority of the directors in each company) was to 
 be assigned absolutely to the trustees (but without power of sale), 
 thereby enabling them to exercise supervision over the various cor- 
 porations entering into the trust, with power to elect themselves di- 
 rectors of such companies if found desirable ; also with power to 
 purchase stock in other distilling companies and issue trust certificates 
 therefor; to receive and distribute all dividends declared, in propor- 
 tion to trust certificates held ; that each corporation conveyed its real 
 estate to some person to be held in trust for its shareholders, which 
 trustee leased the property back to the corporation for twenty-five 
 years, the period for which the trust was to exist ; that within a year 
 after this agreement was entered into, eighty-one distilleries (in- 
 cluding twenty-two in Illinois), had been drawn into the trust, 
 and the trustees held, owned and controlled the capital stock, 
 business and franchises of all of such corporations; that in 1890 
 it was determined to change the organization from a trust to a 
 corporation, and the trustees were directed to incorporate the Distill- 
 ing and Cattle Feeding Company in Illinois, with $35,000,000 capital 
 stock, the shares to be of $100 each, and to be exchanged share for share 
 for trust certificates, and the latter canceled; that the trustees were 
 also directed to transfer all their rights as trustees to the new corpora- 
 tion, and also cause the various separate companies (of each of which 
 the trustees formed a majority of the directors) to convey all their 
 property of every kind to the new corporation : that all of this was 
 done by organizing the company under the Illinois law, "to carry on 
 a general business of distilling, redistilling and rectifying high wines, 
 alcohol, spirits, gins and whiskies of every kind and description, and 
 deal in the same in the state of Illinois and elsewhere, and owning 
 
 'Statement of facts much abridged; only part of opinion given.
 
 2 80 POWER AS TO TRADE COMBINATIONS. 979 
 
 the property necessary for that purpose ;" also to deal in cattle, to 
 malt and deal in malt, and "do any other business incident to the 
 main purpose of this corporation," the principal office to be located 
 at Peoria ; that the nine trustees subscribed for all the stock, elected 
 themselves directors and then caused the stock to be exchanged and 
 conveyances to be made as directed and thereby continued to retain 
 control of said corporations; that other distilleries had been acquired, 
 many of them dismantled and discontinued so that in 1892 it owned 
 and controlled over 95 per cent, of the distilling business of the United 
 States, and by a system of rebates of 7 cents per gallon, payable at 
 the end of six months to every purchaser who had in the meantime 
 purchased of no other seller, and otherwise, had destroyed all compe- 
 tition in its products; and that all the foregoing had been done for the 
 purpose, with the intent, and with the effect of raising prices, prevent- 
 ing competition and creating a monopoly in the production and sale 
 of its products. 
 
 The pleas admitted substantially all the allegations relating to the 
 formation of the trust and the corporation, the dismantling of distiller^ 
 ies and the allowance of rebates, except such as charged a scheme for 
 the purpose or with the effect of preventing competition and creating 
 a monopoly, all of which were denied in detail, as was also denied all 
 allegations of the continued existence and control of the former cor- 
 porations by the defendant. On the other hand the pleas alleged that 
 the defendant used its franchises and powers by virtue of its charter 
 alone, and that after its incorporation it purchased the various plants 
 for a valuable consideration for the purpose of utilizing them in its 
 authorized business ; that each corporation had by the unanimous 
 direction of its shareholders sold all of its property of every kind to 
 the defendant, and had directed that all of its stock be canceled by its 
 directors, and the charter be surrendered to the state, all of which was 
 alleged to have been done ; that at the time when the purchases were 
 made the producing capacity of all plants was at least four times the 
 demand, and forty-eight of the plants had long been idle, and por- 
 tions of their machinery useless, but that such as could be was used 
 in fitting up such distilleries as were necessary ; and that the sole pur- 
 pose of the defendant was to meet the demand of the public and secure 
 only fair remuneration, and not to enhance prices, nor create a mo- 
 nopoly, nor prevent other parties from engaging in the business, and 
 that in fact it never had produced more than 65 per cent, of the de- 
 mand, and there were then eighteen distilleries capable of producing 
 two-thirds of the entire demand, with which the defendant was then 
 in active competition.] 
 
 MR. JUSTICE BAILEY [after holding the "trust" preceding the corpo- 
 ration had been illegal upon the authority of State v. Neb. Dist. Co., 
 29 Neb. 70x5; State v. Standard Oil Co., 49 Ohio St. 137; People v. 
 N. R. S. R. Co., 54 Hun 354, 121 N. Y. 578, supra, p. 100; Rich- 
 ardson v. Buhl, 77 Mich. 632; People v. Chicago Gas Trust Co., 
 130 111. 268, infra, p. 1054] proceeds: * * * 
 
 But the defendant contends that, while this may all be so, the change
 
 980 DISTILLING AND CATTLE FEEDING CO. V. PEOPLE. 280 
 
 in organization from an unincorporated association to a corporation, and 
 the change in the mode of holding the distillery properties of the va- 
 rious corporations formerly belonging to the trust, by surrendering the 
 stock of the corporations, by means of which the control of those 
 properties was formerly maintained, and having the properties them- 
 selves transferred and conveyed directly to the defendant corporation, 
 have purged the combination of its illegality. It must be admitted 
 that these changes, so far as they have any effect upon the rights or 
 interests of the former stockholders in those corporations or of the 
 public, are formal rather than substantial. The same interests are 
 controlled in substantially the same way and by the same agencies as 
 before. The nine trustees of the trust who, as the holders of all the cap- 
 ital stock of the corporations and as a majority of the directors of 
 each, controlled such corporate property, became the subscribers for 
 all the stock of the new corporation, and its board of directors. The 
 conveyance and transfer of the properties of the constituent companies 
 to the new corporation was merely a transfer by the trustees to them- 
 selves, though in a slightly different capacity, and the former stock- 
 holders in the constituent companies simply exchanged their trust 
 certificates, share for share, for stock in the new corporation. That 
 corporation thus succeeds to the trust, and its operations are to be car- 
 ried on in the same way, for the same purposes and by the same agen- 
 cies as before. The trust, then, being repugnant to public policy and 
 illegal, it is impossible to see why the same is not true of the corpo- 
 ration which succeeds to it and takes its place. The control exercised 
 over the distillery business of the country over production and prices 
 and the virtual monopoly formerly held by the trust, are in no de- 
 gree changed or relaxed, but the methods and purposes of the trust 
 are perpetuated and carried out with the same persistence and vigor 
 as before the organization of the corporation. There is no magic in a 
 corporate organization which can purge the trust scheme of its illegal- 
 ity, and it remains as essentially opposed to the principles of sound 
 public policy as when the trust was in existence. It was illegal be- 
 fore and is illegal still, and for the same reasons. 
 
 But it is urged that the defendant, by its charter, is authorized to 
 purchase and own distillery property and that there is no limit placed 
 upon the amount of property which it may thus acquire. By its cer- 
 tificate of organization it is authorized to engage in a general distill- 
 ery business in Illinois and elsewhere, and to own the property neces- 
 sary for that purpose. It should be remembered that grants of power 
 in corporate charters are to be construed strictly, and that what is not 
 clearly given is, by implication, denied. The defendant is author- 
 ized to own such property as is necessary for carrying on its distillery 
 business, and no more. Its power to acquire and hold property is 
 limited to that purpose, and it has no power, by its charter, to enter 
 upon a scheme of getting into its hands and under its control all, or 
 substantially all. the distillery plants and the distillery business of the 
 country, for the purpose of controlling production and prices, of 
 crushing out competition, and of establishing a virtual monopoly in that
 
 28 1 POWER AS TO TRADE COMBINATIONS. 981 
 
 business. Such purposes are foreign to the powers granted by the 
 charter. Acquisitions of property to such extent and for such pur- 
 pose do not come within the authority to own the property necessary 
 for the purpose of carrying on a general distillery business. In ac- 
 quiring distillery properties in the manner and for the purposes shown 
 by the information, the defendant has not only misused and abused 
 the powers granted by its charter, but has usurped and exercised pow- 
 ers not conferred by, but which are wholly foreign to, that instalment. 
 It has thus rendered itself liable to prosecution by the state by quo 
 ivarranto, and we are of the opinion that, upon the facts shown by 
 the information, the judgment of ouster is clearly warranted. It 
 will accordingly be affirmed. 
 Judgment affirmed. 
 
 Note, See next case, and note to People v. N. R. Sugar Ref. Co., supra, 
 p. 109 ; also, note to section 278, supra. 
 
 Sec. 281. Same. 
 
 TRENTON POTTERIES COMPANY v. OLIPHANT ET AL. 1 
 
 1899. IN THE NEW JERSEY COURT OF ERRORS AND APPEALS. 
 58 N. J. Eq. 507, 78 Am. St. R. 612, 43 Atl. Rep. 723-730, 
 46 L. R. A. 255. 
 
 [Bill by the Potteries Company, a New Jersey corporation, against 
 the defendants, the owners of the Delaware Potteries, to enjoin them 
 from engaging directly or indirectly in the business of manufacturing 
 pottery within any state of the United States (except Arizona and 
 Nevada) for fifty years. In 1890, there were nine pottery factories 
 engaged in manufacturing of sanitary pottery in the United States, 
 seven in Trenton, N. J., one in Baltimore, Md., and one at Tiffin, O. 
 The eight eastern potteries had formed the American Sanitaiy Pot- 
 teries Association, for the purpose of securing uniform prices of their 
 wares, to be fixed by the vote of a majority (each having one vote), 
 and by which all were bound to sell. About this time a New York 
 promoter "undertook" to organize them into a corporation to control 
 the manufacture of sanitary pottery. He sought and obtained options 
 from five of the Trenton potteries, including the defendant, whereby 
 each of them agreed to sell all of its property and processes of every 
 kind to the promoter or his assignee, and covenanted that it would 
 not, for the period of fifty years, either directly or indirectly, engage 
 in the pottery business, within any state of the United States (except 
 Arizona and Nevada). These five options were those of the potteries 
 manufacturing about seventy-five per cent, of the product, and by 
 their vote they were able to control the fixing of prices by the associa- 
 tion. After these options were obtained, they were assigned by the 
 promoter to the Trenton Potteries Company, organized in New Jer- 
 sey with a capital of $1,750,000 common, and $1,250,000, preferred 
 
 1 Statement greatly abridged, and only that part of the opinion as to the 
 validity of the corporate existence and ownership is given.
 
 982 TRENTON POTTERIES CO. V. OLIPHANT ET AL. 28 1 
 
 stock, "to manufacture, sell, and trade in pottery and earthenware, 
 and other like products, and in all materials commonly or conven- 
 iently used, manufactured, bought and sold in connection therewith, 
 or necessary, or convenient in and about the transaction of the said 
 business." This company was formed after the options were secured, 
 and in pursuance thereof the property of these potteries was conveyed 
 to it, together with the covenants not to engage in business, and pay- 
 ment therefor was made partly in cash and partly in stock in the new 
 company. After coming into possession of the five potteries, this 
 new company continued to operate them as separate concerns, and 
 kept its right to five votes in the American Sanitary Potteries Asso- 
 ciation, thereby controlling it for several years, although at the time 
 this suit was brought, the association had broken up. 
 
 The defendants herein the partnership owning the Delaware pot- 
 teries afterward organized a corporation to be located in New Jersey, 
 and to engage in the manufacture and sale of sanitary pottery, in ac- 
 tive competition with the complainants. The defense made was that 
 the contract "not to engage in business was in unlawful restraint of 
 trade, that the complainant company was formed for the purpose of 
 obtaining a monopoly of the manufacture and sale of sanitary ware, 
 a necessity of life, and that the contracts not to engage in business 
 were in aid of this unlawful purpose, and therefore void." Vice- 
 Chancellor Grey so held, and dismissed the bill (39 Atl. Rep. 923). 
 From this decision an appeal was taken.] 
 
 MAGIE, C. J., * * * [after holding that, though a contract in 
 general restraint of trade was void, the words "within any state of the 
 United States except Arizona and Nevada," were a short way of 
 enumerating the states, and the contract was valid in those states 
 where reasonably necessary to protect the purchaser, though it might 
 be void elsewhere ; that the Sanitary Potteries Association, with its 
 power of fixing prices was unlawful as against public policy] pro- 
 ceeds: * * * 
 
 It is further urged that the simultaneous contracts procured by ap- 
 pellant create or tend to create a monopoly, because they stipulate for 
 the removal of many competitors in the business of manufacturing 
 sanitary pottery ware. The owners of five of the eight potteries in 
 Trenton manufacturing that kind of ware (and there were but few, if 
 more than one, elsewhere) thereby agreed not to engage in that busi- 
 ness for a long period of time, and over a great extent of country. 
 The engagement of respondents in that respect has been found not to 
 be an improper restraint of trade, nor inimical to public policy on 
 that ground, but a contract partially enforceable upon respondents, if 
 not otherwise objectionable. The engagements of the other vendors 
 who sold their properties and business to appellant are similar in 
 terms to that entered into by respondents, and furnish a reasonable 
 protection to appellant of the business and good will purchased by it 
 of each of them. Each sale and each incidental contract against 
 competition are, for reason before given, unobjectionable. Are they 
 rendered objectionable by the fact that, being simultaneously made,
 
 28 1 POWER AS TO TRADE COMBINATIONS. 983 
 
 they excluded from engaging in the business of manufacturing sani- 
 tary pottery ware so large a proportion of those previously engaged 
 in that manufacture ? It is to be observed that the contracts of re- 
 spondents and the other vendors, to appellant, restricted them from 
 engaging in the business of manufacturing, not sanitary pottery wart- 
 alone, but all pottery ware. The proofs show that a large number 
 of persons are engaged in manufacturing pottery ware in various 
 parts of the country, and that the contracts in question would exclude 
 from competition a very small proportion of them. But as the proofs 
 also show that the main purpose of appellant was to engage in the 
 manufacture of sanitary pottery ware, I have stated the proposition in 
 a more restricted form. Whether sanitary pottery ware has become 
 a necessity of life, is open to question. It is certain that many per- 
 sons manage to exist without using it. But if its use is of importance 
 to health and comfort, and a considerable and increasing number of 
 persons desire to acquire, and use it, the public may have such an 
 interest in its manufacture and sale that public policy will justify judi- 
 cial interference and refusal to enforce illegal combinations to en- 
 hance its price. The elimination of competition may produce that 
 result. The contracts in question were not intended to withdraw, 
 and do not appear to have withdrawn, from work a single workman 
 in that industry. They restrain a comparatively small number of 
 capitalists, who had previously employed their capital in such manu- 
 facture, from continuing so to do. The entire capital of the country 
 except theirs is free to be employed in the manufacture. 
 
 There seems no ground for the claim that we should refuse to en- 
 force respondents' contracts by injunction, when the proofs furnish 
 no reason for the belief that the public will suffer if they are held to 
 their bargains. The contemporaneous contracts were all made as in- 
 cidental to the sale and purchase of competing concerns engaged in 
 the manufacture of sanitary pottery ^vare. They were, as we have 
 seen, reasonably appropriate to the protection of the purchaser in each 
 case. While contracts to restrain or limit competition in the produc- 
 tion of that ware may be repugnant to the public interest, such a re- 
 straint or limit may result from contracts which the courts are bound 
 to enforce. A person engaged in any manufacture or trade, having 
 the right to acquire and possess property, and to do with it what he 
 chooses, may lawfully buy the business of any of his competitors. 
 His first purchase would at once diminish competition. If he con- 
 tinued to purchase, each succeeding transaction would remove another 
 competitor. If his capital was large enough to enable him to buy the 
 business of all competitors, the last purchase would completely ex- 
 clude competition, at least for a time. But in the absence of legisla- 
 tive restrictions, if such could be imposed, upon the acquisition of 
 such property, and its use when so acquired, courts could impose no 
 limitation. They would be obliged to enforce such contracts, not- 
 withstanding the effect was to diminish, or even to exclude, competition. 
 But appellant is a corporation, and not an individual. Corpora- 
 tions, however, may lawfully do any acts within the corporate powers
 
 984 CLEAR WATER V. MEREDITH ET AL. 282 
 
 conferred on them by legislative grant. Under our liberal corpora- 
 tion laws, corporate authority may be acquired by aggregation of in- 
 dividuals, organized as prescribed, to engage in and carry on almost 
 every conceivable manufacture or trade. Such corporations are em- 
 powered to purchase, hold, and use property appropriate to their busi- 
 ness. They may also purchase and hold the stock of other corpora- 
 tions. Under such powers it is obvious that a corporation may 
 purchase the plant and business of competing individuals and con- 
 cerns. The legislature might have withheld svich powers, or imposed 
 limitations upon their use. In the absence of prohibition or'limita- 
 tions on their powers in this respect, it is impossible for the courts to 
 pronounce acts done under legislative grant to be inimical to public 
 policy. The grant of the legislature authorizing and permitting such 
 acts must fix for the courts the character and limit of public policy in 
 that regard. It follows that a corporation empowered to carry on a 
 particular business may lawfully purchase the plant and business of 
 competitors, although such purchases may diminish or for a time, at 
 least, destroy competition. Contracts for such purchases can not be 
 refused enforcement. Since contracts by individuals, and by corpora- 
 tions having legislative authority, for the purchase of competing plants 
 and business, may be made, and are enforcible, although, as a result 
 thereof, competition is diminished or temporarily destroyed, it further 
 follows that contracts reasonably required to make such purchases 
 effective by protecting the purchaser in the use and enjoyment of the 
 thing purchased can not be declared by the courts to be repugnant to 
 public policy. The interference with competition resulting from such 
 purchases under legislative permission being found not to invalidate 
 contracts for such purchases, the like interference by contracts reason- 
 ably required for the protection of the purchaser can not be held to 
 invalidate them. 
 
 Decree modified. LippincotJ and Hendrickson,JJ., dissent. 
 
 Note. See, preceding case, and cases cited in note to People v. N. R. Sugar 
 Ref. Co., supra, p. 109. 
 
 Sec. 282. (/) Consolidation. 
 
 (a) Power to consolidate. 
 
 CLEARWATER v. MEREDITH ET Ai. 1 
 
 1863. IN THE UNITED STATES SUPREME COURT, i Wallace's 
 (68 U. S.) Rep. 25-43. 
 
 [Clearwater, in 1853, sold a tract of land to Meredith and others 
 for $10,000, taking in pay therefor 200 shares in the S. L. R. Co., 
 which Meredith and his associates guaranteed would be worth $50 
 per share (z. e., the par value), in Cincinnati, O., on Oct. i, 1855. 
 In 1854, the S. L. R. Co., by authority of law, and with the consent 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 282 POWER AS TO CONSOLIDATION. 985 
 
 of its stockholders and directors, was consolidated with another rail- 
 road company. Oct. i, 1855, having arrived and passed, and Clear- 
 water considering his stock was not worth $50 per share, sued on the 
 guaranty. The defendants pleaded that the consolidation of the 
 companies necessarily destroyed and rendered worthless the stock, 
 that plaintiff consented to this and so could not now complain. Judg- 
 ment below for defendants.] 
 
 MR. JUSTICE DAVIS. * * * If Clearwater was a -consenting 
 party to a proceeding which, of itself, put it out of the power of the 
 defendants to perform their contract, he can not recover, for "prom- 
 isors will be discharged from all liability when the non-performance 
 of their obligation is caused by the act or the fault of the other con- 
 tracting party." 
 
 The Cincinnati, Cambridge and Chicago Short Line Railway Com- 
 pany, whose stock was guaranteed, was, as stated in the pleadings, 
 organized under a general act of the state of Indiana, providing for 
 the incorporation of railroad companies. This act was passed May 
 ii, 1852, and contained no provision permitting railroad corporations 
 to consolidate their stock. It can readily be seen that the interests of 
 the public, as well as the perfection of the railway system, called for 
 the exercise of a power by which different lines of road could be 
 united. Accordingly on the 23d of February, 1853, the general as- 
 sembly of Indiana passed an act allowing any railway company that 
 had been organized to intersect and unite their road with any other 
 road constructed or in progress of construction, and to merge and con- 
 solidate their stock, and on the 4th of March, 1853, the privileges of 
 the act were extended to railroad companies that should afterwards 
 be organized. 
 
 The power of the legislature to confer such authority can not be 
 questioned, and without the authority railroad corporations organ- 
 ized separately cotild not merge and consolidate their interests. But 
 in conferring the authority, the legislature never intended to compel 
 a dissenting stockholder to transfer his interest because a majority 
 of the stockholders consented to the consolidation. Even if the legis- 
 lature had manifested an obvious purpose to do so, the act wotild 
 have been illegal, for it would have impaired the obligation of a 
 contract. There was no reservation of power in the act under which 
 the Cincinnati, Cambridge and Chicago Short Line Railway was or- 
 ganized, which gave authority to make material changes in the pur- 
 poses for which the corporation was created, and without such a res- 
 ervation in no event could a dissenting stockholder be bound. 
 
 When any person takes stock in a railroad corporation, he has 
 entered into a contract with the company that his interests shall be 
 subject to the direction and control of the proper authorities of the 
 corporation to accomplish the object for which the company was 
 organized. He does not agree that the improvement to which he 
 subscribed should be changed in its purposes and character, at the will 
 and pleasure of a majority of the stockholders, so that new responsi- 
 bilities, and it may be new hazards, are added to the original under-
 
 986 CLEARWATER V. MEREDITH ET AL. 282 
 
 ^ 
 
 taking. He may be very willing to embark in one enterprise, and 
 unwilling to engage in another; to assist in building a short line rail- 
 way, and averse to risking his money in one having a longer line of 
 transit. 
 
 But it is not every unimportant change which would work a disso- 
 lution of the contract. It must be such a change that a new and dif- 
 ferent business is superadded to the original undertaking. The act of 
 the legislature of Indiana allowing railroad corporations to merge 
 and consolidate their stock, was an enabling act was permissive, 
 not mandatory. It simply gave the consent of the legislature to 
 whatever could lawfully be done and which without that consent 
 could not be done at all. By virtue of this act the consolidations in 
 the plea stated were made. Clearwater, before the consolidation, 
 was a stockholder in one corporation created for a given purpose. 
 After it he was a stockholder in another and different corporation, 
 with other privileges, powers, franchises and stockholders. The 
 effect of the consolidation "-was a dissolution of the three corpora- 
 tions, and at the same instant the creation of a netv corporation -with 
 property, liabilities and stockholders, derived from those passing out 
 of existence." McMahon v. Morrison. 1 And the act of consolida- 
 tion was not void because the state assented to it, but a non-consent- 
 ing stockholder was discharged. Clearwater could have prevented 
 this consolidation had he chosen to do so; instead of that he gave his 
 assent to it, and merged his own stock in the new adventure. If a 
 majority of the stockholders of the corporation of which he was a 
 member had undertaken to transfer his interest against his wish, they 
 would have been enjoined. There was no power to force him to join 
 the new corporation, and to receive stock in it on the surrender of 
 his stock in the old company. By his own act he has destroyed the 
 stock to which the guaranty attached, and made it impossible for the 
 defendants to perform their agreement. After the act of consolida- 
 tion the stock could not have any separate, distinct market value. 
 There was, in fact, no longer any stock of the Cincinnati, Cambridge 
 and Chicago Short Line Railway. 
 
 Meredith and his co-defendants undertook that the stock should be 
 at par in Cincinnati, if it maintained the same separate and independ- 
 ent existence that it had when they gave their guaranty. Their un- 
 dertaking did not extend to another stock, created afterwards, with 
 which they had no concern and which might be better or worse than 
 the one guaranteed. It is not material whether the new stock was 
 worth more or less than the old. It is sufficient that it is another stock, 
 and represented other interests. * * * 
 
 Affirmed. 
 
 1 16 Ind. 172.
 
 283 POWER AS TO CONSOLIDATION. 987 
 
 Sec. 283. Same. 
 
 IN THE MATTER OF THE PROSPECT PARK & C. I. RAILROAD CO.' 
 
 1876. IN THE COURT OF APPEALS OF NEW YORK. 67 N. Y. Rep. 
 
 37 I ~379- 
 
 [Appeal from order of lower court appointing commissioners to ap- 
 praise land taken by the railroad company under the railroad act. 
 Objection was made to the application upon the ground, inter alia, 
 that the company had been formed by the consolidation of two 
 companies, one of which had the power "to consolidate with any 
 other company and form a new company," but the company consoli- 
 dated with had no charter authority to so consolidate.] 
 
 FOLGER, J. * * * The act of 1874 (Laws of 1874, chap. 448, 
 pp. 591-592, 3) gave power to one of the corporations, which now 
 together form the corporation which is the petitioner in this case, to 
 consolidate with any other like corporation. The point of the appel- 
 lants, that no power to consolidate is given to the other of those cor- 
 porations, is without effect. Power is given to one corporation by 
 statute to form a consolidation with any other. It can not form a con- 
 solidation unless it finds another with which to unite and which is 
 capable of union with it; hence, whatever other company it selects 
 for a union, and finds willing to join it, that other company, though 
 not named in the statute, gets power from the statute to unite with 
 that company which the statute names. 
 
 Affirmed. 
 
 Note. See next case. 
 
 Sec. 284. Same. 
 
 GAINES, C. J., IN MORRILL v. SMITH COUNTY. 
 1896. IN THE SUPREME COURT OF TEXAS. 89 Texas 529, on 552. 
 
 It has been held that the power given to one railroad company to 
 consolidate with any other like company, without naming any, author- 
 izes any other company to consolidate with it. (Matter of P. P. & 
 C. I. R. Co., 67 N. Y. 371.) But a contrary rule is recognized in 
 this state. Railway v. Rushing, 69 Texas 306. See, also, Railway 
 v. Morris, 67 Texas 692. It does not follow that because the char- 
 ter of a railway company empowers it in general language "to con- 
 solidate with any other railroad company," these words should be 
 construed as conferring the power upon any other company to consol- 
 idate with it. They reasonably admit of the construction that the 
 company named is empowered only to unite with any other company 
 which has a like power, and it would seem that, under the general rule 
 previously announced, the construction least favorable to the corpora- 
 
 1 Statement abridged, and only the part of the opinion relating to the single 
 point given.
 
 988 QU1NCY RAILROAD BRIDGE CO. V. ADAMS COUNTY. 285 
 
 tion should control ; at all events, when we attempt to adopt the con- 
 struction insisted upon on behalf of Smith county, in respect to the 
 grant in the charter of the Houston'Tap and Biazoria Railroad Com- 
 pany, we encounter a grave constitutional difficulty. The contention 
 is that the special charter of the company not only confers power upon 
 the company to consolidate with any other railroad company, but also 
 upon any other such company to consolidate with it. The title of the act 
 is clearly sufficient to embrace the grant of any powers to the com- 
 pany incorporated which were appropriate to its purpose. But is 
 there anything in the title that indicated that it was one of the objects 
 of the act to confer power upon all the railroads of the state to consol- 
 idate with that company? That involved a distinct grant and enlarge- 
 ment of power to every other railroad company in the state, and it 
 seems to us that, if such was the intent of the legislature, it comes 
 within the scope of the very evil which was intended to be suppressed 
 by that section of the constitution which required that the object of 
 every 'act be expressed in its title. Giddings v. San Antonio, 47 Texas 
 548; Peck v. San Antonio, 51 Texas 490. 
 
 Note. See preceding case. 
 
 Sec. 285. (b) Interstate consolidation. 
 
 QUINCY RAILROAD BRIDGE COMPANY v. ADAMS COUNTY. 1 
 
 1878. IN THE SUPREME COURT OF ILLINOIS. 88 111. Rep. 
 
 615-622. 
 
 [Action by the county to collect a tax upon the capital stock of the 
 bridge company. The first section of the tax law provided for a tax 
 upon "the capital stock of the companies and associations incorpo- 
 rated under the laws of this state." In 1865, the Railroad Bridge 
 Company was incorporated in Illinois, and about this time the 
 Quincy Bridge Company was incorporated in Missouri, the purpose 
 of both companies being to build a bridge across the Mississippi river 
 at Quincy; in order to do this successfully it became necessary to 
 consolidate, and this was done by agreement duly filed in the office of 
 the secretary of state in each state, and the consolidation was legalized 
 by the respective legislatures, under the name of the Quincy Railroad 
 Bridge Company. The corporation claimed it was not "a company 
 incorporated under the laws of Illinois." A demurrer to this claim 
 was sustained, and judgment rendered for the county. The company 
 appealed.] 
 
 BREESE, J. * * * But it is said by appellants, this corpora- 
 tion, although it derived some of its powers and in part its corporate 
 existence from this state, derived an equal part from the sovereign 
 
 1 Statement abridged, and only part of opinion given.
 
 286 POWER AS TO CONSOLIDATION. 989 
 
 state of Missouri, and therefore they are not a corporation created 
 under the laws of either state. To this it is answered, and we think 
 satisfactorily, that the legislatures of this state and of Missouri can 
 not act jointly, nor can any legislation of the last named state have 
 the least effect in creating a corporation in this state. Hence, the 
 corporate existence of appellants, considered as a corporation of this 
 state, must spring from the legislation of this state, which, by its own 
 vigor, performs the act. The states of Illinois and Missouri have no 
 power to unite in passing any legislative act. It is impossible, in the 
 very nature of their organizations, that they can do so. They can not 
 so fuse themselves into a single sovereignty, and as such create a body 
 politic which shall be a corporation of the two states, without being 
 a corporation of each state or of either state. As argued by appellee, 
 the only possible status of a company acting under charters from two 
 states is, that it is an association incorporated in and by each of the 
 states, and when acting as a corporation in either of the states it acts 
 under the authority of the charter of the state in which it is then act- 
 ing, and that only, the legislation of the other state having no opera- 
 tion beyond its territorial limits. We do not, and can not, understand 
 that appellants derive any of its corporate powers from the legislature 
 of the state of Missouri, but wholly and entirely derived from the 
 general assembly of this state. Consequently they are embraced in 
 the first section of the revenue act, above cited. * * * 
 Affirmed. 
 
 Note: Compare, 1892, People v. N. Y. C. & S. L. R. Co., 129 N. Y. 474 ; 1898, 
 State y. Lesueur, 145 Mo. 322; 1892, Ashley v. Ryan, 49 Ohio St. 504; and 
 cases in note at end of section 288, 4a and 5a. 
 
 Sec. 286. (c) Consolidation or merger. 
 
 KEOKUK AND WESTERN RAILROAD COMPANY v. MISSOURI. 1 
 
 1894. IN THE SUPREME COURT OF THE UNITED STATES. 152 
 United States Rep. 301-317. 
 
 [Action in Missouri state court for collection of taxes. Defendant, 
 a consolidated company, relied on a charter exemption from taxation, 
 appearing in the charter of one of the original Missouri companies 
 out of which the consolidated company had been formed. Before the 
 consolidation, the new Missouri constitution had expressly provided 
 that such property should not be exempt. The tax was levied after 
 the consolidation, and the state court gave judgment for the tax. This 
 was affirmed by the supreme court of the state, and the defendant sued 
 out this writ of error.] 
 
 MR. JUSTICE BROWN. * * * The question in this case is 
 whether the defendant, the Keokuk and Western Railroad Company, 
 was entitled to the exemption of its property from taxation contained 
 
 1 Statement abridged and part of opinion omitted.
 
 990 KEOKUK AND WESTERN R. CO. V. MISSOURI. 286 
 
 in the original charter to the Alexandria and Bloomfield Railroad 
 Company, of which road it is the successor in interest. 
 
 (i) It will be observed that the constitutional provision upon which 
 the state relies for the enforcement of this tax for the year 1886 was 
 adopted in 1865, before the consolidation of the Alexandria and 
 Bloomfieid Company, under its changed name of the Alexandria and 
 Nebraska City Railroad Company, with the Iowa Southern Company, 
 which took place in 1870, and before the completion of the road in 
 1872. That the exemption from taxation contained in the original 
 charter to the Alexandria and Bloomfield Company would have con- 
 tinued the full twenty years from the completion of the road in 1872, 
 had such consolidation not taken place, is, for the purpose of this 
 case, conceded. Indeed, it was so held by the supreme court of the 
 state, in State v. Macon County, 41 Mo. 453. The court, construing 
 sections 3 and 14 of article 1 1 of the constitution, held the provisions 
 of section 14 to be a limitation upon the future power of the general 
 assembly, and not intended to retroact so as to have any controlling 
 application to laws in existence when the constitution was adopted. 
 See also, State v. Cape Girardeau Railway, 48 Mo. 468 ; State v. 
 Coffee, 59 Mo. 59; Atlantic, etc., Railroad v. St. Louis, 66 Mo. 228. 
 
 The question then arises whether the Alexandria and Bloomfield 
 Railroad Company, whose charter contained the exemption, is still in 
 existence, or was dissolved by the consolidation, and a new corpora- 
 tion was thereby called into being, which held its property subject to 
 the constitutional provisions of 1865, denying the power of the gen- 
 eral assembly to exempt property from taxation. In the numerous 
 cases which have arisen in this court as to the effect of a consolida- 
 tion upon the existence and status of the constituent corporations, it 
 has been held that the question of the dissolution of such corpora- 
 tions depended upon the language of the statute under which the con- 
 solidation took place the presumption in each case being that each 
 of the two lines of road will be held respectively to the privileges and 
 burdens originally attaching thereto. Tomlinson v. Branch, 15 Wall. 
 460. If, upon the one hand, the identity of the prior corporations is 
 preserved, an exemption from taxation which one of them possessed, 
 falls to that portion of the new corporation to which, under its 
 former name, it had been attached. If, upon the other hand, the con- 
 solidation worked a dissolution of the prior corporations, their former 
 privileges and franchises also ceased to exist. Thus, in the earliest 
 of these cases, Philadelphia, etc., R. Co. v. Maryland, 10 How. 376, 
 it was held that the Baltimore and Port Deposit Railroad Company, 
 whose charter contained no exemption from taxation, did not acquire 
 such exemption by consolidation with the Delaware and Maryland 
 Railroad Company, whose charter exempted the road from taxation, 
 "except upon that portion of the permanent and fixed works which 
 might be in the state of Maryland." A general rule was laid down 
 in this case to which this court has steadilv adhered, that the taxing 
 power of the state should never be presumed to be relinquished, un- 
 less the intention to do so be declared in clear and unambiguous terms
 
 286 POWER AS TO CONSOLIDATION. 991 
 
 This case was subsequently reaffirmed in the Delaware Railroad Tax, 
 18 Wall. 206. 
 
 In Tomlinson v. Branch, 15 Wall. 460, it was held that when a 
 railroad company to which, by its charter, an exemption from taxa- 
 tion was granted, for a limited period, was by act of the legisla- 
 ture "merged" in another company, which thereby became invested 
 with all its rights, property and privileges, the exemption applied to 
 the property with its limitation of time, and, although the company 
 in which it was merged had been granted a perpetual exemption from 
 taxation in its charter, this perpetual exemption would not be extended 
 to property so acquired, without express words, or necessaiy intend- 
 ment to that effect. In Central Railroad v. Georgia, 92 U. S. 665, 
 the act of the legislature authorized the Central Railroad and the 
 Macon Railroad "to unite and consolidate" their "stocks" and all 
 their "rights, privileges, immunities, property and franchises" under 
 the name and charter of the Central Railroad in such manner that 
 each owner of shares of stock of the Macon road should be entitled to 
 receive an equal number of shares of the consolidated companies. It 
 was held this consolidation was not a surrender of the existing charters 
 of the two companies, and did not work the extinction of the Central 
 Company nor the creation of a new company, and also that the con- 
 solidated company continued to possess all the rights and immunities 
 which were conferred upon each company by its original charter. The 
 Central Company having been exempted from taxation beyond a lim- 
 ited amount by its original charter, it was held not to be within the 
 power of the legislature to impose an increased tax after the consoli- 
 dation was effected ; but as the Macon Company had no provision in 
 its charter limiting its liability to taxation, the power of the legislature 
 remained unimpaired to tax its franchises, property and income after 
 its consolidation with the Central. It was said in the opinion of the 
 court that "if in the statute there be no words of grant of corporate 
 powers, it is difficult to see how a new corporation is created. It" it 
 is, it must be by implication; and it is an unbending rule that a grant 
 of corporate existence is never implied." It was held that the act 
 did not work the dissolution of the existing corporations, and. at the 
 same time the ci'eation of a new company, the court giving among 
 other reasons that there was no provision for the surrender of the cer- 
 tificates of stock of the shareholders of the Central, and none for the 
 issue of other certificates to them. It will be observed in this case 
 that the road whose charter contained the exemption from taxation 
 was preserved intact by the consolidation ; and it was held that its 
 exemption continued, while the other road was undoubtedly intended 
 to go out of existence ; and as the Macon road held its property and 
 franchise subject to taxation, the Central, succeeding to the franchises 
 and property, held them alike subject. Other cases to the same effect, 
 and holding that the act of consolidation did not operate as a dissolu- 
 tion of the constituent companies are, Chesapeake and Ohio Railroad 
 v. Virginia, 94 U. S. 718; Green County v. Conness, 109 U. S. 104; 
 and Tennessee v. Whitworth, 117 U. S. 139.
 
 992 KEOKUK AND WESTERN R. CO. V. MISSOURI. 286 
 
 Upon the other hand, we have held that the consolidation acts of 
 Ohio and Maine worked a dissolution of the constituent companies 
 and the incorporation of a new company, and that such company was 
 subject to intermediate acts declaring the charters of corporations sub- 
 ject to be altered, amended, or repealed by the legislature. Shields 
 v. Ohio, 95 U. S. 319; Railroad Company v. Maine, 96 U. S. 499. 
 A leading case is that of a Railroad Company v. Georgia, 98 U. S. 359 T 
 362, wherein two railroad companies, each of which enjoyed by its 
 charter a limited exemption from taxation, were consolidated by an 
 act of the legislature passed April 18, 1863, which authorized a con- 
 solidation of their stocks, conferred upon the consolidated companies 
 full corporate powers, and continued to it the franchises, privileges, 
 and immunities which the companies had held bv their original char- 
 ters. It was held that by the consolidation the original companies 
 were dissolved and a new corporation created, which became subject 
 to the provisions of a statutory code, adopted January i, 1863, per- 
 mitting the charters of private corporations to be changed, modified, 
 or destroyed at the will of the legislature. It was further held that 
 a subsequent legislative act taxing the property of such new corpora- 
 tion as other property in the state was taxed was not a law impairing 
 the obligation of a contract. It was said that the consolidation pro- 
 vided for was not a merger of one company into another, and the case 
 of Railroad Company v. Georgia, 92 U. S. 665, was distinguished 
 from it in this particular. 
 
 "Nor was it," says Mr. Justice Strong, "a mere alliance or con- 
 federation of the two. If it had been, each would have preserved its 
 separate existence as well as its corporate name. But the act author- 
 ized the consolidation of the stocks of the two companies, thus mak- 
 ing one capital in place of two. It contemplated, therefore, that the 
 separate capital of each company should go out of existence as the 
 capital of that company." In St. Louis, Iron Mountain, etc., Rail- 
 way v. Berry, 113 U. S. 465, a like effect was given to the consolida- 
 tion of two roads by an agreement which provided that all the property- 
 of each company should be taken and deemed to be transferred to the 
 consolidated company "as such new corporation without further act 
 or deed." It was held that this created a new corporation, with an 
 existence dating from the time the consolidation took effect, and that 
 it was subject to constitutional provisions with reference to taxation 
 in force at that time. See, also, McMahan v. Morrison. 16 Ind. 172. 
 
 Looking at the act in question in this case, we find that, by section i, 
 any Missouri railroad company whose tracks should connect with the 
 road of an adjoining state was authorized to make and enter into an 
 agreement with such connecting company for the consolidation of the 
 stock of the respective companies whose tracks should be so con- 
 nected, making one company of the two, whose stock should be so 
 consolidated upon such terms, conditions, and stipulations as might be 
 mutually agreed between them; that, by section 2, "such consolida- 
 tion shall not be made, unless the terms and provisions thereof shall 
 be approved by a majority of the stock, or the holders of a majority
 
 286 POWER AS TO CONSOLIDATION. 993 
 
 of the capital stock in each of said companies whose stock shall be 
 consolidated;" that, by section 3, the board of directors were author- 
 ized to adopt by resolution a new corporate name for the consolidated 
 company, and call in the certificates of stock then outstanding in each 
 company, and exchange them for stock in the new company; and pro- 
 viding that a copy of the consolidation agreement, and the name 
 adopted for the new company, "shall be filed with the secretary of 
 state, and shall be conclusive evidence of such consolidation, and of 
 the corporate name of the consolidated company." It is difficult to 
 see how the legislature could provide more clearly for the extinguish- 
 ment of the prior companies, and the formation of a new one, than 
 by providing that the two companies shall become one ; that new cer- 
 tificates of stock shall be issued in exchange for the stock of the con- 
 stituent companies ; and that the consolidation agreement shall be 
 recorded with the secretary of state as the charter of a new company. 
 In our opinion this was the effect of the act in question. 
 
 It is impossible to conceive of a corporation existing without stock, 
 or certificates representing the interests of the corporators in the or- 
 ganization. Now if the act provides that these certificates shall be 
 surrendered, and certificates in another company issued in their place, 
 what becomes of the prior companies ? Who are their stockholders, 
 who their officers? If the stock in the new company is sold, what 
 interest in the prior companies passes by the sale ? There can be but 
 one answer to these questions. The property and franchises of the 
 prior companies are gone as much as if they had formally surrendered 
 their charters. The new company may doubtless receive by trans- 
 mission from its constituent companies their property, rights, privi- 
 leges and franchises, including any immunity from taxation, but it re- 
 ceives them as an heir receives the estate of his ancestor, or as a 
 grantee receives the estate of his grantor, by inheritance, succession, 
 or purchase. The result is not a mere union or partnership of two 
 companies, nor the merger of the franchises of one in another, but 
 the extinguishment of one and the creation of another in its place. 
 Speaking of a similar act of Ohio, which declared that the consoli- 
 dated companies "shall be deemed and taken to be one corporation, 
 possessing within the state all the rights, privileges and franchises, 
 and subject to all the restrictions, liabilities and duties of such corpo- 
 rations of this state so consolidated," Mr. Justice Swayne observed 
 in Shields v. Ohio, 95 U. S. 319, 322,323: "It (the consolidation) 
 could not occur without their consent. The consolidated company 
 had then no existence. It could have none while the original corpo- 
 rations subsisted. All the old and the new could not co-exist. It 
 was a condition precedent to the existence of the new corporation that 
 the old ones should first surrender their vitality and submit to dissolu- 
 . tion. This being done, eo instanti the new corporation came into 
 existence." 
 
 It follows from this that when the new corporation came into exist- 
 ence, it came precisely as if it had been organized under a charter 
 granted at the date of the consolidation, and subject to the constitu- 
 66 WIL. CAS.
 
 KEOKUK AND WESTERN R. CO. V. MISSOURI. 286 
 
 tional provisions then existing, which required (art. n, 16) that no 
 property, real or personal, should be exempted from taxation, except 
 such as was used exclusively for public purposes; in other words, 
 that the exemption from taxation contained in section 9 of the orig- 
 inal charter of the Alexandria and Bloomfield Railway Company did 
 not pass to the Missouri, Iowa and Nebraska Company. As was 
 said of an Arkansas corporation, in St. Louis, Iron Mountain, etc., 
 Railway v. Berry, 113 U. S. 465, 475, "it came into existence as a 
 corporation of the state of Arkansas, in pursuance of its constitution 
 and laws, and subject in all respects to their restrictions and limita- 
 tions. Among these was that one which declared that 'the property 
 of corporations now existing, or hereafter created, shall be forever 
 subject to taxation the same as property of individuals.' This ren- 
 dered it impossible in law for the consolidated corporation to receive 
 by transfer from the Cairo and Fulton Railroad Company, or other- 
 wise, the exemption sought to be enforced in this suit." See also, 
 Memphis and Little Rock Railroad v. Commissioners, 112 U. S. 609; 
 Shields v. Ohio, 95 U. S. 319; Louisville and Nashville Railroad v. 
 Palmes, 109 U. S. 244. 
 
 Nor was the exemption saved by section 3 of article n, providing 
 that "all statute laws of this state now in force, not inconsistent with 
 this constitution, shall continue in force until they shall expire by 
 their own limitation, or be amended or repealed by the general as- 
 sembly." This referred to statutes in force at the time the constitu- 
 tion was adopted, the operation of which continued, notwithstanding 
 the constitution. In this case, however, the exemption contained 
 in section 9 of the charter of the Alexandria and Bloomfield Railway 
 Company ceased to exist, not by the operation of the constitution, 
 but by the dissolution of the corporation to which it was attached. 
 
 It is further insisted, however, that under section 4 of the act of 
 March 2, 1869, there was a further provision that the consolidated 
 company should be "subject to all the liabilities, and bound by all 
 the obligations of the company within this state," and "be entitled 
 to the same franchises and privileges under the laws of this state as if 
 the consolidation had not taken place." Whether, under the name 
 "franchises and privileges," an immunity from taxation would pass 
 to the new company may admit of some doubt, in view of the decis- 
 ions of this court, which, upon this point, are not easy to be recon- 
 ciled. In the Chesapeake and Ohio Railway v. Miller, 114 U. S. 
 176, it was held that an immunity from taxation enjoyed by the Cov- 
 ington and Ohio Railway Company did not pass to a purchaser of 
 such road under foreclosure of a mortgage, although the act provided 
 that "said purchaser shall forthwith be a corporation," and "shall 
 succeed to all such franchises, rights and privileges * * * as 
 \vould have been had * * * by the first company but for such 
 sale and conveyance." It was held, following in this particular, 
 Morgan v. Louisiana, 93 U. S. 217, that the words "franchises, 
 rights and privileges" did not necessarily embrace a grant of an ex-
 
 287 POWER AS TO CONSOLIDATION. 995 
 
 emption or immunity. See also Picard v. Tennessee, etc., Railroad, 
 130 U. S. 637. 
 
 Upon the other hand, it was held in Tennessee v. Whitworth, 117 
 U. S. 139, that the right to have shares in its capital stock exempted 
 from taxation within the state is conferred upon a railroad corpora- 
 tion by state statutes granting to it "all the rights, powers and privi- 
 leges" conferred upon another corporation named, if the latter cor- 
 poration possesses by law such right of exemption, citing in support 
 of this principle a number of prior cases. See also Wilmington and 
 Weldon Railroad v. Alsbrook, 146 U. S. 279, 297. 
 
 But the decisive answer to this objection is that the legislature had 
 no power, in 1869, to extend to a new corporation created by the 
 consolidation an exemption contained in an act passed in 1857, before 
 the constitution was adopted, and hence that, under the terms of this 
 act, we can not hold that immunity from taxation passed as a fran- 
 chise or privilege to the consolidated corporation. The construction 
 claimed by the defendant would be directly in the teeth of the consti- 
 tutional provision that no property shall be exempted from taxation. 
 While, as heretofore observed, an exemption from taxation contained 
 in a charter previously granted could not be taken away by this con- 
 stitutional provision without the impairment of the obligation of a 
 contract, it doubtless applies to all corporations thereafter formed 
 either by original charter or by the consolidation of prior corporations 
 under the act of 1869. * * * 
 
 Affirmed. Harlan and Brewer, JJ. , dissent. 
 
 Note. See note at end of section 288, infra, Nos. 1, 4 and 5. 
 
 Sec. 287. (^) Effect of consolidation upon creditor's rights. 
 COMPTON v. RAILWAY COMPANY. 1 
 
 1888. IN THE SUPREME COURT OF OHIO. 45 Ohio State Reports 
 
 592-625. 
 
 [In 1862 the Toledo and Wabash Railway Company, formed by the 
 consolidation of a road in this state with one in the state of Indiana, 
 issued $600,000 of what were termed convertible equipment bonds, 
 payable in 1883, and bearing interest at the rate of seven per cent., 
 payable annually. It operated its road until 1865, when it was con- 
 solidated with certain roads in the state of Illinois, the new company 
 being called the Toledo, Wabash and Western Railway Company. It 
 was stipulated in the agreement forming the basis of the consolida- 
 tion that these equipment bonds should be "protected" by the new 
 company at their maturity. In 1873 the last-named company, con- 
 tinuing to own and operate its road, issued certain bonds amounting 
 to $5,000,000, and secured the same by a mortgage upon all its 
 1 Statement of facts abridged, arguments and part of opinion omitted.
 
 996 COMPTON V. RAILWAY COMPANY. 287 
 
 property. Under proceedings begun in 1875 for the foreclosure of 
 this mortgage in the courts of Ohio, Indiana and Illinois, the road 
 was sold in 1877 to one Ellis and two others associated with him, it 
 being specially provided in the decree rendered in the court of this 
 state, the common pleas of Lucas county, that the sale should be 
 made "without prejudice to any claim which may be made by the 
 holders" of the above-named equipment bonds. The owner of the 
 road at the commencement of this suit, The Wabash, St. Louis and 
 Pacific Railway Company, derives its title from Ellis and his associ- 
 ates. 
 
 The case, after judgment for plaintiff in the common pleas court, 
 was appealed by the defendants to the district court, where it was 
 reserved for decision to the supreme court upon an agreed statement 
 of facts.] 
 
 MINSHALL, J. The principal grounds upon which the plaintiff as- 
 serts his right to relief are (i) the provisions of the statute under 
 which the proceedings in consolidation were had; (2) the stipulation 
 in the agreement forming the basis of the consolidation; and (3) the 
 mortgage executed by the new company in 1867, known as the con- 
 solidated mortgage. 
 
 (i) The bonds owned by the plaintiff, amounting at their face 
 value to $150,000, were issued by the Toledo and Wabash Railway 
 Company in 1862, were unsecured by mortgage on the property of 
 the company, and the entire series, of which they were part, were 
 denominated convertible equipment bonds, and amounted to $600,000, 
 payable in 1883, bearing interest at the rate of 7 per cent., payable 
 semi-annually, with the usual coupons attached. The company had 
 been formed by the consolidation of the road of a company in Ohio 
 with one of a company in Indiana, under the laws of these states, 
 and its road extended from Toledo in the former, to State Line city 
 in the latter, state. It operated its road until in 1865, when it was 
 consolidated with certain other roads in the state of Illinois, the new 
 company thus formed taking the name of the Toledo, Wabash and 
 Western Railway Company. 
 
 The consolidation was had under the laws of the several states in 
 which the constituent roads were located, the statute in this state ap- 
 plicable to .the transaction being the act of April 10, 1856 (i S. & 
 C. 327). The act required that an agreement forming the basis of 
 the consolidation should be presented to the stockholders of the re- 
 spective companies at separate meetings called for that purpose upon 
 due notice ; and then provided that upon its adoption by a vote of two- 
 thirds of the stockholders, the filing of the agreement with the requi- 
 site certificate of its adoption, by the secretary of each company, in 
 the office of the secretary of state, and the election of directors by the 
 stockholders of the new company, the consolidation should be deemed 
 complete, and that all the rights, privileges and franchises and all the 
 property of every description "of each of the corporations, parties to 
 the same * * * shall be deemed to be transferred and vested in 
 such new corporation without further act or deed," with this express
 
 287 POWER AS TO CONSOLIDATE. \ 997 
 
 proviso, "that all rights of creditors, and all liens upon the property 
 of either of said corporations, shall be preserved unimpaired, and the 
 respective corporations may be deemed to be in existence to preserve 
 the same; and all debts, liabilities and duties of either of said com- 
 panies shall thenceforth attach to said new corporation and be en- 
 forced against it to the same extent as if said debts, liabilities and 
 duties, had been contracted by it." Whilst the Indiana statute is not 
 so definite in its provisions as to the rights of creditors of the constitu- 
 ent companies as our own, yet an effect has been given it by the con- 
 struction of its courts that is substantially the same. McMahan v. 
 Morrison, 16 Ind. 172; Indianapolis, C. & L. R. Co. v. Jones, 29 
 Ind. 465. 
 
 What, then, is the sum of the rights of creditors that, as against 
 proceedings had under it, are to be preserved unimpaired? It is true 
 that, ordinarily, a creditor has no right that will interfere with that of 
 his debtor to sell and dispose of his property for a valuable consider- 
 ation, unless he has taken the precaution to acquire some lien upon 
 it, by mortgage or otherwise, as a security in his own behalf. As a 
 rule the right of an unsecured creditor is confined to the personal ob- 
 ligation and the undisposed of property of his debtor; still it is not 
 strictly accurate to say that such creditor has no claim upon the prop- 
 erty of his debtor, for in one sens.e all the property owned by a debtor, 
 unless exempt by statute from sale on execution, is subject to the 
 claims of his creditors, and he can not dispose of it, unless for a 
 valuable consideration, so as to defeat this right. It is upon this 
 principle that relief is constantly afforded creditors in equity against 
 conveyances in fraud of their rights. Hence the right of a creditor, 
 though unsecured, to maintain an action for a personal judgment, is 
 not the sum of his rights. These may arise from a variety of cir- 
 cumstances, conferring not merely a right to a personal judgment for 
 money, but to have it satisfied from certain specific property formerly 
 owned by the debtor, irrespective of its acquisition by others. The 
 decease of the debtor, assignments made by him, his bankruptcy, loss 
 of the power to own and acquire property, as, for example, the dis- 
 solution of a corporation, or the civil death of the debtor, are some 
 of the most frequent instances in which this right of the creditor has 
 been recognized. 
 
 But the question presented here is not general, but special: It is, 
 what are the rights of unsecured creditors of an incorporated railway 
 company whose entire road and property have been transferred to a 
 new company, formed by its consolidation with other roads, under the 
 laws of this state? The general doctrine that all the property of a 
 corporation is a trust fund for its creditors, and that upon its dissolu- 
 tion they have the right to require that it be applied in payment of 
 their claims, is not controverted by the defendants. There seems to 
 be no conflict in the authorities as to this, and that the rigiit gives rise 
 to an equitable lien upon the property in favor of the creditor that is 
 superior to the claims of every one but purchasers for value without 
 notice. Story Eq. Juris., 1252 ; 2 Kent Com., 307, and note b; Mor.
 
 998 COMPTON V. RAILWAY COMPANY. 287 
 
 Priv. Cor., 780, 1035; Mont, and West Point R. Co. v. Branch, 
 59 Ala. 153. 
 
 Nor can there be much question but that by consolidation the prior 
 companies are extinguished for all purposes except to preserve the 
 rights of their creditors, for which purpose they "may," in the lan- 
 guage of the law, "be deemed to be in existence." The observa- 
 tion of Mr. Justice Swayne, in construing this statute in Shields v. 
 Ohio, 95 U. S. 319, that "it was a condition precedent to the exist- 
 ence of the new corporation that the old ones should first surrender 
 their vitality and submit to dissolution" is quite accurate. 
 
 It is, however, claimed by the defendants that no new rights are 
 conferred by the statute upon creditors; that if they were unsecured 
 before, they remain such after, the consolidation; and that the new 
 company may deal with the property may sell or mortgage it as 
 could have been done, and with like effect, by the former company 
 had it continued the owner thereof. This argument is placed upon 
 two grounds, (i) the assumption that the transaction is analogous to 
 a sale, and (2) that such is the effect of the statute upon all con- 
 tracts made subsequent to its passage. We will consider them seria- 
 tim, 
 
 i. The first is, as we think, certainly erroneous. Whilst the 
 transaction has some of the features, it is wanting in the essential ele- 
 ments of a sale. A sale implies a vendor and a vendee, and by it the 
 former sells and transfers a thing that he owns to the latter for a price 
 paid or to be paid to himself. The vendor parts with nothing but his 
 property, and for it receives a quid pro quo. Such is not the case 
 where companies are consolidated under this statute. It is true that 
 the owner of each constituent road parts with its property. But it 
 does much more ; it not only parts with its property, but ceases to be 
 a juristical entity, capable of owning or acquiring property. It does 
 not, and could not, receive any consideration for the transfer, because 
 it is extinguished and dissolved by the act of its stockholders in assent- 
 ing to the proposed agreement. It is futile to urge that the consider- 
 ation is received by the stockholders. They are not the corporation, 
 nor do they represent it in its relation to its creditors. "An essential 
 incident of corporations is that their rights are not vested in the ag- 
 gregate of individuals, but in the ideal whole, regarded as distinct 
 from the members of which it is composed." Per Mr. Poste in his 
 edition of Gaius, 154. And see Bank of Augusta v. Earle, 13 Pet. 
 519, 587. There has been no relaxation of this principle in its appli- 
 cation to the relation of an incorporated company to its ci'eclitors. It 
 is the owner in law and equity of all its corporate property, and it, 
 and not the stockholders, is the debtor in all corporate obligations. 
 Mor. Priv. Corp., 2 ed., 227. Moreover, in a consolidation of 
 companies, the stockholders receive no part of the property or assets 
 of their respective companies ; these pass to the ownership of the new 
 company. All that the stockholders of either of the old companies 
 receive is stock in the new company in exchange for what they held 
 in the former company. We must look elsewhere for the analogies
 
 28/ POWER AS TO CONSOLIDATION. 999 
 
 to the transactions whereby, through consolidation, a new company 
 acquires the property of certain old ones. We are not without such 
 analogies. They are to be found in the numerous instances in ancient 
 and modern law, where, to use the terminology of the Roman civil 
 law, a universitas juris is transferred. The term expresses the legal 
 conception of a university or bundle of rights and liabilities, belonging 
 to one person and constituting, as it were, his legal personality ; and 
 where these are transferred by one and the same act to another, the 
 latter is said to acquire per univcrsitatem, that is, he becomes clothed 
 with the rights and legal duties of the individual to whose personality 
 he succeeds. Among some of the leading instances of such acquisi- 
 tion are (i) a succession to an inheritance by an heir somewhat 
 obscured in the common law by its division between the heir and the 
 personal representative of the deceased (Maine Anc. Law, 180) ; 
 (2) where, by adrogation, one not under power became the son of 
 another, and the adrogator by the diminution of the status of the 
 adrogatus, or adopted son, acquired his property and, by praetorian 
 law, became liable for his debts to the extent of the property so ac- 
 quired; (3) co-emption, where the husband acquired, by the mar- 
 riage, the property of the wife, and by a remedy furnished by the 
 praetor, was made liable for her debts in the same manner as in the 
 case of adrogation. And in the common law may be suggested, not 
 merely the case of an inheritance transmitted by the death of the an- 
 cestor, but also the estate of one regarded as civiliter mortus, which 
 was transmitted and administered upon as that of a person in fact de- 
 ceased. And the succession of an assignee in bankruptcy to the en- 
 tire property of a bankrupt is, as observed by Sir Henry Sumner 
 Maine, a modified form of a universal succession. And, he says: 
 "Were it common among us for persons to take assignments of all a 
 man's property on condition of paying all his debts, such examples 
 would exactly resemble the universal successions known to the oldest 
 Roman law." Maine Anc. Law. 180. 
 
 In all these cases the point most to be observed, is the extreme care 
 of the law to secure the rights of creditors. The case of an inheri- 
 tance is familiar and needs little or no comment the creditors of the 
 deceased are regarded as having a lien upon the property of the de- 
 ceased, and this is secured to them through the methods of administra- 
 tion, and so in the case of those regarded as being civilly dead, for 
 example in the case of a monk, the individual, in anticipation of be- 
 coming a "monk professed," could make a will and appoint his own 
 executor, but if he did not, administration was awarded by the ordi- 
 nary as upon the estate of one in fact deceased, i Bl. Com., 132. 
 For some reason, not well understood, neither the adrogator nor the 
 husband in a marriage by co-emption was, by the ancient civil law, 
 liable to creditors for the debts of the person thus reduced to his 
 power. But a remedy was provided at an early period through an 
 action given by the praetor, in which, by a fiction, the former status 
 of the debtor was deemed to continue, and this, like all fictions intro- 
 duced to favor the remedy, could not be disputed, and preserved the
 
 IOOO COMPTON V. RAILWAY COMPANY. 287 
 
 rights of the creditor as against the property of his debtor. Poste's 
 Gaius Inst., bk. 3, 84; Poste's Gaius Inst., bk. 4, 38, and com- 
 ments by Poste, p. 521 ; Just. Inst., bk. 3, tit. 10, 1-3 ; and 
 Hunter Rom. Law (2d ed.), 741. And it is worthy of note in this 
 connection that our statute regulating proceedings in consolidation, 
 provides that, to preserve the rights of creditors, "the respective cor- 
 porations may be deemed to be in existence." It thus appears to be 
 a principle of universal law that the death, real or supposed, of an 
 individual, possessed of property and owing debts, gives to his cred- 
 itors a right to have his property applied to the satisfaction of their 
 claims. It is a misapprehension of the doctrine to say that its appli- 
 cation to the consolidation of railway companies would make every 
 consolidation an assignment for the benefit of creditors. The new 
 company does not take the property as assignee, but in its own right, 
 subject only to the payment of the debts of the constituent compa- 
 nies. This liability is created by statute and the lien results as a con- 
 sequence. It is not a jus in re, nor a jus ad rem, but a charge in 
 the nature of an equitable lien upon the property available against all 
 purchasers with notice. 3 Pom. Eq. Jur., 1233, and note 3. The 
 reason underlying the principle upon which the law proceeds in all 
 this class of cases is, that the debtor does not merely part with his 
 property and rights, but also loses his capacity to own and acquire 
 property ; and all that is left the creditor upon which he trusted his 
 debtor property constituting the principal ground of credit in all 
 cases is the property that his debtor owned, and to that he has the 
 right to look for the satisfaction of his claim, the person whom he 
 trusted having ceased to be. It is no answer to this to say that the 
 new company is required to assume the payment of the debts of the 
 old companies. I am aware that the convenience of trade and com- 
 merce has so changed the ancient doctrines of the common law that a 
 debtor may be required in a variety of instances to accept as a creditor 
 one with whom he did not in fact contract ; but I know of no in- 
 stance in which it can be said that a creditor can be compelled to ac- 
 cept a new debtor in the place of the one to whom he extended 
 credit. It is impossible to perceive how this could be done without 
 impairing the obligation of the contract. The company with which 
 he dealt may have possessed ample means to discharge all its debts; 
 the new one may, by reason of the debts of the other companies, be 
 hopelessly insolvent, and to compel him to accept it as a general 
 creditor, might be but another mode of robbing him of his credits. 
 
 2. The claim is, however, that such is the effect of the statute 
 under which the consolidation was had, and having been in force at 
 the time the equipment bonds were issued, entered into the contract 
 and became a part of it. It is difficult to perceive how this claim can 
 be maintained in the face of the language of the statute heretofore 
 quoted, "that all rights of creditors * * * of either of said cor- 
 porations shall be preserved unimpaired." There is no question but 
 that every statute enters into and forms part of any contract to which 
 it is applicable as a part of the law of the land, but it is not perceived
 
 287 POWER AS TO CONSOLIDATION. IOOI 
 
 how, in the application of this rule, a contract may be impaired or in 
 any way affected by proceedings had under a statute which by its 
 terms excludes any such effect. The proposition involves a contradic- 
 tion in terms. The only question that can be raised in such a case is, 
 whether a particular effect claimed for a proceeding had under the 
 statute will or will not impair the contract of a creditor, and an 
 answer to the question in the affirmative must be fatal to the claim. 
 No reason is perceived why a different intention should be imputed 
 to the legislature in the enactment of this law. The object of the 
 legislature in authorizing the consolidation of railway companies was, 
 as we apprehend, not to enable the new company to obtain credit by 
 impairing the securitv of existing creditors of either of the former 
 roads, but to enable existing companies to unite and form a continu- 
 ous line of railway under one corporate management between widely 
 separated points of trade and commerce ; and as this may be attained 
 without impairing the rights of creditors of the constituent roads, a 
 court might well hesitate to so construe the statute if its provisions 
 were silent on the subject. It would seem to be quite as consistent 
 with a wise public policy to preserve the foundations of commercial 
 credit as to promote the formation of great lines of interstate com- 
 merce ; both may be necessary to the interests of commerce, but the 
 one not more than the other. 
 
 This view is much strengthened by the further provision as to the 
 rights of creditors, that "the respective corporations shall be deemed to 
 be in existence to preserve the same." How, for this purpose, shall they 
 be deemed to be in existence as legal en'tities with or without prop- 
 erty? Manifestly in the former sense, for the existence of a corporate 
 entity without property wherewith to answer claims against it would be 
 of no avail to a creditor; a judgment against it would be without 
 fruit. The clause was inserted in the interest of creditors, and the 
 only interpretation that can be of any avail to them can not be rejected 
 without doing violence to well settled rules of construction. The 
 statute introduces a fiction much as the praetor did in favor of the 
 creditors of an adrogatus, and we see no reason why it was not in- 
 tended to answer substantially the same purpose. In a suit by a 
 creditor, the company, though in fact dissolved, is to be deemed in 
 existence, and a judgment in his favor, whether against it or the new 
 company, is to be satisfied from the property owned by the old company 
 at the time of consolidation as if such proceedings had never been 
 had ; the fact of consolidation is pushed aside, and no one will be 
 permitted to question the fiction until his rights have been satisfied. 
 Of this no one as a creditor of the new company can in justice com- 
 plain. The lien is a result of the proceedings under which the new 
 company acquired its title to the property, and of it creditors of the 
 new company have, in law, the same notice they have of prior mort- 
 gages upon the same property. 
 
 The former decisions of this court do not affect the question as to 
 the rights of creditors. They are simply to the effect that the statute 
 becomes a part of all subscriptions to the capital stock of a company
 
 1002 COMPTON V. RAILWAY COMPANY. 287 
 
 made subsequent to its passage, so that the same may be recovered in 
 a suit by the consolidated company brought for that purpose. Mans- 
 field, Coldw. & L. M. R. Co. v. Brown, 26 Ohio St. 223. The 
 rights of a stockholder are preserved by giving him an election to be- 
 come one in the new company, or of declining, and being paid the 
 highest market value of his stock at any time within the six months 
 next preceding the making of the agreement, but unless he does so 
 previous to the consolidation, he is treated as a stockholder in the new 
 company; and this fact accentuates the construction claimed for cred- 
 itors ; as no voice is given them in the transaction, it is but reasonable 
 that their rights should be in no way affected by it. 
 
 II. The plaintiff does not, however, base his claim to relief solely 
 upon the provisions of the statute, but likewise upon the effect of the 
 stipulation in the agreement forming the basis upon which the consol- 
 idation was had, that the class of bonds owned by him should be pro- 
 tected, both as to interest and principal, as the same should mature, 
 by the new company. The principle upon which this claim is based 
 is, that where property is transferred upon the condition that the 
 grantee shall pay some third person a debt or sum of money, the lat- 
 ter acquires an equitable lien on the property to the extent of the debt 
 or sum of money to be paid him. This principle is well recognized 
 and has been applied in a great variety of cases. A masterly treat- 
 ment of the doctrine by Ranney, J., will be found in Clyde v. Simp- 
 son, 4 Ohio St. 445. See, also, Story Eq. Juris., 1244-6; Pom. 
 Eq. Juris., 166 and 1234; Montgomery and West Point R. Co. 
 v. Branch, 59 Ala. 139; Hamilton v. Gilbert, 2 Hiesk. 680; Van- 
 meter v. Vanmeter, 3 Grat. 148. 
 
 It is true that most of the instances in which this lien has been rec- 
 ognized is where property had been devised charged with the pay- 
 ment of debts or legacies to others, and for the plain reason that the 
 most frequent occasions for its application will arise in such instances, 
 and not because the principle is in its nature inapplicable to other 
 transfers of property; for, as is said by Ranney, J., in Clyde v. Simp- 
 son, supra, a "doctrine resting upon the broad foundations of justice 
 and conscience" can not be made "to depend upon the manner in 
 which the title is derived." No such limitation has been placed upon 
 the doctrine by the courts or text-writers. Story Eq. Juris., 1746. 
 In Vanmeter v. Vanmeter, supra, it appears that a grantor had 
 made a conveyance of all his real estate in consideration of $i and 
 the agreement of the grantees to pay his debts and a certain leg- 
 acy ; this was held by the court to constitute a lien upon the property 
 in favor of the creditors. Many similar instances will be found among 
 the cases cited; and, independent of the provisions of the statute, we 
 are unable to see why the principle, when applied to the facts of this 
 case, does not create a similar lien in favor of the holders of these 
 equipment bonds. It would seem to follow as a corollary from what 
 has been said as to the lien based upon the provisions of the statute. 
 Whatever may be urged against the claim that the agreement to pro- 
 tect these bonds imposed the duty of securing them by mortgage or
 
 287 POWER AS TO CONSOLIDATION. IOO$ 
 
 otherwise, the least that can be claimed for such agreement is, that it 
 imposed the duty of paying them, interest and principal, at maturity. 
 And, as all the property of the company issuing them was transferred 
 upon the basis of this agreement, the transfer was, at least, upon the 
 stipulation to pay his claim as a part of the consideration thereof. If, 
 for the purpose of withdrawing from the cares of business, or any 
 other reason, a private person were to make a conveyance of all his 
 property to another upon the agreement of the latter to pay his debts, 
 it will not be questioned but that such transfer would create an equi- 
 table lien upon the property in favor of creditors, that would avail 
 against all persons with notice. This case is every way analogous to 
 such a transfer, and no reason exists why it should not be governed 
 by the same principle so far as the rights of creditors are con- 
 cerned. The only difference between the real and the supposed case 
 strengthens the reason of its application to the real one. In the sup- 
 posed case the person making the transfer may still own and acquire 
 property, but in the real one, as heretofore shown, the debtor termi- 
 nates its personality, and can no longer own or acquire anything; all 
 that is left the creditor is the property that it owned; and, unless we 
 disregard all the analogies of the law, this property must be charged 
 with its debts in the hands of one that succeeded to its place in con- 
 sideration of the agreement to pay them, and the lien so created must 
 be superior to the title of all purchasers with notice. * * * 
 Judgment for plaintiff , finding the amount due and order of sale. 
 
 Note. This case was affirmed by the United States Supreme Court. 1897, 
 Compton v. Jessup, 167 U. S. 1. 
 Note. Consolidation, 
 
 1. Meaning of: A late case defines consolidation ^o be "a merger, a union, 
 or amalgamation, by which the stock of the two is made one, their property 
 and franchises combined into one, their powers become the powers of one, 
 their names merged into one, and the identity of the two practically, if not 
 actually, runs into one," Hunt, J., in State v. Montana R., 21 Mont. 221, 4& 
 L. R. A 271 (1898). The fullest discussion of themeaningof consolidation is 
 in, 1879, Meyer v. Johnson & Stewart, 64 Ala. 603, on 650-669; see also, 1808, 
 Adams v. Yazoo & M. V. R. Co. (Miss.), 24 So. Rep. 200, not officially reported ; 
 1899, Rafferty v. Buffalo City Gas Co., 37 App. Div. (N. Y.) 618. 
 
 In England the term used is amalgamation, and it there has as uncertain 
 and undefined a meaning as consolidation here. See Meyer v. Johnston, 64 
 Ala. 603, 651, et seq., and 1898, Wall v. London & N. W. Assetts Corp., 79 L. T. 
 R. 249. 
 
 Illustrations: Power to connect or unite does not permit consolidation: 1895, 
 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677; exchange of stock by one 
 corporation for that of another does not effect consolidation : 1899, Rafferty v. 
 Buffalo City Gas Co., 37 App. Div. (N. Y. ) 618 ; a short lease is not a consoli- 
 dation: State v. Montana R., 21 Mont, 221, 45 L. R. A. 271 ; but a long lease 
 is practically a consolidation: 1888, State v. Atchison, etc., R., 24 Neb. 143; 
 power to consolidate does not include a power to sell or lease: 1875, Tippe- 
 canoe County v. Lafayette, etc., Co., 50 Ind. sg ; 1882, State v. Vanderbilt, 37 
 Ohio St. 590; 1882, Archer v. Terre Haute R. Co., 102 111. 493; 1H86, 
 Mills v. Central R., 41 N. J. Eq. 1 ; 1889, East L. & R. R. Co. v. Texas, 75 Tex. 
 434; 1892, St. L., etc., R. Co. v Terre Haute, etc., R. Co., 145 V. S. 393. But 
 see, contra, 1875, Williamson v. N. J. So. R., 26 N J. Eq. 398; 1882, Branch v. 
 Jesup, 106 U. S. 468; 1895, Chicago, S. F., etc. t Co. v. Ashling, 160 111. 373. 
 
 2. Consent of the state is essential ; but ratification by the legislature after
 
 IOO4 COMPTON V. RAILWAY COMPANY. 287 
 
 an attempt at consolidation will be sufficient: 1856, Fisher v. Evaneville, 
 etc., R. Co., 7 Ind. 407; 1858, Lauman v. Lebanon Valley R. Co., 30 Pa. St. 
 42, 72 Am. Dec. 685; 1858, Pearce v. Madison, etc., P. R. Co., 21 How. (62 
 U. S.) 441; 1859, Bishop v. Brainerd, 28 Conn. 289 (ratification); 1861, State 
 
 Missouri Pac. R. Co. v. Owens, 1 W. & W. Civ. Cas. (Tex. Ct. App.), 385; 
 1885; Crawfordsville & D. T. Co. v. State, 102 Ind. 435; 1891, Home Friendly 
 Soc. v. Tyler, 9 Pa. Co. Ct. R. 617; 1892, Cameron v. N. Y. & Mt. V. W. W.. 
 133 N. Y. 336, 31 N. E. Rep. 104; 1893, People v. Rice, 138 N. Y. 151, 33 N. 
 
 Rep. 153; 1898, Topeka Paper Co. v. Oklahoma P. Co., 7 Okla. 220, 54 Pac. 
 Rep. 455; 1900, Wood v. Seattle, Wash. ,52 L. R. A. 369, note. 
 
 The state's permission to consolidate is a license and not the grant of a 
 franchise: 1895, Pearsall v. Great N. R. Co., 161 U. S. 646; 1898, Adams v. 
 Yazoo & M. V. R. Co., 24 So. Rep. 200. 
 
 3. Consent of shareholders: 
 
 (a) In the absence of a reserved power to amend or repeal, or a charter or 
 statutory provision allowing consolidation when the corporation is organized, 
 the unanimous consent of shareholders is essential : 1853, Kean v. Johnson, 
 9 N. J. Eq. 401; 1856, Chapman v. Mad River, etc., R. Co.. 6 Ohio St. 119; 
 1858, Lauman v. Lebanon Valley R., 30 Pa. St. 42, 72 Am.' Dec. 685; 1863, 
 Clearwater v. Meredith, 1 Wall. (68 U. S.) 25, supra, p. 984; 1866, Mowrey v. 
 Ind. & C. R. Co., 4 Biss. 78, Fed. Cas. 9891 ; 1867,'Zabriskie v. Hackensack, 
 etc., R., 18 N. J. Eq. 178; 1573, Black v. Del. & R. Canal Co., 24 N. J. Eq. 
 455 ; 1882, N. O. G. L. Co. v. Louisiana L. Co., 11 Fed. Rep. 277 ; 1886, Mills v. 
 Central R. Co., 41 N. J. Eq. 1 ; 1888, Botts v. Simpsonville & B. Co., 88 Ky. 
 54, 2 L. R. A. 594 ; 1890, Deposit Bank of Owensboro v. Barrett, 11 Ky. L. Rep. 
 910, 13 S. W. Rep. 337; 1891, Home Friendly Soc. v. Tyler, 9 Pa. Co. Ct. 617. 
 
 Long acquiescence is sufficient evidence of consent: 1894, Phinizy v. Au- 
 gusta, K. R. Co., 62 Fed. Rep. 678. 
 
 (6) Under a reserved ^>ower to alter or amend a charter, a majority may 
 be authorized to consent to a consolidation against the wishes of the minority : 
 1856, Railroad Co. v. Dudley, 14 N. Y. 336; 1856, Sparrow v. Evansville, 
 etc., R., 7 Ind. 3(59; 1857, McCray v. Junction R. Co., 9 Ind. 358; 1859, 
 Bishop v. Brainerd, 28 Conn. 289; 1862, Durfee v. Old Colony R. Co., 5 
 Allen (Mass.) 230; 1865, Gardner v. Hamilton Ins. Co., 33 N. Y. 421; 1873, 
 Nugent v. Supervisors, 19 Wall (U. S.) 241; 1875, Mansfield, etc., R. Co. v. 
 Brown, 26 Ohio St. 223; 1877, State v. Maine Cent. R. Co., 66 Me. 488; 1878, 
 Wilson v. Salamanca, 99 U. S. 499; 1885, Middletown v. Boston, etc., R., 53 
 Conn. 351 ; 1894, Hale v. Cheshire R. Co., 161 Mass. 443, 37 N. E. Rep. 307; 
 1895, Market St. R. Co. v. Hellman, 109 Cal. 571, 42 Pac. Rep. 225. 
 
 But there are decisions holding that unanimous consent is required under 
 the reserved power to amend : 1867, Zabriskie v. Hackensack R., 18 N. J. Eq. 
 178; 1893, Earle v. Seattle, etc., R., 56 Fed. Rep. 909. 
 
 4. Effect of consolidation upon former companies: 
 
 The intent of the consolidation statute and agreement controls, but the va- 
 rious views are, as to: 
 
 (a) Their existence: Theories: (1) Old companies are dissolved and go out 
 of existence, there being a new company only after consolidation : 1861, State 
 v. Bailey, 16 Ind. 46, 79 Am. Dec. 405; 1863, Clearwater v. Meredith, 1 Wall. 
 25,swpm,p.984;1868, Indianapolis C. & L. Co. v. Jones, 29 Ind. 465, 95 D. 
 654; 1868, Tagart v. N. C. R., 29 Md. 557; 1875, Shields v. State, 26 Ohio St. 
 86; 1877, Shields v. Ohio, 95 U. S. 319; 1878, Railroad Co. v. Georgia, 98 U. 
 S. 359; 1882, N. O. Gas Lieht & H. Co. v. L. L. & H. Co., 11 Fed. Rep. 277; 
 1888, St. Louis,.!. M. & S. R. v. Berry, 41 Ark. 509; 1888, Kansas, O. & T. R. 
 Co. v. Smith, 40 Kan. 192; 189"4, Keokuk & W. R. Co. v. State, 152 U. S. 301. 
 supra, p. V6tf; lyo. Council G. O. C., etc., R. Co. v. Lawrence, 3 Kan. Ap|,.
 
 287 POWER AS TO CONSOLIDATK \. IOO5 
 
 274; 1897, Rio Grande W. R. Co. v. Telluride, etc., Co., 16 Utah 125, 51 Pac. 
 itep. 146; 1899, Wagner v. Atchison, T. & S. F. R. Co., 9 Kan. App. 661, 58 
 Pac. Rep. 1018; 1901, Ya/.oo & Miss. V. Ry. Co. v. Adams, 180 U. S. 1. 
 
 (2) The old companies are not dissolved, the consolidated company b'eing 
 a (7?<asj-partnership among the old companies and continuing their existence: 
 1830, Farnum v. Blacketone Canal Co., 1 Sumner 46; 1871, Pennsylvania 
 College Cases, 13 Wall. (U. S.) 190; 1873, Columbus, C. & I. C. R. v. Skid- 
 more, 69 111. 566; 1875, Central R., etc., Co. v. Georgia, 92 U. S. 665; 1876, 
 Shackelford v. Mississippi C. R. Co., 52 Miss. 159; 1879, Meyer v. Johnson, 
 64 Ala. 603; 1880, Newport & Cin. Bridge Co. v. Wooley, 78 Ky. 523; 1888, 
 Edison Elec. L. Co. v. N. H. El. Co., 35 Fed. Rep. 233; 1889, Hancock M.L. 
 I. Co. v. Worcester, etc., R., 149 Mass. 214; 1890, United States v. So. Pac. 
 R. Co., 45 Fed. Rep. 596; 1890, Day v. Worcester, N., etc., R. Co., 151 Mass. 
 302; 1896, Louisville Trust Co. v. L.,N. A., etc., R., 75 Fed. Rep. 433. 
 
 (6) Their property : Becomes that of the succeeding company. See infra, 
 this note, 5 (6), (3). 
 
 (c) Their rights generally: These become those of the successor company. 
 See infra, this note 5 (a), (6). 
 
 (d) Their liabilities: These continue against the old company, although 
 they are usually enforcible against the consolidated company: 1873, Prouty 
 v. Lake S., etc., R. Co., 52 N. Y. 363; 1874, Montgomery & W. P. R. Co. v. 
 Boring, 51 Ga. 582; 1876, Shackelford v. Miss., etc., R. Co., 52 Miss. 159; 
 1877, Montgomery, etc., R. v. Branch, 59 Ala. 139; 1888, Louisville, etc., R. 
 v. Boney, 117 Ind. 501; 1888, Compton v. R. Co., 45 Ohio St. 592; 1895, Mar- 
 ket St. R. v. Hellman, 109 Cal. 571; 1897, Compton v. Jesup, 167 U. S. 1; 
 1897, Santa Fe Elec. Co. v. Hitchcock, 9 N. M. 156, 50 Pac. Rep. 332; 1897, 
 In re Utica Nat. Bank Co., 154 N. Y. 268. See, infra, this note. 
 
 5. Effect as to the consolidated company : 
 
 (a) A new corporation, or at least a somewhat different corporation, comes 
 into existence which, for most business purposes, is a distinct entity from the 
 constituent corporations: 1868, Racine, etc., R. Co. v. F. L. & T. Co., 49 111. 
 331; 1875, Wilmer v. The Atlantic, etc , R. Co., 2 Woods 409; 1884, Burger v. 
 Grand Rapids & I. R., 22 Fed. Rep. 561 ; 1885, Pullman Palace Car Co. v. Mo. 
 Pac., etc., Co., 115 U. S. 587; 1886, Graham v. R. Co., 118 U. S. 161 ; 1888, O. 
 & M. R. Co. v. People, 123 111. 467; 1890, Fitzgerald v. Mo. Pac. R., 45 Fed. 
 Rep. 812; 1895, Market St. R. Co. v. Hellman, 109 Cal. 571. 
 
 However, as to interstate consolidations the new company is a new company 
 existing in each state with the powers, rights and franchises that the constit- 
 uent companies in that state had, but not those that one or more of the con- 
 stituent companies created in another state had. And for jurisdictional pur- 
 poses in the United States courts, there are as many new companies (with the 
 name of th6 consolidated company^ as there are states authorizing the consol- 
 idation : 1861, O. & M. R. Co. v. Wheeler, 1 Black (66 U. S.) 286 ; 1865, County 
 of Allegheny v. C. & P. R. Co., 51 Pa. St. 228; 1876, Muller v. Dows, 94 U. S. 
 444; 1886, St. Paul & N. P. R. Co. v. Minn., 36 Minn. 85; 1890, Nashua & L. 
 R. Co. v. B. & L. R. Co., 136 U. S. 356; 1896, St. Louis, etc., R. Co. v. James, 
 161 U. S. 545; 1899, Louisville, N. A., etc., R. Co. v. Louisville Trust Co., 174 
 U. S. 552. 
 
 The new company dates its existence from the consolidation: 1875, Shields 
 v. The State. 26 Ohio St. 86; 1875, Central R. & Banking Co. v. State, 54 Ga. 
 401 ; 1876, State v. Northern Cent. R. Co., 44 Md. 131 ; 1898, Adams v. Yazoo 
 & M. V. R. Co. (Miss.), 24 So. Rep. 200. 
 
 (b) Rights and privileges of the consolidated company : 
 
 (1) Special privileges and immunities: As the consolidated company is a new 
 company dating from the consolidation, as against the state, it is subject to 
 all the laws existing at the date of consolidation, such as the right to repeal 
 or amend, notwithstanding the fact that the charters of the constituent com- 
 panies were not subject to repeal or amendment: 1875, Shields v. State, 26 
 Ohio St. 86; 1895, Mercantile Bank v. Tennessee, 161 U. S. 161; 1897, Smith 
 v. Lake Shore & Mich. So. R., 114 Mich. 460. 
 
 Rights to use streets pass: 1895, Africa v. Knoxville, 70 Fed. Rep. 729; right
 
 1006 COMPTON V. RAILWAY COMPANY. 287 
 
 to take property tinder eminent domain pass also: 1882, Toledo, etc., R. Co. 
 v. Dnnlap, 47 Mich. 456; 1888, Abbott v. N. Y., etc., R. Co., 145 Mass. 450; 
 so alao an exclusive right to furnish gas: 1885, New Orleans Gas Co. v. Louisi- 
 ana, 115 U. 8. 650. 
 
 An unexecuted power to consolidate is not a vested right, and hence would 
 not pass to a consolidated company: 1895, Pearsall v. Great Northern R., 161 
 U. 8. 646; 1896, Morrill v. Smith Co., 89 Tex. 529, 551 ; nor does the right to 
 fix railroad rates: 1895, St. Louis & S. F. R. Co. v. Gill, 156 U. S. 667. 
 
 As to exemptions from taxation, if the language of the consolidation statute 
 is ample to incfcde such privileges, and there is nothing to indicate a con- 
 trary intent, the tax exemption inures to the benefit of the new company, so 
 far as, but no farther than, the property acquired was exempt. 1850, Phila- 
 delphia, etc., R. Co. v. Maryland, 10 How. (51 U. S.) 376; 1872,Tomlineon v. 
 Branch, 15 Wall. (82 U. S.) 4bO; 1873, Delaware R. Tax, 16 Wall. (85 U. S.) 
 206; 1875, Central, etc., R. v. Georgia, 92 U. S. 665; 1876, Chesapeake & O. 
 R. Co. v. Virginia, 94 U. S. 718. 
 
 The later cases apply even a stricter rule, and the tax-exemption does not 
 pass unless the intention to do so is clearly expressed all presumptions be- 
 ing against it ; 1894, Keokuk & W. R. v. Missouri, 152 U. S. 301, supra, p. 989 ; 
 1895, Norfolk & W. R. Co. v. Pendleton, 156 U. S. 667; 1895, Mercantile Bank 
 v. Tennessee, 161 U. S. 161; 1898, Adams v. Yazoo & M. V. R. Co., 24 So. 
 Rep. 200 (Miss.) ; 1898, Citizens' Sav. Bk. v. Owensboro, 173 U. S.636; 1899, 
 The Kentucky Bank Cases, 174 U. S. 408, et seq. 
 
 (2) Contract rights, such as stock subscriptions, subscriptions in aid of the 
 purposes, rights to use patents, copyrights, etc., rights under indemnity bonds, 
 etc., held by constituent companies pass to the consolidated company : 
 
 Stock subscriptions: 1856, Sparrow v. E. & C. R., 7 Ind. 369; 1863, Bish 
 v. Johnson, 21 Ind. 299; 1875, Mansfield, etc., R. Co. v. Stout, 26 Ohio St. 
 24T ; 1891, Hamilton v. Clarion, etc., R. Co., 144 Pa. St. 34. 
 
 Patent rights: 1869, Lightner v. B & A. R., 1 Low. 338, Fed. Cas. 8343. 
 
 Subscriptions in aid of undertaking: 1876, Scotland Co. v. Thomas, 94 D. 
 8. 6*>2; 1878, Edwards v. People, 88 111. 340; 1879, Empire Tp. v. Darlington, 
 101 U. S. 87; 1883, Scott v. Hausheer, 94 Ind. 1 ; 1885, Marion Co. v. Center 
 Tp., 105 Ind. 422; 1888, Livingston Co. v. First Nat'l Bank, 128 U. S. 102, with 
 cases cited there; but see contra, 1872, New Jersey M. R. Co. v. Strait, 35 N. 
 J. L. 322; 1875, Harshman v. Bates Co., 92 U. S. 569; 1877, County of Bates 
 v. Winter, 97 U. 8. 83; 1878, Wagner v. Meety, 69 Mo. 150. 
 
 Indemnity bonds: 1892, Pennsylvania, etc., R. v. Harkins, 149 Pa. St. 121. 
 
 ( 3 ) Property rights : 
 
 Lands vest, by virtue of the act of consolidation, in the new company with- 
 out further conveyance: 1861, N. Y. Cent. R. Co. v. Saratoga, etc., Co.. 39 
 Barb. (N. Y.) 289; 1888, Georgia Pac. R. Co. v. Wilks, 86 Ala. 478; 1888, Tar- 
 pey v. Deseret Salt Co. , 5 Utah 494; 1891, Cashman v, Brownlee, 128 Ind. 
 266; 1896, Day v. N. Y. S. & W. R. Co., 58 N. J. L. 677 ; 1900, Greene v. Wood- 
 land, etc., R. "Co., 62 Ohio St. 67, 56 N. E. Rep. 642. 
 
 Choses in action do also: 1863, Cumberland College v. Ish, 22 Cal. 641 ; 
 1865, State University of Vermont v. Baxter, 42 Vt. 99; 1868, Miller v. Lan- 
 caster, 45 Tenn. (5 Cold.) 514. 
 
 (4) Liabilities: 
 
 Contracts New company must perform those of old: 1868, Racine & M. R. 
 Co. v. Farmers' L. & T. Co., 49 111. 331 , 95 Am. Dec. 595 ; 1874, Western Union 
 R. Co. v. Smith, 75 111. 496; 1881, Sapping v. Little Rock, etc., Co., 37 Ark. 
 23; 1889, Union Pac. R. v. McAlpine, 129 TJ. R. 305; 1890, Day v. Worcester, 
 etc., R. Co., 151 Mass. 302; 1890, Jones v. Fitchburg R. Co., 123 N. Y. 502; 
 1890, Joy v. St. Louis, 138 U. 8. 1 ; 1892, Chicago & Ind. Coal Co. v. Hall, 135 
 Ind. 91/23 L. R. A. 231 ; 1896, Cumberland Valley R. Co. v. Gettysburg, etc., 
 Co., 177 Pa. St. 519. 
 
 But see: 1868, Tagart v. Northern Cent. R. Co., 29 Md. 557; 1873, Prouty 
 v. L. S. etc., R. Co., 52 N. Y. 363; 1874, City and County of San Francisco v. 
 Water-Works, 48 Cal. 493; 1899, Chase v. Mich. Tel. Co., 121 Mich. 631, 80 
 N. W. Rep. 717; 1900, Capital Traction Co. v. Offutt, 17 A pp. D. C. 292, 53 
 L. R. A. 390.
 
 288 POWER TO ACQUIRE REAL PROPERTY. lOO/ 
 
 Debts New company are liable for, to the extent of property received, and 
 where expressly assumed, are liable beyond the property received : 1863, 
 Eaton, etc., R. Co. v. Hunt, 20 Ind. 457; 1868, Indianapolis. C. & St. L R. Co. 
 v. Jones, 29 Ind. 4t>5, 95 Am. Dec. 654; 1869, Wright v. Milwaukee, etc., R. 
 Co., 25 Wis. 46; 1874, Bailey v. N. Y. C. R Co.. 89 U. 8. (22 Wall.) 604; 1875, 
 Meyer v. Johnson, 53 Ala. 237 ; 1881, Boardman v. L. 8. & M. 8. R., 84 N. Y. 
 157"; 1885, I'.rown v. Susquehanna Boom Co., 109 Pa. St. 57, 58 Am. Rep. 709; 
 1889, Louisville, N. A., etc., R. v. Snider, 117 Ind. 501, 3 L. R. A. 434; 1894, 
 Berrv v. Kansas, etc., R. Co., 52 Kan. 774, 39 Am. St. R. 381 ; 1895, Lang- 
 home v. Richmond R. Co., 91 Va. 369; 1897, In re Utica, etc., Co., 154 N. Y. 
 268; 1x97, Tompkins v. Augusta So. R. Co., 102 Ga. 436; 1899, U. S. Capsule 
 Co. v. Isaacs. 23 Ind. App. 533, 55 X. E. Rep. 832; 1899, Copp v. Colorado C. 
 & 1. Co., 60 N. Y. Supp. 293, 29 Miscl. R. 109. 
 
 Turts: New company is liable for the torts of the former constituent com- 
 panies: 1860, Bissell v. Michigan So. R , 2> N. Y. 258; 1873, Warren v. 
 Mobile, etc., R., 49 Ala. 582; 1874, Chicago, etc., R. v. Moffatt, 75 HI. 524; 
 1883, St. Louis, etc., R. Co. v. Marker, 41 Ark. 542; 1892, Louisville, etc., R. 
 Co. v. Summers, 131 Ind. 241; 1893, Berry v. Kansas C. F. & S. R., 52 Kan. 
 759, 39 Am. St. R. 371 ; 1895. Southern, etc., R. Co. v. Bonrkright, 70 Fed. 
 Rep. 442, 30 L. R. A. 823; 1895, Langhorne v. Richmond R. Co., 91 Va. 369. 
 
 But see contra, 189*, Von Cotzhansen v. Johns Mfg. Co., 100 Wis. 473, 76 
 N. W. Rep. 622; 1899, Chase v. Mich. Tel. Co., 121 Mich. 631, SON. W. 
 Rep. 717. 
 
 ARTICLE IV. ACQUIRE, HOLD AND ALIENATE PROPERTY. 
 
 Sec. 288. ( I ) Acquire and hold real property. 
 (A) By purchase: 
 ( a ) Presumptions. 
 
 STOCKTON SAVINGS BANK v. STAPLES. 1 
 
 1893. IN THE SUPREME COURT OF CALIFORNIA. 98 Cal. Rep. 
 
 189-193- 
 
 [Action by the bank to quiet title to land. Judgment was in favor 
 of the plaintiff, and defendants appealed therefrom. The bank 
 traced title through conveyances from one C. , and alleged that C. 
 had ousted the defendant, and he and his subsequent grantees had 
 maintained an open and notorious possession for the statutory period. 
 The immediate grantor of the bank was Mrs. Hudson.] 
 
 VAXCLIEF, C. * * * Appellants contend that the court erred 
 in overruling their objections to the introduction in evidence of the 
 deed from Mrs. Hudson to plaintiff. The ground of the objection 
 was that the plaintiff "was not shown to have the power to purchase, 
 hold, or receive said land, nor that said land was conveyed to it for 
 any of the purposes of the corporation." There was no evidence to 
 show for what purpose the corporation had been organized, or what 
 business it was conducting. The court found according to the alle- 
 gation of the complaint, not denied in the answer, that at all the times 
 
 1 Statement abridged, only part of opinion given.
 
 IOO8 LEAZURE V. HILLEGAS. 289 
 
 stated the plaintiff "was a corporation duly organized and incorporated 
 under and by virtue of the laws of the state of California, and having 
 its office and principal place of business in the city of Stockton, county 
 of San Joaquin, state of California." 
 
 Under these circumstances I think it must be presumed (as against 
 the defendants, at least) that the corporation had power to purchase 
 and hold the land. (Natoma Water & M. Co. v. Clarkin, 14 Cal. 
 544; Evans v. Bailey, 66 Cal. 112; Hagar v. Board of Supervisors, 
 47 Cal. 222; People v. La Rue, 67 Cal. 526; Spelling on Private 
 Corporation, 203, 206.) It does not appear under what statute or 
 for what purpose the plaintiff was incorporated, nor what business it 
 was engaged in, nor for what purpose the property was purchased or 
 used. In answer to a similar objection in People v. La Rue, 67 Cal. 
 526, it was said: "If there was anything in its charter or the business 
 in which it was engaged, or in the law under which it was organized, 
 in any manner abridging its right to hold land, it does not appear of 
 record, hence we deem the objection untenable." * * * 
 
 Affirmed. 
 
 Note: In the absence of any showing of any kind to the contrary there is a 
 presumption that purchases of land by a corporation are for a valid purpose, 
 and the contrary must be shown by the one alleging it. 1827, Ex parte Peru 
 Iron Co., 7 Conn. (N. Y.) 540; 1859, Chautauqua Co. Bank v. Risley, 19 N. 
 Y. 369, 75 Am. Dec. 347; 1863, Regents of Univ. v. Detroit Y. M. Soc., 12 
 Mich. 138; 1871, Myers v. Croft, 13 Wall. (80 II. S.) 291; 1874, Hagar v. Yolo 
 Co., 47 Cal. 222; 1874, Yates v. Van De Bogert, 56 N. Y. 526; 1885, People v. 
 La Rue, 67 Cal. 526; 1893, Connecticut, etc., Ins. Co. v. Smith, 117 Mo. 261, 
 38 Am. St. Rep. 656. 
 
 Sec. 289. Same. 
 
 () Extent of power to purchase and hold. 
 LEAZURE v. HILLEGAS. 
 
 1821. IN THE SUPREME COURT OF PENNSYLVANIA. 7 Serg. & R. 
 
 (P a -) 3 I 3-3 2 3- 
 
 Error to the common pleas of Bedford county. 
 
 Frederick Hillegas, the plaintiff below (the defendant in error) T 
 claimed the land in dispute, under a warrant and survey to Thomas 
 Holt, who conveyed to George Armstrong, who conveyed to William 
 Henry, who conveyed to the Bank of North America, who conveyed 
 to the plaintiff. On the trial of the cause, four bills of exceptions to 
 evidence were taken by the defendant below. * * * 
 
 The third exception was to the admission of a deed from the Bank 
 of North America to James Ross, to which there were two objections: 
 1st. That there was no evidence of the seal of the corporation. 2d. 
 That the corporation was incapable of receiving a conveyance of land 
 otherwise than by mortgage, and therefore had no estate which could 
 be conveyed.
 
 289 POWER TO ACQUIRE REAL PROPERTY. IOO9 
 
 [After holding the seal of the corporation had not been proved and 
 for that reason the deed should not have been admitted, proceeds:] 
 
 TILGHMAN, C. J. * * * But the great points in this cause are, 
 the capacity of the bank to take the land conveyed by William Henry's 
 deed, and afterwards to convey the same to James Ross. There is no 
 doubt that a corporation must be governed by the charter from which 
 it derives its existence. It can do no act nor take any estate contrary 
 to its charter. If, therefore, it can be shown, that the Bank of North 
 America is forbidden by its charter, either to take or to convey , the 
 land contained in William Henry's deed, the plaintiff's action can not 
 be supported. By the third section of the act of incorporation (i7th 
 of March, 1787, 2 Sm. L. 399), the bank is made capable "to have, 
 hold, purchase, receive, possess, enjoy and retain lands, rents, tene- 
 ments, goods, chattels and effects of whatsoever kind, nature or qual- 
 ity, to the amount of two millions of dollars and no more, and also to 
 sell, grant, etc., the same lands, etc. Provided, nevertheless, that 
 such lands and tenements, which the said corporation are hereby en- 
 abled to purchase and hold, shall only extend to such lot and lots o 
 ground, and convenient buildings, and improvements thereon erected 
 or to be erected, which they may find necessary and proper for carry- 
 ing on the business of the said bank, and shall actually occupy for 
 that purpose, and to such lands and tenements 'which are or may be 
 bona fide mortgaged to them as securities for their debts.'" It is re- 
 markable that with regard to the holding of lands, the charter of this 
 bank is more restricted than that of any other bank in the state, for all 
 the others are enabled to hold, not only the lands which have been 
 bona fide mortgaged to them by way of security for debts, but also 
 those "which may be conveyed to them in satisfaction of debts pre- 
 viously contracted in the course of their business, or purchased at sales 
 upon judgments which shall have been obtained for such debts." 
 This difference of restriction must have arisen from the extreme jeal- 
 ousy of monied corporations which pervaded the mind of the legisla- 
 ture when the Bank of North America was incorporated. It never 
 could have been intended to place that bank on a worse footing than 
 others, for it was the only one which risked its capital on a field alto- 
 gether untried in America, and which had the merit of rendering es- 
 sential service to the United States during the war of the revolution. 
 It would be improper, therefore, to carry the restriction, by construc- 
 tion, farther than the words of the law plainly import. The restric- 
 tion is, that the bank shall not purchase and hold. Purchasing and 
 holding are very different things, and the consequences of each are 
 very different. If the words had been that the bank should neither 
 purchase nor hold, then it could have done neither one nor the other. 
 But, although purchasing and holding might have been thought 
 dangerous, because of the power which it would have given the bank 
 to bring too much land into mortmain, yet to purchase, subject to the 
 statutes of mortmain, which authorized the commonwealth to appro- 
 priate the land to its own use, could be attended with no danger. 
 64 WIL. CASES.
 
 IOIO LEAZURE V. HILLEGAS. 289 
 
 This construction would satisfy the jealous policy of the legislature, 
 preserve the community from the danger of too great a mass of real 
 property held in mortmain, and at the same time put in the power of 
 the commonwealth to act towards the bank as justice might seem to 
 require. This is a consideration of no small importance ; for when 
 the directors of the bank accepted from William Henry a conveyance 
 of his land at a fair price in payment of a debt bonajide due, it would 
 be hard to presume that they knew they were acting in violation of 
 their charter. But granting that the restriction in the charter did not 
 extend to the simple act of purchasing, it may be asked, whence did 
 the corporation derive the right to purchase, and what would be the 
 situation of land purchased without a capacity of holding? The an- 
 swer is, that a corporation has, from its nature, a right to purchase 
 lands, though the charter contains no license to that purpose. And 
 in this respect the statutes of mortmain have not altered the law, ex- 
 cept in case of superstitious uses. But since those statutes, it is nec- 
 essary, in order to enable a corporation to retain lands which it has 
 purchased, to have a license for that purpose; otherwise, in England, 
 the next lord of the fee may enter within a year after the alienation, 
 and if he do not, then the next immediate lord, from time to time, 
 has half a year to enter, and for default of all the mesne lords, 
 the king takes the land so aliened, forever. That this is the law ap- 
 pears from the following authorities: 2 Black. Comm., 268, 269; 
 Co. Lit., 2; 6 Vin. Ab., 265(0. pi. 2.) ; 6 Vin. Ab., 266, pi. 8; Jenk. 
 Cent., 270; 3 Com. Dig., 399 (F. 10) ; 3 Com. Dig., 401 (F. 15); 
 i Rol. Ab., 513; i, 35; 10 Co. 30. But in Pennsylvania, where 
 there are no mesne lords, the right would accrue immediately to the 
 commonwealth. It has been objected, however, that according to 
 the report of the judges of this court, made on the i4th of December, 
 1808, in pursuance of an act of assembly requiring them to make a 
 report of the English statutes which are in force in the common- 
 wealth, etc., it appears that all conveyances of land to a corporation, 
 without license, are absolutely void. I will consider this objection. 
 The judges reported the following statutes of mortmain, "7 Ed. I. 
 (Stat. 2); 13 Ed. I, ch. 32; 15 Rich. II, ch. 5, and 23 Hen. VIII, 
 ch. 10; which are in part inapplicable to this country, and in part ap- 
 plicable and in force. They are so far in force, that all conveyances 
 by deed or will, of lands, tenements or hereditaments, made to a body 
 corporate, are void unless sanctioned by charter or act of assembly. 
 So, also, are all such conveyances void, made either to an individual 
 or to any number of persons associated, but not incorporated, if the 
 said conveyances are for uses or purposes of a superstitious nature, 
 and not calculated to promote objects of charity or utility." 
 
 I have quoted the words of the report, and it is evident that the 
 judges could have no intent, nor had they power to make any addi- 
 tion to the statutes, or in any manner to alter them. Now by reference 
 to the statutes it will appear that in all of them except the 23 Hen. 
 VIII, ch. 10, the conveyance is not absolutely void, but the estate 
 passes to the corporation, subject, as before mentioned, to the right
 
 289 POWER TO ACQUIRE REAL PROPERTY. IOII 
 
 of the several mesne lords, and in their default, of the king, to enter 
 and hold in fee. But by the statute of 23 Hen. VIII, ch. 10 (which 
 has been determined to extend to superstitious uses only: see 2 Black 
 Com., 273; i Co. Rep., 24), uses and trusts made and contrived in 
 favor of religious persons, or any bodies corporate, for more than 
 twenty years, shall be utterly void. Now the meaning of the report 
 of the judges is, that, according to the statute cited by them, convey- 
 ances to superstitious uses are absolutely void, and conveyances to 
 corporations, to uses not superstitious, are so far void that those cor- 
 porations shall have no capacity to hold the estates for their own ben- 
 efit, but subject to the right of the commonwealth, who may appro- 
 priate them to its own use at pleasure ; in other words, that such con- 
 veyances have no validity for the purpose of enabling the corporation 
 to hold in mortmain. But to support the plaintiff's title, it must be 
 shown that the corporation had power, not only to take by purchase, 
 but to aliene. In this respect I consider a corporation in the situation 
 of an alien who has power to take but not to hold. That an alien 
 may take by purchase (though not by descent), has been settled from 
 the earliest times. It is so laid down in Co. Lit. 2, and I believe has 
 never been questioned. Neither has it been questioned that the land is 
 subject to forfeiture, and may be seized for the king after office found. 
 But it has been questioned what is the right of the alien before office 
 found for the king. Without reference to English cases, which leave 
 the matter in doubt, we have the highest authority in our ow,n coun- 
 try for saying that until some act done by the commonwealth accord- 
 ing to its own laws, to vest the estate in itself, it remains in the alien, 
 who may convey it to a purchaser, but he can convey no estate which 
 is not defeasible by the commonwealth. This principle was asserted 
 by Judge Story, who delivered the opinion of the supreme court of 
 the United States in the case of Fairfax's Devisee v. Hunter's Lessee, 
 7 Cranch 603 ; and this was the opinion of the supreme court of Mas- 
 sachusetts, in the case of Sheaffe v. O'Neil, i Mass. Rep. 256, cited 
 by Judge Story. 
 
 It is reasonable in theory, and can have no ill effect in practice, 
 that he who has a defeasible estate may convey a defeasible estate. 
 Provided the right of the commonwealth to defeat the estate granted 
 by the alien remains entire, it is immaterial who holds the land until 
 that right be prosecuted. Supposing, then, that the cases of the alien 
 and the corporation be similar (and I see not how they can be dis- 
 tinguished), it follows that the deed from the Bank of North Amer- 
 ica to James Ross conveyed a fee-simple, defeasible by the common- 
 wealth. * * * 
 
 [Reversed on the ground that the deed was admitted without proof 
 of the corporate seal.] 
 
 Note. See note, 291.-
 
 1012 CASE V. KELLY ET AL ; 290 
 
 Sec. 290. Same. 
 
 CASE v. KELLY ET AL. ? 
 
 1890. IN THE SUPREME COURT OF THE UNITED STATES. 133 
 
 U. S. Rep. 21. 
 
 [The Green Bay and Minnesota Railroad Company being in the 
 hands of a receiver, namely, Timothy Case, in the circuit court of 
 the United States, in a suit by the Farmers' Loan and Trust Company 
 to foreclose a mortgage on said railroad, said receiver was directed 
 by the court to take possession of all the property, real and personal, 
 of said company, with authority to bring suits, in the name of the 
 railroad company. Under this order, Mr. Case, as receiver, brought 
 the present suit, stating that he sues in behalf of said railroad com- 
 pany, and as receiver, the defendants Kelly, Ketchum, and Hiles, 
 who were officers of the railroad company during its period of con- 
 struction, and who as alleged had procured numerous donations of 
 land from citizens who were interested in the construction of the road, 
 along its line, intended to be for the use and benefit of the railroad 
 company, and to assist it in such construction. The fundamental alle- 
 gation of the bill is that these defendants, representing to the persons 
 who made the donations that they were officers of the road, and solic- 
 iting these grants for the benefit of the road, took the conveyances to 
 themselves individually; that they did this in a fraudulent manner, by 
 making the grantors in the conveyances believe that they, as officers 
 of the company, could receive the conveyances for the benefit of the 
 road, and that either the grantors did not really know to whom the 
 conveyances were made, or were induced to believe that when made 
 the grantees held the lands as a trust for the benefit of the road. 
 These defendants not recognizing this trust, and the conveyances on 
 their faces being merely conveyances to the individuals, Ketchum, 
 Kelly, and Hiles, who now refuse to convey to the company, or to 
 admit its right to the lands, this suit is brought to have a declaration 
 of the trust made by the court, and a decree ordering conveyances by 
 the defendants of the land to the corporation. It is further alleged 
 that the mortgage in process of foreclosure in the court under which 
 Case is acting as receiver covered all the lands of the corporation, 
 and would cover these lands, if the title of the corporation in them 
 was established. The defendants, Kelly, Ketchum, and Hiles, filed 
 answers, in which they denied all fraud or deception, denied that they 
 held the lands in trust for the railroad company, and denied the right 
 of plaintiff to any relief. Replications were filed to the answers. 
 The case was put at issue. The circuit court held that only such 
 lands as were necessary and proper for the immediate use of the road 
 could be recovered in this suit.] 
 
 MILLER, J. * * * The principal question suggested by this 
 appeal is whether the complainant, as representing the railroad com- 
 
 1 Statement abridged, only part of opinion given.
 
 2QO POWER TO ACQUIRE REAL PROPERTY. IO13 
 
 pany, can maintain a suit for these lands; that is to say, whether the 
 company was endowed by the legislature of Wisconsin with a capac- 
 ity to receive an indefinite quantity of lands, with no limitation upon 
 their use, or upon their sale, or whether they were limited to the lands 
 necessary to such uses as were appropriate to the operations of a rail- 
 road. It is not pretended that there is any general statute of the state 
 of Wisconsin which authorizes either this company or any other cor- 
 poration to purchase and hold lands indefinitely, as an individual 
 could do, without regard to the uses to be made of such real estate. 
 The charter of the company, approved April 12, 1866 (chapter 540), 
 authorizes it to acquire real estate, namely, the fee-simple in lands, 
 tenements, and easements, for their legitimate use for railroad pur- 
 poses. It is thus authorized to take lands 100 feet in width for right 
 of way, and also such as is needed for depot buildings, stopping- 
 stages, station-houses, freight-houses, warehouses, engine-houses, ma- 
 chine-shops, factories, and for purposes connected with the use and 
 management of the railroad. This enumeration of the purposes for 
 which the corporation could acquire title to real estate must neces- 
 sarily be held exclusive of all other purposes, and, as the court said 
 at the time of making its interlocutory decree, "it was not authorized 
 by its charter to take lands for speculative or farming purposes." It 
 must be held, therefore, that there was no authority, under the laws 
 of Wisconsin, for this corporation to receive an indefinite quantity of 
 lands, whether by purchase or gift, to be converted into money or 
 held for any other purpose than those^ mentioned in its act of incorpo- 
 ration. 
 
 To this view of the subject, counsel urges several objections. The 
 first of these which we will notice is that the charter of the corporation 
 is a private act, of which the court can not take judicial notice, and 
 that, as it was not pleaded nor offered in evidence, nor otherwise 
 brought to the attention of the court, it could not be the foundation of 
 its judgment. To this there are two sufficient answers. The first of 
 which is that, if the statute creating this corporation gave it no power 
 to receive and hold lands in the manner we have mentioned, then it 
 had no such power by virtue of any law of the state of Wisconsin; 
 for a corporation, in order to be entitled to buy and sell, to receive 
 and hold, the title to real estate, must have some statutory authority 
 of the state in which such lands lie to enable it to do so, and the ab- 
 sence of such provision in the law of its incorporation does not create 
 any general statute which authorizes any such right. 
 
 Another answer is that in the charter of the railroad company itself 
 (Laws Wis. 1866, ch. 540, 14) it is expressby enacted that "this 
 act is hereby declared to be a public act, and shall take effect, and be 
 in force, from and after its passage and publication." To this it is 
 replied by counsel for appellant that the statute of Wisconsin can not 
 make that a public law which, in its essential nature, is a private law. 
 However this may be, we do not doubt the authority of the legislature 
 of a state to enact that after the passage and publication of one of its 
 statutes the courts of the state shall be bound to take judicial notice
 
 IOI4 COMMONWEALTH V. N. Y., ETC., R. CO. ET AL. 29 I 
 
 of it, without its being pleaded or proven before them. This rule, 
 thus prescribed for the government of the courts of the states, must be 
 binding in proceedings in federal courts in the same state. * * * 
 
 It is next objected to the principle adopted by the court that the 
 limitation upon the power of the corporation to receive land is one 
 which concerns the state alone, and the title to such lands in a corpo- 
 ration can only be defeated by a proceeding, in the nature of a qrio 
 warranto, on behalf of the state. The case of Bank v. Matthews, 98 
 U. S. 621, is strenuously relied on to support this view. We need 
 not stop here to inquire whether this company can hold title to lands, 
 which it is impliedly forbidden to do by its charter, because the case 
 before us is not one in which the title to the lands in question has ever 
 been vested in the railroad company, or attempted to be so vested. 
 The railroad company is plaintiff in this action, and is seeking to ob- 
 tain the title to such lands. It has no authority by the statute to receive 
 such title, and to own such lands; and the question here is. not whether 
 the courts would deprive it of such lands, if they had been conveyed 
 to it, but whether they will aid it to violate the law, and obtain a title 
 which it has no power to hold. We think the questions are very dif- 
 ferent ones, and that, while a court might hesitate to declare the title 
 to lands received already, and in the possession and ownership of the 
 company, void, on the principle that they had no authority to take 
 such lands, it is very clear that it will not make itself the active agent, 
 in behalf of the company, in violating the law, and enabling the com- 
 pany to do that which the law forbids. * * * 
 
 We are urged to consider that if this decree is affirmed, dismissing 
 the bill of the railroad company, the defendants will be left in the 
 possession of property fraudulently acquired, of considerable value, 
 for which they gave no consideration. The answer to this is that 
 such question can not be raised by the plaintiff in this case, because, 
 having no right to take the property, it is not injured by a decree of 
 the court which fails to grant such right. The other questions must 
 be between the defendants in this case and those from whom they took 
 deeds of conveyance, or such other parties, public or private, as may 
 show that they have an interest in the controversy. The decree of the 
 circuit court is affirmed. 
 
 Note. See note, 291. 
 
 Sec. 291. (c) Consequences of ultra vires purchase. 
 
 COMMONWEALTH v. NEW YORK, ETC., RAILROAD CO. ET AL. 1 
 
 1890. IN THE SUPREME COURT OF PENNSYLVANIA. 132 Pa. St. 
 
 Rep. 59161 1. 
 
 PAXSON, C. J. This was an information in the nature of a quo 
 warranto, filed by the attorney-general, the object of which was to 
 
 1 Statement abridged ; only that part of the opinion relating to the single 
 point is given.
 
 291 POWER TO ACQUIRE REAL PROPERTY. 101$ 
 
 escheat to the commonwealth certain lands in Elk county, alleged to 
 be held by or for the defendant railroad company. * * * 
 
 It was alleged, in the first place, by the commonwealth that the 
 railroad company had violated section 5, article xvii of the constitu- 
 tion of this state. The said section is as follows: 
 
 "No incorporated company doing the business of a common carrier 
 shall directly or indirectly prosecute or engage in mining or manu- 
 facturing articles for transportation over its works; nor shall such 
 company, directly or indirectly, engage in any other business than that 
 of common carriers, or hold or acquire lands, freehold or leasehold, 
 directly or indirectly, except such as shall be necessary for carrying 
 on its business; but any mining or manufacturing company may carry 
 the products of its mines and manufactories on its railroad or canal, 
 not exceeding fifty miles in length." 
 
 It will be noticed that this clause in the constitution affixes no pen- 
 alty for its violation. It is conceded that, for a violation of the or- 
 ganic law, a Pennsylvania corporation, or a foreign corporation having 
 or exercising corporate franchises within this commonwealth, would 
 forfeit such franchises. This, however, would not involve an escheat 
 or confiscation of its property. * * * 
 
 [Holding also that under a statute prohibiting "the acquisition or 
 holding by a corporation of any real estate, either directly or through 
 a trustee or other device whatsoever," under penalty of escheat to the 
 state, lands held by a mining company authorized to hold, were not 
 subject to escheat because an unlicensed railroad company had pur- 
 chased and owned the stock of the mining company.] 
 
 Note. Acquisition of property by corporation : 
 
 1. Common law: "To enable it to answer the purposes of its creation 
 every corporation aggregate has incidentally, at common law, a right to take, 
 hold and transmit in succession, property, real and personal, to an unlimited 
 extent or amount." Angell and Ames Corporations, 145; or "at common 
 law corporations had the same capacity to take and hold lands as a private 
 person prior to Magna Charta (1215). 1 Kyd Corp., 79, citing 19 Hen. VI, 
 44; see note 2, Elliott Corporations, 160. See also Littleton's Reports, 49, 
 112, 114; Coke's Littleton, 2a, 44a, 3006; 10 Coke's Reports, 306; Comyns' 
 Digest, Franchise F., 11, 15, 16 and 17; First Parish in Sutton v. Cole, 3 Pick. 
 (Mass.), 232, 239; 2 Kent's Comm., *281; 1 Kyd Corp., 76, 78,108, 115; 
 Lathrop v. Commercial Bank, 8 Dana (Ky.) 114, 33 Am. Dec. 481. 
 
 2. Statutes of mortmain: "But a corporation, sole or aggregate, ecclesiastical 
 or lay, can not purchase or take lands and tenements, without license to take 
 in mortmain." Comyns' Digest, Franchises F., 17. These were 9 Hen. Ill, 
 c. 36 (Magna Charta); 7 Ed. I, c. 13; ISEd.l.c. 32; 15 Rich. II, c. 5; 23 Hen. 
 VIII, c. 10, and 9 Geo. II, c. 36. "By these, alienation to corporations with- 
 out license in mortmain from the crown, and a license also from the lord, if 
 any, from whom the land was held, was made a cause of forfeiture. * * 
 Alienation in mortmain was not void, but voidable," and was good if the 
 right of the crown or lord to re-enter was not exercised. The present law of 
 England is contained in 51 and 52 Viet., c. 42, and 54 ami 55 Viet., c. 73, :md 
 provides that "land shall not he assured to, or for the benefit of, or acquired 
 by, or on behalf of, any corporation in mortmain otherwise than under the au- 
 thority of a license from the crown, or of a statute for the time being in force ; 
 and if any land is so assured the land shall be forfeited to the crown, who 
 may enter and hold the land." 9 Eng. Encyc. of Law, pp. 1-2. But t!n>st> 
 provisions do not apply to joint stock companies incorporated under the com-
 
 IOl6 COMMONWEALTH V. NEW YORK, ETC., R. CO. 2QI 
 
 parries acts of 1862-1890, nor to the trades-union acts of 1861. 1 Chitty's 
 Stat. Charities, p. 61, note (a). 
 
 These statutes are not generally in force in the United States : 1839, Lath- 
 rop v. Com. Bank, 8 Dana (Ky.) 114, 33 Am. Dec. 481; 1846, Rivanna Nav. 
 Co. v. Dawson's, 3 Gratt. (Va.) 19,46 Am. Dec. 183; 1868, Page v. Heineberg, 
 40 Vt. 81, 94 Am. Dec. 378; 1886, Mallett v. Simpson, 94 N. C. 37, 55 Am. 
 Rep. 594; 1896, Fayette Land Co. v. L. & N. R. Co., 93 Va. 274. But they 
 are partially so in Pennsylvania, 1821, Leazure v. Hillegas, 7 S. & R. (Pa.) 
 313, 320. 
 
 But many states have statutes forbidding religious and charitable corpora- 
 tions from holding more than a certain amount of land. See 1 Stimson's Stat- 
 ute Law, 403, 1446, 2618. 
 
 3. But in the absence of statutory provisions, it is now generally held that 
 corporations have the right to purchase and hold such property , and such only, both 
 in kind and amount, as is necessary or convenient to carry out their legitimate 
 corporate purposes. 
 
 Heal property: 1825, First Parish in Button v. Cole, 20 Mass. (3 Pick.) 232; 
 1842, Bank of 'Mich. v. Niles, Walk. (Mich.) 99; 1844, Bank of Mich. v. Niles, 
 1 Doug. (Mich.) 401; 1847, Chautauqua Co. Bank v. Risley, 4 Denio (N. Y.) 
 480; 1846, Rivanna Nav. Co. v. Dawson's, 3 Gratt. (Va.) 19, 46 Am. Dec. 183; 
 1852, State (C. & A. R., etc., Co.) v. Commrs., 23 N. J. L. 510, 57 Am. Dec. 
 409; 1855, New Jersey R. & T. Co. v. Newark, 25 N. J. L. 315; 1868, Occum. 
 Co. v. A. & W., etc., Co., 34 Conn. 529; 1870, Pac. R. v. Seeley, 45 Mo. 212, 
 100 Am. Dec. 369; 1872, Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243; 
 1873, Carroll v. City of E. St. Louis, 67 111. 568; 1885, Wilks v. Georgia P. R. 
 Co., 79 Ala. 180; 1890, Case v. Kelly, 133 U. S. 21, supra, p. 1012; 1898, People 
 v. Pullman Car Co., 175 111. 125, supra, p. 926; 1899, First M. E. Church v. 
 Dixon, 178 111. 260. 
 
 In most of the states there are statutory provisions to the effect that corpo- 
 rations may own such real estate as shall be necessary, proper, convenient, 
 or required. Others make no qualification, while still others say to any 
 amount (Miss.), or as an individual (Iowa, Ky.). See 2 Stimson's Stat. Law, 
 8204. 
 
 In Hayward v. Davidson, 41 Ind. 212 (1872), it is said : "With reference to 
 their power to take and hold real estate, corporations may be classified as 
 follows: 
 
 "First. Those whose charters or laws of creation forbid that they should 
 acquire and hold real estate. Such corporations can not take and hold real 
 estate ; and a deed or devise to such corporation can pass no title. (But see 
 infra, 4 (e}.) 
 
 "Second. Those whose charters, or laws of creation, are silent as to whether 
 they may or may not acquire and hold real estate. In such a case, if the ob- 
 jects for which the corporation is formed can not be accomplished without 
 acquiring and holding real estate, the power so to do will be implied. 
 
 "Third. Those whose charters, or laws of creation, authorize them, in some 
 cases, and for some purpose, to take and hold the title to real estate. 
 
 "Fourth. Those whose charters, or laws of creation, confer upon them a gen- 
 eral power to acquire and hold real estate. Corporations thus empowered 
 may take and hold real estate, as freely, and fully, and perfectly as natural 
 persons may take and hold. As to this point see, 1895, Market St. R. v. Hell- 
 man, 109 Gal. 571." 
 
 Personal property , see note 298, infra. 
 
 4. Who can complain of an ultra vires holding? fa) General rule, only 
 the state can complain after the conveyance is executed: 1820, Silver Lake 
 Bank v. North, 4 Johns. Ch. (N. Y.) 370; 1825, Banks v. Poitiaux, 3 Rand. 
 (Va.) 136 ( purchaser from corporation) ; 1840, Runyan v. Coster, 14 Pet. (39 
 U. S.) 122 (ejectment by party tracing title through corporation) ; 1848, Bar- 
 row v. Turnpike Co., 9 Humph. (28 Tenn.) 304 (vendor to corporation) ; 1853, 
 Riley v. Rochester, 9 N. Y. 64 (trespass upon land held by corporation) ; 1860, 
 Natoma, etc., Co.v. darken, 14 Oaf. 544 (suit for possession by corporation); 
 1860, Blunt v. Walker, 11 Wis. 334 (vendee of corp. gets good title) ; 1873,
 
 29! POWER TO ACQUIRE REAL PROPERTY. IOI7 
 
 Wash v. Barton, 24 Ohio St. 28 (vendee of corp. gets good title) ; 1874, Hough 
 v. Cook Co. L., etc., Co., 73 111. 23, 24 Am. Rep. 230 (grantor to corporation 
 can not complain); 1878, National Bank v. Matthews, 98 U. S. 621; 1880, 
 Bank v. AVhitney, 103 U. S. 99; 1881, Davis v. Old Colony R., 131 Mass. 258, 
 273; 1882, Jones v. Habersham, 107 U. S. 174; 1884, Alexander v. Tolleston 
 Club, 110 111. 65; 1886, Mallett v. Simpson, 94 N. C. 37; 1889, Fritts v. Pal- 
 mer, 132 U. S. 282 (vendee of corp. gets good title) ; 1889, Ragan v. McElroy, 
 98 Mo. 349 (grantor to corp. or his heirs can not complain); 1890, Long v. 
 Georgia P. R. Co., 91 Ala. 519 (grantor to corporation can not complain); 
 1891, Holmes & G. Mfg. Co. v. H. & W. M. Co., 127 N. Y. 252; 1891, Gilbert 
 v. Hole, 2 So. Dak. 164; 1892, Shelby v. Chicago, etc., R. Co., 143 111. 385 
 (grantor to corporation cannot complain); 1892, Willoughby v. Chicago J., 
 etc., Co., 50 N. J. Eq. 656; 1893, Connecticut, etc., Ins. Co. v. Smith, 117 Mo. 
 261, 38 Am. St. Rep. 656; 1894, Hanson v. Little Sisters, etc., 79 Md. 434, 32 
 L. R. A. 293; 1897, Farwell Co. v. Wolf, 96 Wis. 10, 65 Am. St. Rep. 22, 37 L. 
 R. A. 138; 1897, Henderson v. Virden Coal Co., 78 111. App. 437; 1897, In re 
 Stickneys' Will, 85 Md. 79, 60 Am. St. Rep. 308, 35 L. R. A. 693; 1897, Wa- 
 ter, etc., Co. v. Tenney, 24 Colo. 344; 1897, Cooney v. Booth, 169 111. 370; 1898, 
 South & N. A. R. Co. v. Highland Ave., etc., Co.", 119 Ala. 105; 1898, State v. 
 Elizabeth, 61 N. J. L. 411, 693; 39 Atl. Rep. 683, 906; 1898, Rogers v. Nash- 
 ville, etc., R. Co., 91 Fed. Rep. 299 (stockholder can not complain after con- 
 veyance executed) ; 1899, Ray v. Foster, Texas Civ. App. , 53 S. W. Rep. 
 54; 19_00, Chicago & A. R. Co. v. Keegan. 185 111. 70, 56 N. E. Rep. 1088. 
 
 (6) But if the contract or conveyance is not completed, an interested party 
 may object, in any suit by the corporation to perfect its title : 1870, Pacific R. 
 Co.'v. Seeley, 45 Mo. 212", 100 Am. Dec. 369; 1874, United States Trust Co. v. 
 Lee, 73 111. 142; 1875, Coleman v. San Rafael T. C., 49 Cal. 517; 1883, Thweatt 
 v. Bank, 81 Ky. 1; 1890, Case v. Kelly, 133 U. S. 21, supra, p. 1012; 1890, 
 Mitchell v. Cline, 84 Cal. 409; 1890, Houston Elec. Co. v. Simon, 20 Ore. 60, 
 10 L. R. A. 251; 1898, South & N. R. Co. v. Highland Ave., etc., 119 Ala. 
 105. 
 
 The courts are in conflict as to whether a corporation can maintain eject- 
 ment for lands which it is ultra vires for it to hold. 
 
 That it may, see 1860, Natoma, etc., Co. v. Clarkin, 14 Cal. 544; 1874, 
 Shewalter v. Pirner, 55 Mo. 218; 1886, Bone v. Del. & H. Canal Co., 18 W. N. 
 C. (Pa.) 125, 5 Atl. Rep. 751; 1887, East N. L., etc., Church v. Froislie, 37 
 Minn. 447. 
 
 That it can not, see: 1827, Quaker Soc. v. Dickenson, 1 Dev. L. (N. C.) 
 189; 1873, Carroll v. E. S. & L., 67 111. 668; 1879, Leasurev. Un. M. Co., 91 
 Pa. St. 491 ; 1882, St. Peters' Cath. C. v. German, 104 111. 440. 
 
 But the purchaser from the corporation can not raise the question in a suit 
 by the corporation vender for the specific performance by the purchaser: 
 1825, Banks v. Poitiaux, 3 Rand. (Va.) 136, 15 Am. D. 706; 1856, Old Colony 
 R. Co. v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394. 
 
 (c) A non-consenting shareholder who acts promptly may enjoin the con- 
 summation of the unexecuted ultra vires transaction: i826, Gray v. Chaplin, 
 2 Russ. (3 En'g. Ch.) 126; 1850, Bagshaw v. Eastern, etc., Ry., 19 L. J. Ch. 
 410; 1860, Simpson v. Westminster, etc., Co., 8 H. L. Cas. 712; 1869, Cen- 
 tral R. Co. v. Collins, 40 Ga. 582; 1871, Stewart v. Erie, etc., Co., 17 Minn. 
 372; 1877, Watson v. Harlem, etc., Co., 52 How. Pr. 348; 1882, Elkins v. 
 Camden and A. R. Co., 36 N. J. Eq. 5; 1890, Carson v. Iowa City G. L. C., 
 80 Iowa 638; 1891, Shaw v. Campbell Tp. Co., 12 Ky. L. Rep. 7iS), 15 S. \V. 
 Rep. 245; 1895, Byrne v. Schuyler, 65 Conn. 336, 28 L. R. A. 304; 1895, Pol- 
 lock v. Farmers' L. & T. Co., 157 U. S. 429. 
 
 Although it is sometimes said that if the ttUra vires transaction is com- 
 pletely executed, the non-consenting shareholder can not complain (and 
 especially if he fails to act promptly): 1879, Terry v. Eagle Lock Co., 47 
 Conn. 141, 161; 1892, Willoughby v. Chicago J., etc., Co., 50 N. J. Eq. 565; 
 1896, Jefferson Co. Sav. Bank v. Francis, 115 Ala. 317; 1898, Rogers v. Nash- 
 ville, etc., R. Co., 91 Fed. Rep. 299 on 317; 1900, City of Spokane v. Amster- 
 damsch (Wash.), 60 Pac. Rep. 141. Yet the better statement is that equity
 
 IOl8 COMMONWEALTH V. NEW YORK, ETC., R. CO. 2Q2 
 
 will relieve an injured stockholder who acts promptly, from the effects of an 
 executed ultra vires transaction, even to the extent of setting it aside, if in the 
 meantime no superior equity has intervened, nor the rights of innocent third 
 parties attached: 18G2, March v. Eastern R. Co., 43 N. H. 515; 1874, Hough 
 v. Cook Co. L. Co., 73 111. 23, 24 Am. R. 230; 1887, Chicago v. Cameron, 120 
 111. 447, 458; 1890, Ashton v. Dashaway Assn., 84 Cal. 6J ; 1899, Harding v. 
 Glucose Co., 182 111. 551, 55 N. E. Rep/577. 
 
 (d) Unless there is a statute making the conveyance void, and providing 
 for an escheat to the state, or unless the mortmain statutes are in force, the 
 state's complaint is limited to a forfeiture of the charter of the corporation, 
 and not a forfeiture of the property obtained by the ultra vires transaction: 
 1825, The Banks v. Poitiaux, 3 Rand. (Va.) 136, 142, 15 Am. Dec. 706, 707; 
 1873, Walsh v. Barton, 24 Ohio St. 28, 42; 1875, Edwards v. Fairbanks, etc., 
 27 La. Ann. 449, 450; 1878, National Bank v. Matthews, 98 U. S. 621, on 629; 
 1880, Bank v. Whitney, 103 U. S. 99; 1888, In re McGraw, 111 N. Y. 66, 96; 
 
 1890, Comw. v. N. Y., etc., R., 132 Pa. St. 591, supra ; 1894, Lancaster v. A. 
 I. Co., 140 N. Y. 576, 586; 1896, Fayette Land Co. v. Louisville, etc., Co., 93 
 Va. 274, 291, 24 S. E. Rep. 1016. 
 
 It is often said, however (obiter dictum, we think), that the conveyance is 
 "valid until assailed by the state in a direct proceeding for that purpose" 
 (1886, Mallet v. Simpson, 94 N. C. 37; 1899, Burden v. Burden, 159 N. Y. 287, 
 304), or until office found (1821, Leazure v. Hillegas, 7 S. & R. 313; Runyan 
 v. Coster, 14 Pet. (U. S.) 122, 131; 1887, Russell v. Texas, etc., R.Co.,68Tex. 
 646; 1890, Long v. Georgia Pac. R., 91 Ala. 519, 522), or the corporation may 
 hold subject to the state's right of escheat (1887, Hickory F. O. Co. v. Buffalo, 
 etc., Co., 32 Fed. Rep. 22). 
 
 (e) A prohibited purchase is sometimes said to be void, and no title passes: 
 1844, Bank v. Niles, 1 Doug. (Mich.) 401 ; 1873, Carroll v. E., St. L., etc., Co., 
 67 111. 568; 1882, St. Peter's Roman Cath. Cong. v. Germain, 104 111.440; 
 1898, State v. Hudson Land Co. ,18 Wash. 664,52 Pac. 574; yet there seems to 
 be no good reason why the rule above, that only the state could complain as 
 for a forfeiture of the charter, should not apply: 1875, Edwards v. Fairbanks, 
 27 La. Ann. 449, 450; 1890, Carlowv. Aultman, 28 Neb. 672,44 N. W. Rep. 873; 
 
 1891, Fisk v. Patten, 7 Utah 399; 1892, St. Louis R. v. Terre H. R., 145 U. S. 
 393. 
 
 See particularly upon this topic, article in 8 Harv. L. R. 15 (1894-5) by A. 
 M. Alger, upon consequences of illegal or ultra vires acquisition of real estate 
 by a corporation. 
 
 Minnesota (2 G. S. 769, 770, 4ld\ Pennsylvania (after five years, G. L. 
 1894, 42-53, Escheats), Wisconsin (Stat. 1889, ch. 96, 2200), Illinois (after 
 five years, R. S. 1895, ch. 32, 5, 5), Texas (R. S. 1895, art. 749d,e), North Car- 
 olina (after thirty years, Code 1883, 690) and perhaps others, provide for for- 
 feitures or escheats to the state, but Texas and Illinois provide for the sale of 
 land so escheated, and payment of the proceeds to the shareholders. Michi- 
 gan Const., Art. XV, 12, provides "No corporation shall hold any real estate, 
 for a longer period than ten years, except such as shall be actually occupied 
 by such corporation in the exercise of its franchise." 
 
 Sec. 292. Same. 
 
 (d) Estates that may be acquired. 
 
 (i) Fee simple. See Wilson v. Leary, 120 N. C. 90, supra, 
 P- 903. 
 
 Note. See note, supra, p. 911. 
 
 1 . The common law rule was that land reverted to the grantor upon disso- 
 lution of the corporation: 1848, Bingham v. Weiderwax, 1 N. Y. 509; 1875, 
 Mercer Acad. v. Rusk, 8 W. Va. 373. See,' supra, p. 891.
 
 293 POWER TO ACQUIRE REAL PROPERTY. 
 
 2 But at common law the corporation took a fee for purposes of aliena- 
 tion, though only an estate for the life of the corporation for purposes of en- 
 joyment: 1848, People v. Mauran, 5 Denio 389; 1852, Nicoll v. New York, 
 etc., It. Co., 12 Barb. 460; and this was true, though the corporation had 
 only a limited duration; 1854, Nicoll v. N. Y., etc., R. Co., 12 N. Y. 121. 
 
 3. Finally it has been settled that a business corporation, though of limited 
 duration, takes a fee for enjoyment, or rather for disposition as a part of the 
 assets at dissolution, without reverter: 1872, Heath v. Bannore, 50 N. Y. 302; 
 1888, People v. O'Brien, 111 N. Y. 1, 7 Am. St. Rep. 684, and note, infra, p. 1426; 
 but the common law rule yet obtains as to mutual issurance and charitable or 
 non-stock corporations. See, supra, 256, 257, and note. 
 
 4. A grant of a freehold without words of inheritance, perpetuity or suc- 
 cession will pass a fee: 1836, Union Canal Co. v. Young, 1 Whart. iPa.) 410, 
 30 Am. Dec. 212; 1839, Trustees of Caledonia, etc., v. Burt, 11 Vt. 632; 1861, 
 Cong. Soc. v. Stark, 34 Vt. 243; 1864, Erie R. Co. v. State, 31 N. J. L. 531, 86 
 Am. Dec. 226; 1867, Wilcox v. Wheeler, 47 N. H. 488; 1868, Page v. Heine- 
 berg, 40 Vt. 81, 94 Am. Dec. 378; 1885, Asherille Div. v. Aston, 92 N. C.578. 
 
 Sec. 293. Same. / 
 
 (2) Estates in common and joint tenancy. 
 
 DE WITT ET AL. v. THE CITY OF SAN FRANCISCO. 1 
 
 1852. IN THE SUPREME COURT OF CALIFORNIA. 2 California Re- 
 ports 289-304. 
 
 [Appeal from district court denying a motion to dissolve an in- 
 junction restraining defendants from completing a contemplated pur- 
 chase of certain land by the city of San Francisco and the county of 
 San Francisco, for the use of both corporations.] 
 
 WELLS, Justice. * * * The next objection advanced, and which is 
 said to be fatal to the power claimed by the appellants, is, that the cor- 
 poration of the county of San Francisco and the corporation of the 
 city of San Francisco can not hold lands as joint tenants, or tenants 
 in common. It is not pretended that these said corporations can hold 
 as joint tenants. Joint tenancy is a technical feudal estate, founded, 
 like the laws of primogeniture, on the principle of the aggregation of 
 landed estates in the hands of a few, and opposed to their division 
 among many persons. For the creation of a joint tenancy, four uni- 
 ties are required, namely, unity of interest, unity of title, unity of 
 time, unity of possession. I Cruise's Digest (by Greenleaf), 355, 
 ii ; 2 Crabb's Real Prop., 2303. But the distinguishing incident 
 is a right of survivorship, i Cruise, 359, 27; 2 Crabb's Real Prop., 
 2306. 
 
 Two corporations can not hold as joint tenants, because two of the 
 essential unities are wanting, namely, of the same capacity and title. 
 i Cruise, 362, 39. Nor can they hold as joint tenants for another 
 reason : Being each perpetual there can be no survivorship between 
 them ; and this, as we have just seen, is the distinguishing incident of 
 
 1 Only that part of opinion of Wells, J., relating to estates in common and. 
 joint tenancy is given.
 
 IO2O DE WITT ET AL V. THE CITY OF SAN FRANCISCO. 294 
 
 this estate. Nor can a corporation hold lands as joint tenant with a 
 natural person, for there is no reciprocity of survivorship between 
 them. Angell and Ames Corporations, 150; i Kyd Corp., 72. 
 
 But a tenancy in common requires for its existence but one unity, 
 'namely, that of possession, i Cruise, 390, 252 Crabb's Real Prop., 
 627, 2316. If, therefore, a grant should be made to two persons, 
 which in its terms should imply a joint tenancy, but such an estate 
 could not vest, for the reason that some of the requisite unities were 
 wanting, the result would be the creation of a tenancy in common. 
 The rule of law is, that a grant shall not fail if there is a capacity to 
 take under it, and if the higher estate can not vest, the next estate 
 which is possible shall vest. This is an equitable rule which is made 
 to apply to all grants and devises. The appellants in this case pro- 
 pose to purchase the undivided one-half of the property known as the 
 Jenny Lind and Parker House, and the land upon which the same 
 stands, to be used as tenants in common with the city of San Fran- 
 cisco. But it is said that two incorporations can not hold lands as 
 tenants in common ; and the case of the New York and Sharon Canal 
 Company v. The Fulton Bank, y Wendell 412, is cited in the opinion 
 delivered by the district judge, and is the only authority produced to 
 sustain this proposition. From an examination of the case, we think 
 that it maintains the opposite doctrine. 
 
 The eminent counsel on the part of the plaintiff, arguendo, asserted 
 that two or more corporations may unite in the purchase of property 
 real or personal ; they may take a deed of real estate for the estab- 
 lishment of their houses of business. Insurance companies may own 
 pilot boats in common, and canal companies may be tenants in common 
 of locks, canal boats and other property subserving their mutual interest; 
 i Kyd, 108; 2 Kent's Com., 315; and the counsel for the defendant 
 said, "It is not denied that distinct corporations may own property in 
 common," while Savage, the chief justice, in delivering the opinion 
 of the court, said, "These two companies had certain moneys in the 
 hands of their officer; they were both interested in those moneys, and 
 probably in equal degree. Not being partners, they were tenants in 
 common ; in that character they made the deposit of the money, and 
 in that character I can see no objection to their sustaining an action 
 for it; thus the court decides that they may be tenants in common in 
 a chattel, but does not decide that they may be so in lands, that ques- 
 tion not being before the court," and yet this case is cited to maintain 
 the doctrine that two corporations can not hold real estate as tenants 
 in common. 
 
 The books and cases do not afford any instance in which this right 
 of holding lands as tenants in common, either with each other or. with 
 natural persons, is denied to corporations. Not one of the reasons 
 which work a want of capacity to hold as joint tenants would prevent 
 their holding as tenants in common, for this estate requires but one 
 unity, that of possession. 
 
 So far from corporations not being able to hold lands in common, 
 the original condition at common law of the largest class of corpora-
 
 294 POWER TO ACQUIRE REAL PROPERTY. IO2I 
 
 tions known to the law, was that of holding all their lands in common 
 with each other; and they were never separated until the original 
 position produced inconveniences, i Kyd Corporations, 108. * * * 
 Order denying motion reversed. 
 
 Note. See to same effect, as to joint tenancy : 1851, Telfair v. Howe, 3 Rich. 
 Eq. (S. C.) 235, 55 Am. D. 637. Also to same effect, as to tenancy in common : 
 1883, Estell v. University of the South, 80 Tenn. (12 Lea) 476; 1885, Hackett 
 v. Multnomah R. Co., 12 Ore. 124, 53 Am. Rep. 327; 1894, Calvert v. Idaho 
 Stage Co., 25 Ore. 412; 1895, Bates v. Coronado Beach Co., 109 Cal.'l60. 
 
 Sec. 294. (B) By devise. 
 
 (a) History and general doctrines. 
 
 McCARTEE v. ORPHAN ASYLUM SOCIETY OF NEW YORK. 1 
 
 1827. IN THE COURT FOR THE CORRECTION OF ^RRORS OF NEW 
 YORK. 9 Cowen (N. Y.) Rep. 437-525, 18 Am. Dec. 516. 
 
 [J. , being seized of real estate, devised that if, at his death, he 
 should have a child living, the rents and profits should be received 
 by his executors, and applied for the support, etc., of the child, the 
 surplus to be invested in stock to accumulate and be paid over to the 
 child at twenty-one, or marriage. He gave all the residue of his real and 
 personal estate, after payment of all legacies and other bequests, to 
 a corporate company (the Orphan Asylum Society in the city of New 
 York), the bequest to take effect immediately after debts and lega- 
 cies paid, if he should leave no child; or, if he should leave a child, 
 then, upon the child's death, inter-marriage or attaining twenty-one. 
 The will then gave to his executors all his real estate, subject to the 
 trusts aforesaid, and declared his will to be that when such child 
 should attain twenty-one, or marry, his real estate should be sold by 
 his executors, and one-half of the proceeds paid to the child, if it 
 should attain twenty-one, or marry. The testator died, seized, and 
 a posthumous child was born to him, which died before twenty-one, 
 and unmarried. 
 
 The chancellor, JONES, upheld the devise to the orphan asylum, 
 and appeal was taken.] 
 
 STEBBINS, SENATOR, dissenting. * * * 
 
 The questions presented by the case, as I view it, are first, whether 
 the testator (Phillip Jacobs) devised the real estate in question to the 
 corporation directly, or to his executors, subject to the trusts mentioned 
 in the will ; second, whether the devise to trustees for the use of the 
 respondents, is a valid devise, under which they can take as cestuis 
 qifeuse', and third, whether the use is executed by the statute of uses, 
 and if so, the effect. 
 
 [After holding contrary to the majority opinion that the devise was 
 
 1 Statement abridged ; Chancellor Jones' and Senators Woodworth's and 
 Crary's opinions omitted, and only part of Senator Stebbins's opinion given.
 
 1022 M'CARTEE v. ORPHAN ASYLUM SOCIETY. 294 
 
 not to the corporation directly, but to the executors in trust a ques- 
 tion of construction, proceeds:] 
 
 The next and more important question is, whether the corporation 
 can take the use under this will, notwithstanding the provisions of 
 our statute of wills. This statute enacts that any person having any 
 estate of inheritance in any lands, tenements or hereditaments, may 
 give or devise the same, or any rent or profit out of the same, to any 
 person or persons (except bodies politic and corporate") by his last 
 will and testament, or by any other act by him lawfully executed ; 
 and it is contended that if a devise to a corporation directly would be 
 void, a devise of the use is also void. 
 
 Although in England, under the Saxons, lands were devisable by 
 will at common law, yet at the conquest, and upon the introduc- 
 tion of the feudal system, the common law underwent a complete 
 change in this respect; and an estate in fee-simple in lands was no 
 longer devisable. It became inconsistent with the nature of that sys- 
 tem, that a tenant should have an unlimited power to devise his lands; 
 for the reason that he might devise to persons incapable of perform- 
 ing feudal services. The power of alienation by devise (except of a 
 chattel interest) is in England, then, to be traced to the statutes of 
 wills of the 32 Hen. VIII, ch. i, and 34 Hen. VIII, ch. 5. 
 
 Our statute of wills is a transcript of these, with the additional 
 enumeration of rents and profits. It is contended that the terms rents 
 and profits, mentioned in the statute, are intended to describe a use, 
 and that, as the lands can not, so the use also can not, be devised to a 
 corporation under this statute. 
 
 I apprehend, however, there is a material difference between rents 
 and profits, and that which has long been known under the denomina- 
 tion of a use. 
 
 Rents and profits are incorporeal hereditaments ; but a use is not. 
 A use is said to be neither jus in re nor ad rem, neither right, title 
 nor interest in law, but a species of property unknown to the com- 
 mon law, and owing its existence to the equitable jurisdiction of 
 chancery, resting upon confidence in the person and privity of estate, 
 a thing collateral to the land, and only annexed to a particular estate 
 in it, not to the mere possession ; so that when the estate to which 
 the use is annexed is destroyed, the use itself is destroyed, as by dis- 
 seisin, or the entry of tenant by the curtesy or in dower. It was 
 rather a hold upon the conscience of the feoffee to uses, than a lien 
 upon, or interest in, the land; and the principle upon which it was 
 founded was that the feoffee was bound in conscience to follow the 
 direction of the fepffor. (See Cruis. Dig., tit. n, ch. 2.) A thing 
 so subtle, and cognizable only in courts of equity, which act upon 
 the conscience, differs essentially from an incorporeal hereditament, 
 which is of legal cognizance. Indeed, incorporeal hereditaments, 
 such as rents, advowsons, etc., were the subject of conveyance to 
 uses. 
 
 If, then, a use is not comprehended in the terms of the statute the
 
 294 POWER TO ACQUIRE REAL PROPERTY. IO23 
 
 argument rests upon the ground that if a devise of land to the cor- 
 poration would have been invalid, the devise of the use is equally so. 
 
 It might perhaps be conceded that if corporations were prohibited 
 by statute from taking the fee by devise (which, by the by, is not the 
 case), the law would not allow them to take the use. But the his- 
 tory of the English law furnishes at least a plausible argument against 
 such a proposition. 
 
 Corporations were prohibited by several statutes of mortmain from 
 holding lands; yet it was deemed necessary to enact the statute of 15 
 Rich. II, ch. 5, declaring uses subject to the statutes of mortmain. 
 (Chudleigh's Case, I Rep. 120.) 
 
 But the statute of wills is an enabling statute, and not prohibitory. 
 Before this statute individuals had no capacity to devise lands; but 
 this enabled them to do so, except to corporations. In conferring the 
 capacity to devise the legislature withheld the capacity to devise to a 
 corporation, and for what reason ? 
 
 Before the statute of wills, corporations were prohibited by the 
 mortmain acts from taking or holding lands, or uses arising from them. 
 The exception, therefore, in the statute of wills, could not have been 
 introduced for the purpose of prohibiting corporations from taking by 
 devise, for they were already prohibited from taking in any mode ; 
 but was to guard against enabling them to take by devise. Without 
 the exception in the statute of wills in England they would have been 
 enabled to take by devise, when the mortmain acts would have pro- 
 hibited their taking in any other way. 
 
 The history of the statute, I think, fortifies this view of it. In the first 
 statute of wills (32 Hen. VIII, ch. i) corporations were not excepted, 
 and were, therefore, enabled to take by devise in common with other 
 persons, contrary to the policy of the statutes of mortmain ; but two 
 years afterwards the parliament, finding the mortmain acts so far re- 
 pealed by the statute of wills, passed a new statute (34 Hen. VIII, ch, 
 5), not prohibiting corporations in terms from taking under the stat- 
 ute of wills, but entitled, "an act for the explanation of the statute of 
 wills," in which they re-enact the provisions of the first statute of 
 wills, and introduce the exception as to corporations ; not, therefore, 
 expressly prohibiting corporations from taking, but qualifying the ca- 
 pacity to devise. The intention seems to have been to rely upon the 
 mortmain laws, to keep property from corporations and to qualify the 
 statute of wills so as not to interfere with those prohibitory acts. 
 
 The distinction is a wide one between an incapacity to devise and 
 a prohibition against taking; for, although there may be an incapac- 
 ity to devise directly to a corporation, yet such incapacity will not pre- 
 vent the corporation from taking by grant from the devisee in trust, if 
 there is no prohibition against their taking. So, too, there may be an in- 
 capacity to devise lands to a corporation, and yet the corporation may 
 take a use. But in either case, if prohibited from taking, the law 
 would not probably allow that to be indirectly done which was directly 
 prohibited. 
 
 If, then, there is no other reason arising from the statute of wills
 
 IO24 M'CARTEE v. ORPHAN ASYLUM SOCIETY. 294 
 
 why corporations may not take land by devise, except the want of 
 capacity in the devisor to convey, there would seem to be no objec- 
 tion in this case against the corporation's taking as cestui que use ; for 
 a devisor has capacity to devise a use ; and this corporation is not pro- 
 hibited from taking and holding either land itself or a use. All the 
 English mortmain acts, including the I5th Rich. 2, are repealed by 
 our statutes. 
 
 And if corporations can not take by devise, merely for want of 
 capacity to take in that particular way, the cases of a conveyance 
 from a wife to her husband through the intervention of a trustee, and 
 of a tenant in tail to a purchaser by means of a common recovery, 
 seem to be conclusive to show that an indirect mode of conveyance is 
 no fraud upon the law when resorted to only to remedy a want of 
 capacity to convey directly. 
 
 If it is shown that the exception in the statute of wills is to be re- 
 garded not as a prohibition against the taking of lands by a corpora- 
 tion, but as a qualification of the capacity to devise, created by that 
 statute, the opinion pronounced in the court of chanceiy in this cause 
 contains another view of the subject which appears to my mind per- 
 fectly conclusive. It is, that before the statute of wills, when persons 
 were not capacitated to take lands by devise, they might nevertheless 
 take the use in that way ; and, therefore, that since the statute of wills, 
 although corporations can not take lands by devise, yet they may take 
 the use, there being no prohibition. 
 
 Corporations, since the statute of wills, stand in the same situation 
 as to taking lands by devise as all natural persons stood in before 
 that statute. If, therefore, a use was devisable before the statute, a 
 corporation may take a use by devise since the statute, especially if it 
 be such as is not executed by the statute of uses. 
 
 It is said by Cruise that uses were devisable, though lands were not ; 
 and persons, by that means, acquired a disposition of property for the 
 benefit of their families, which they had not otherwise. They were 
 the invention of ecclesiastics to evade the statutes of mortmain. And 
 after the i5th Rich. 2, ch. 5, which subjected them to the statutes of 
 mortmain, the practice of conveying to uses was continued as the 
 most effectual mode of evading the hardships of the feudal tenures, 
 and of securing estates from forfeiture for treason. They became 
 general, and were applied to purposes inconsistent with the policy of 
 the government. * * * 
 
 Finally, by the statute of uses, 27 Hen. 8, ch. 10, after reciting all 
 these mischiefs, the legislature declared that possession shall be an- 
 nexed to the use. 
 
 The object of the crown was to reassert its rights of wardship and 
 other feudal profits out of the lands of the nobility ; and the intention 
 of parliament was to abolish uses bv changing them into legal estates, 
 and subjecting them to the rules of common law tenures. * * * 
 
 Before the statute of uses we have seen they were devisable to 
 natural persons, although there was then no statute of wills nor any 
 common law capacity to devise. The operation of the statute upon
 
 294 POWER TO ACQUIRE REAL PROPERTY. IO25 
 
 uses is said to have been by turning the use into land, to render it not 
 devisable in the same manner as the land itself. (2 Black. Com., 
 
 375-) * * * 
 
 But all the reasoning arising from the statute of uses is answered, 
 
 if the use in this case is such as could not be executed by that statute ; 
 for clearly, in such case, it could have no operation to destroy the 
 capacity to devise. 
 
 The question then arises, whether the use in this case is within the 
 statute ; and the examination of it necessarily casts us back upon the 
 will, to seek for the intention of the testator. He devises the estate 
 to trustees, in trust for the Orphan Asylum Society, to be applied to 
 the charitable purposes for which the association was established. His 
 object was not to benefit the society; but through it, to apply the 
 estate to the charitable purposes for which the society was organized. 
 The society itself is a trustee; and has a trust to perform, which a 
 court of equity would undoubtedly enforce. It is a devise to trustees 
 for the use of the society, as trustees for certain charitable pur- 
 poses. * * * 
 
 If it is granted, then, that the corporation itself had a trust to exe- 
 cute under this will, it is a case not within the statute of uses ; for that 
 statute can only execute the first use, which, in this case, would vest 
 the estate in the corporation, unincumbered by any trust for charitable 
 purposes, .and contrary to the plain intention of the testator. A trust 
 is a use not executed by the statute ; and the author of the Touchstone 
 remarks (p. 507, n. i) that "one of the modes of creating a trust is 
 said to be where lands are limited to the use of A. in trust to permit 
 B. to receive the rents and profits ; for the statute can only execute the 
 first use." 
 
 The conclusions which follow my view of the case are, that the 
 devise of the real estate in question was not to the corporation directly, 
 but to the executors for the use of the corporation upon the con- 
 tingency which has happened, to be appropriated to certain charitable 
 purposes : 
 
 That under the statute of wills there is a mere incapacity in cor- 
 porations to take lands by devise, and not a prohibition against their 
 taking: 
 
 That a use was devisable at common law before the statute of 
 wills ; and therefore that this corporation may take a use by devise, 
 not being prohibited by statute from taking either a use or the land 
 itself : 
 
 That the use in this case is not such as could be executed by the 
 statute of uses ; or if it is, that the operation of the statute would not 
 invalidate the devise, but vest the estate in the corporation. 
 
 If these propositions are established, it follows that the respondents 
 are entitled to the estate in question, and that the decree of the court 
 of chancery is, at least, substantially correct. * * * 
 
 Reversed. 
 
 Note. See following cases. 
 66 WIL. CASES.
 
 1026 WHITE V. HOWARD. 2Q5 
 
 Sec. 295. Same. 
 
 (6) Restrictions in charters and restrictions in statutes of wills. 
 WHITE v. HOWARD. 1 
 
 1871. IN THE SUPREME COURT OF ERRORS OF CONNECTICUT. 38 
 Conn. Rep. 342368. 
 
 [Bill in equity by the executors of William Bostwick, praying for 
 advice in the construction of the will. Bostwick devised certain prop- 
 erty to trustees in fee-simple for the benefit of his daughter during 
 life, and in case of her decease without issue or husband surviving 
 her, the trust fund was to be divided equally among six benevolent 
 societies, one of which was the American Tract Society, incorporated 
 in New York, with power to hold, purchase and convey real and per- 
 sonal property, provided its net income therefrom should not exceed 
 $10,000 annually. The New York statute of wills provided that "no 
 devise to a corporation shall be valid unless such corporation be 
 expressly authorized by its charter, or by statute, to take by devise." 
 It was contended by the heirs at law that this prevented the society 
 from taking a devise of land in Connecticut, and that the residuary 
 clause failed to this extent. Case was reserved by the superior court 
 for advice on facts found by a committee.] 
 
 FOSTER, J. * * * It is asserted that the American Tract 
 Society can take neither real nor personal property under this will. 
 That it can not take real, because its charter of incorporation, 
 granted by the state of New York, does not confer the power of tak- 
 ing by devise ; that it can not take personal, because the charter pro- 
 vides that the net income of said society arising from real and personal 
 estate shall not exceed the sum of $10,000 annually. This limit, it is 
 claimed, has been reached and exceeded, and so the capacity of the 
 society to take property is exhausted. This society was incorporated 
 'by a special act of the legislature of the state of New York, passed 
 May 26, 1841. The third section of its charter provides that the cor- 
 poration shall possess the general powers, and be subject to the pro- 
 visions contained in title third of chapter eighteen of the first part 
 of the revised statutes, so far as the same are applicable, and have not 
 been repealed. The title and chapter referred to enumerate the pow- 
 ers of corporations, and the clause which bears directly upon this sub- 
 ject reads thus: "To hold, purchase and convey such real and per- 
 sonal estate as the purposes of the corporation shall require, not ex- 
 ceeding the amount limited in its charter." This charter was amended 
 by the legislature of New York on the 3ist of March, 1866; but as 
 this was after the death both of the testator and of his daughter, that 
 amendment need not be particularly considered, as it can not materi- 
 ally affect the question involved. Now it is manifest that this corpo- 
 ration has express power by its charter to hold, purchase and convey 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 295 POWER TO ACQUIRE REAL PROPERTY. IO2/ 
 
 real and personal estate, for specified purposes and to a limited 
 amount. There is no express power to take by devise, nor is the 
 power so to take expressly prohibited. 
 
 We suppose there could be no doubt that this corporation could 
 take by devise in New York, if the statute of wills of that state em- 
 powered corporations generally to take in that manner. The English 
 statute of wills, passed in the time of Henry VIII, authorized every 
 person having a sole estate in fee-simple of any manors, etc., "to 
 give, dispose, will or devise, to any person or persons, except to bod- 
 ies politic and corporate, by his last will and testament in writing, or 
 otherwise by any acts lawfully executed in his lifetime, all his manors, 
 etc., at his own will and pleasure, any law, statute, custom, or other 
 thing theretofore had, made, or used to the contrary notwithstanding." 
 Thus corporations, by express exception in these statutes, were not 
 enabled to take lands directly by devise in England, and the statute 
 of wills of the state of New York makes the same exception. By 
 that statute it is enacted, that all persons, except idiots, persons of 
 unsound mind, married women, and infants, may devise their real 
 estate by a last will and testament duly executed, etc. "Such devise 
 may be made to every person capable by law of holding real estate ; 
 but no devise to a corporation shall be valid, unless such corporation 
 be expressly authorized by its charter, or by statute, to take by devise." 
 3 N. Y. Rev. Stat., 138 (5th ed.). This corporation, therefore, 
 prior to the recent amendment of its charter, could not take by de- 
 vise in New York, and such is the decision of their supreme court and 
 court of appeals in this very case. And so it is earnestly contended 
 that it can not take by devise in Connecticut. We yield readily to 
 the doctrine laid down in this connection in regard to corporations; 
 indeed it is too thoroughly established to be doubted or questioned. 
 That doctrine perhaps is nowhere better stated than in the case of 
 Head v. Providence Ins. Co., 2 Cranch 127, by the then illustrious 
 head of the supreme court of the United States, the late Chief Justice 
 Marshall. "It [a corporation] may correctly be said to be precisely 
 what the incorporating act has made it ; to derive all its powers from 
 that act, and to be capable of exerting its faculties only in the manner 
 which that act authorizes." Now this corporation stands at the bar 
 of this court claiming the right to take lands within our territory by 
 devise. It is clothed with such powers as have been conferred by its 
 charter. Those, a portion of them, as we have seen, are to hold, 
 purchase, and convey real estate. It is not expressly authorized to 
 take by devise, nor is it prohibited from so taking. Can it then take 
 by devise? Not in New York, as we have seen. Therefore not in 
 Connecticut, say the counsel for the heirs at law, for being a New 
 York corporation, and by the law of that state devoid of power to 
 take by devise, no argument is needed to show its inability to take by 
 devise in Connecticut. 
 
 This conclusion is too hastily drawn. If the inability to take by 
 devise arose out of a prohibitory clause in the charter, the conclusion 
 would be legal and logical. But the inability does not so arise.
 
 IO28 WHITE V. HOWARD. 295 
 
 There is no prohibition in the charter ; the inability is created by the 
 New York statute of wills, expressly excepting corporations from 
 taking by devise. Now this corporation brings with it from New 
 York its charter, but it does not bring with it the New York statute 
 of wills and can not bring it to be recognized as law within this 
 jurisdiction. There is an obvious distinction between an incapacity 
 to take created by the statute of a state, which is local, and a pro- 
 hibitory clause in the charter, which everywhere cleaves to the cor- 
 poration. The reasoning is fallacious, not recognizing this distinc- 
 tion. There being no prohibition in the charter, and the power to 
 hold and convey real estate being expressly given, we must look to 
 our own statutes and laws, and not to those of New York, to deter- 
 mine whether or not this corporation can take by devise in Connec- 
 ticut. 
 
 The state of New York has partially adopted the policy of Eng- 
 land in regard to devises to corporations, though the English statutes, 
 usually called the statutes of mortmain, have not been re-enacted in 
 that state. Those statutes began with Magna Charta, in 9 Henry 
 III, and embrace a succession of acts down to and including 9 George 
 II. They were intended to check the ecclesiastics of the Roman 
 church from absorbing in perpetuity, in dead clutch, all the lands of 
 the kingdom, and so withdrawing them from public and feudal 
 charges. Shelford Mortmain, 2. By the statute of 43 Eliz., 
 ch. 4, known as the statute of charitable uses, lands may be de- 
 vised to a corporation for a charitable use, and the court of chancery 
 will support and enforce such devises. 
 
 Whether a court of equity has power to execute and enforce such 
 trusts, as charities, independent of any statute, is a question which 
 has been much discussed, and very high authorities can be quoted 
 both in favor and against the exercise of such a power. We think 
 the latter and better opinion to be in favor of an original and neces- 
 sary jurisdiction in courts of equity as to devises in trust for charita- 
 ble purposes, when the general object is sufficiently certain and not 
 contrary to any positive rule of law. It is unnecessary, however, to 
 decide this question, for in this state we have no statutes of mortmain ; 
 no exception in our statute of wills prohibiting corporations from tak- 
 ing by devise ; aliens, resident in this state or in any of the United 
 States, may purchase, hold, inherit, or transmit real estate in as full 
 and ample a manner as native born citizens ; their wives are entitled 
 to dower; their children and other lineal descendants may inherit; 
 and we have besides a statute, passed in our colonial days in 1702, 
 in effect re-enacting the statute of 43 Elizabeth, and containing indeed 
 more liberal and comprehensive provisions to sustain devises of this 
 description than are contained in the 43 Elizabeth. That act pro- 
 vides that "all lands, tenements, or other estates that have been or 
 shall be given or granted by the general assembly, or any town or 
 particular person, for the maintenance of the ministry of the gospel, 
 or of schools of learning, or for the relief of the poor, or for any other 
 public and charitable use, shall forever remain to the uses to which
 
 ^ 296 POWER TO ACQUIRE REAL PROPERTY. IO2Q 
 
 they have been or shall be given or granted, according to the true 
 intent and meaning of the grantor, and to no other use whatever." 
 
 We therefore entertain no doubt that the American Tract Society 
 can take by devise in this state. As to the other objection, that hav- 
 ing an income greater in amount than is allowed by its charter it has 
 exhausted its power to take, it suffices to say that no such fact is found 
 by the very competent committee whose report is on the record. * * * 
 
 Superior court advised accordingly. 
 
 Note. A. statute of wills operates only within the state enacting it, and 
 upon land lying therein, and hence does not prevent devises to corporations 
 having power to take, of land lying in foreign states: 1855, Thompson v. 
 Swoope, 24 Pa. St. 474; 1864, American Bible Society v. Marshall, 15 Ohio 
 St. 537; 1871, Chamberlain v. Chamberlain, 43 N. Y. 424; 1871, White v. 
 Howard, 38 Conn. 342, supra; 1876, United States v. Fox, 94 U. S. 315; 1880, 
 Crum v. Bliss, 47 Conn. 592. 
 
 A charter provision, or a provision in the general corporation law (but not 
 one in the general law of persons or property), limiting the corporation's right 
 to take and hold property, cleaves to it every where, both at home and abroad, 
 and makes a taking of such property in violation thereof ultra vires: 1859, 
 Boyce v. St. Louis, 29 Barb. 650; 1871, White v. Howard, 38 Conn. 342, supra; 
 1874, Starkweather v Am. Bib. Soc., 72 111. 50. 
 
 But a statute of wills may be so worded as to be considered a part of 
 the general corporation law of the state, and therefore amount to a charter 
 limitation: 1874, Starkweather v. Am. Bib. Soc., 72 111. 50, 22 Am. Rep. 133; 
 1874, U. S. Trust Co. v. Lee, 73 111. 142, 24 Am. Rep. 236. 
 
 A state statute or policy clearly meant to exclude corporations from hold- 
 ing real estate within the state would prevent a foreign corporation from so 
 holding. 1893, In re Prime's Estate, 136 N. Y. 347, 362; 1897, Amherst Col- 
 lege v. Rich, 151 N. Y. 282. 
 
 So, too, a corporation with power to take land can not take land left to it 
 by a foreign testator when the devise is not in accordance with the law where 
 the land lies. 1871, White v. Howard, 46 N. Y. 144. 
 
 The capacity to bequeath personal property generally depends upon the law 
 of the domicile of the owner, rather than the law of the situs of the property, 
 and with that modification, the rules above as to the corporation's right to 
 take and hold a bequest would apply. Jarman Wills (6th ed.), p. 1, & seq. 
 1871, Chamberlain v. Chamberlain, 43 N. Y. 424; 1880, Crum v. Bliss, 47 
 Conn. 592; 1892, Cross v. U. S. Trust Co., 131 N. Y. 330, 27 Am. St. Rep. 597; 
 1893, Dammert v. Osborn, 140 N. Y. 30. 
 
 Sec. 296. Same. 
 
 (c) Who may object when limit is exceeded. 
 
 FARRINGTON ET AL. v. PUTNAM ET AL. 1 
 
 1897. IN THE SUPREME JUDICIAL COURT OF MAINE. 90 Maine 
 Rep. 405-447' 37 Atl. Rep. 652. 
 
 [Bill in equity brought by the heirs at law of Ira P. Farrington 
 against his executors and the Maine Eye and Ear Infirmary to enjoin 
 the executors from paying over and the infirmary from receiving gifts 
 
 1 Statement abridged. Only part of opinion given.
 
 IO3O FARRINGTON ET AL. V. PUTNAM ET AL. 296 
 
 of real and personal property as residuary legatee. The bill alleged 
 that the law under which the infirmary was incorporated provided : 
 "Such corporations may take and hold, by purchase, gift, devise or 
 bequest, personal or real estate, in all not exceeding $100,000, owned 
 at any one time;" also that the infirmary had at the death of the tes- 
 tator property to the .full amount of $100,000; that any additional 
 amount would be in excess of the limit, violate the statutes, be invalid 
 and void, and revert to the heirs. General demurrers were filed and 
 sustained by the court below, and final decree rendered in favor of 
 respondents ; exceptions were taken and appeal made to the supreme 
 court.] 
 
 PETERS, C. J. * * * The question on the first branch of the 
 case, therefore, is whether these devises and bequests are absolutely 
 void as the complainants contend, or whether they are merely voida- 
 ble according to the view of the question taken by the respondents. 
 After very much examination of the authorities pro and con, and 
 careful consideration of the principles which affect the respective po- 
 sitions of the parties, we feel forced to the conclusion that the position 
 advocated by the complainants ought not to be sustained. We feel 
 very much impressed with the theory, stated in many of the cases, 
 that a charter is a contract between the state and the corporation ; and 
 that for any misuse or abuse of its privileges or powers the corpora- 
 tion is amenable to the state only, no individual having anything to do 
 with the question. As applicable to the present case, the principle is 
 that, if the infirmary, by accepting these bequests and devises, in- 
 creases its property ever so much in excess of the amount in value 
 which the statute allows it to possess, it would be a transgression of 
 the law which the state can prosecute or not as it pleases, and the 
 heirs of the testator have no interest therein. As long as the state 
 does not interfere for the violation, it waives it and permits the in- 
 firmary to retain the property. 
 
 The general statute under which this infirmary was organized is not 
 expressly prohibitory, but rather regulative and directory. No pen- 
 alties are attached and none intended more than a possible forfeiture 
 of the excessive property received, or of the charter, or of one or both. 
 This interpretation of the statute can not by any possibility be harm- 
 ful to the community, as the state can make it as stringent as it pleases 
 at any time. But thus far the state has had no motive either to amend 
 the statute or to enforce forfeitures for violation of its provisions. * * 
 
 It will be noticed that most of the authorities, on which the com- 
 plainants rely, concede that the rule which we would apply to devises 
 is at all events applicable to gifts by deed, the argument being that in 
 such a case as this a deed would be valid and a devise void. It 
 seems inconsistent that such potential consequences should attach to 
 the mere form of transmitting the property. We do not appreciate 
 the justice of saying that a deed of property delivered by a donor on 
 the day of his death to a corporation would be good, and a devise of 
 the same property made on the same day would be bad. But the ar- 
 gument by the complainants is that, in the one case, the transaction is
 
 296 POWER TO ACQUIRE REAL PROPERTY. 103 1 
 
 executed and, in the other case, that it can not be considered as exe- 
 cuted without a resort to the forms and assistance of the courts. We 
 think the whole thing involves a distinction without a difference, a 
 formal but not substantial distinction. Each mode of transfer needs 
 the protection and aid of the law to render it operative. In the first 
 place, the will must be probated, it is said. But on that question no 
 inquiry can be instituted to see if there be any impropriety in any par- 
 ticular devise or bequest. The residuary bequest in this will is fair 
 and proper on its face, and that is all that is required. The act of 
 probating the will is the probating of all its parts. A devise of real 
 estate vests such estate at once in the devisee, the title of such devisee 
 being liable to be defeated if the estate be necessaiy for the payment 
 of debts or the expenses of administration. * * * , 
 
 The foregoing reasoning only serves to illustrate the unsubstantial 
 foundation upon which it is endeavored to raise a technical excuse for 
 pronouncing a deed voidable and a devise absolutely void. 
 
 The true and conclusive answer, however, to this indefensible posi- 
 tion of the complainants is, that it is utter assumption on their part in 
 declaring a devise like this to be void when it is voidable merely, and 
 can be rendered void in no way other than by the act of the govern- 
 ment itself. No wrongful act by a corporation renders its charter 
 void or creates any forfeiture without proceeding by which such for- 
 feiture shall be established. A cause for forfeiture is not itself for- 
 feiture. The same section which prescribes- the amount of property 
 which this corporation may hold, also declares that it may use and 
 dispose of the same for the purposes for which it was organized. 
 Suppose the corporation wrongfully uses or disposes of its property, 
 could any party but the state intervene to punish the corporation for 
 such transgression ? 
 
 Now what is there illegal, let us ask, in this court or in the probate 
 court below acting in the furtherance of bequests that are simply void- 
 able and consequently valid until they have been declared to be other- 
 wise upon the intervention of the state ? If the state has the exclusive 
 privilege, as it has, of rendering the voidable bequest void, what is 
 there wrongful in our regarding it as sound and sufficient while the 
 question of its validity is not acted upon by the state, or the error is 
 waived or permitted by the state? What right has the judicial branch 
 of the government to dictate what the state should do against its will 
 or its policy, and decide a question for the state which the state can 
 better decide for itself? What right has the court to deprive the state 
 of all opportunity to determine whether it will thus severely punish 
 this corporation for the mistake of the testator or will waive or over- 
 look it? Certainly the state should not be prevented from making 
 such election. If courts at the instigation of heirs can refuse to act 
 upon voidable bequests as valid until avoided by the state, then, as a 
 matter of course, the state can practically never have any opportunity 
 to exercise its discretion in such a case any more than as if such right 
 never existed, and the court would be assuming the prerogative of 
 really acting in opposition to the state. The court could not exercise
 
 1032 FARRINGTON ET AL. V. PUTNAM ET AL. 296 
 
 any broad discretion in the solution of the question, while the state 
 could. It certainly is an excellent policy to refer such questions to 
 the discretionary power of the state, which can determine them, ac- 
 cording to the circumstance, upon the great principles of justice and 
 generosity, and in conformity with the wishes and welfare of the whole 
 community. * * * 
 
 There is but little authority, either English or American, favoring 
 the conclusion that bequests or devises not strictly authorized by law 
 are to be considered void instead of voidable. This will be seen in 
 the examination of cases in this country to be made in the progress of 
 this discussion. But it may also be worth the while to notice what 
 application has been made of the principle by the English courts in 
 view of the statutes of mortmain as existing in that country. In Grant 
 on Corporation's, a reputable English work on the subject, at page 
 101, the author states the doctrine as follows: 
 
 "It is clear, however, that if a corporation have exhausted their 
 license to hold in mortmain, the fact does not make a devise or con- 
 veyance to them void. The only result is, that they may take, though, 
 unless they can obtain an extension by the crown of their license, 
 they can not hold the lands, unless the mesne lords and the crown 
 choose to sleep upon their respective titles. " * * * 
 
 The cases in this country, most of them which favor the principle 
 that an estate in the condition this is goes to the heirs of a testator rather 
 than to the devisee, seem to inculcate the idea that the heirs may waive 
 their right so as to allow the estate to pass to the devisee. And we 
 have not the slightest doubt that, but for the interference of the heirs 
 in the present case by this bill in equity, no obstacle would have stood 
 in the way of a complete administration of the testator's estate accord- 
 ing to his clearly expressed intention. No court would have had the 
 least hesitation in following the ordinary course of procedure, or 
 would have entertained the thought suo moto, of instituting inquiry to 
 see whether the bequests in question were valid or not. But why 
 should a bequest, invalid when not consented to by the heirs, become 
 unobjectionable when such consent is obtained ? If illegal as coming 
 from the testator, why not just as illegal when coming from the testa- 
 tor and his heirs ? Such considerations as these go to show how illogical 
 and untenable a position it is to denominate the devises and bequests 
 in the present will absolutely void. * * * 
 
 [After citing and reviewing numerous authorities upon both sides, 
 and particularly Trustees of Davidson College v. Chamber's Execu- 
 tors, 3 Jones Eq. (N. C.) 253; Heirs v. Louisville Orphan's Home, 
 3 Bush (Ky.) 365; Chamberlain v. Chamberlain, 43 N. Y. 424; 
 Matter of McGraw, in N. Y. 66; Wood v. Hammond, 16 R. I. 98; 
 and De Camp v. Dobbins, 31 N. J. Eq. 671, specially relied upon by 
 counsel for plaintiff, proceeds:] 
 
 Upon closing his discussion of the direct cases cited on his opening 
 brief, the learned counsel for the complainants says: "But if the 
 decisions of New York are claimed to rest upon the provisions of 
 special New York statutes, what has the counsel to say as to all the
 
 296 POWER TO ACQUIRE REAL PROPERTY. IO33 
 
 other cases cited by the plaintiffs from North Carolina, from Ken- 
 tucky, from New Jersey and from Rhode Island?" We have sub- 
 stantially, according to our view, answered the question ourselves by 
 saying that the force of the opinion of the two judges in the North 
 Carolina case is much lessened by the able minority opinion of the 
 chief justice in the case, and by the fact that the majority opinion 
 yields the question as to devises of real estate ; that the Kentucky 
 case is a better authority for the respondents than for the complain- 
 ants; that it is not sure that the complainants have any support in the 
 New Jersey case outside of that contributed by the chief justice in his 
 opinion ; and that the Rhode Island case evidently follows the decis- 
 ions in New York. How little authority then have the complainants 
 to rely on outside of the McGraw case in New York? We have no 
 reason to doubt the correctness of the result of the decision in that 
 case as based upon exceptional statutes in that state not existing else- 
 where. * * * 
 
 From the foregoing propositions it is clearly deducible that bequests 
 like the present are voidable only, and may be avoided by the state 
 alone, and are in no sense to be regarded as void; that a policy arose 
 as to what better be done in the circumstances of each particular 
 case, and that that policy belongs to the state and not to the court and 
 is an executive and not a judicial right, for the court would decide 
 the question in the case for all cases and all time, while the state may 
 decide the question differently at different times according to its dis- 
 cretion and the public good. This right the state has never surren- 
 dered and the court can not take it from the state. But it would 
 surely deprive the state of its privilege if the court fails to act upon 
 these bequests as valid bequests until, in proper and independent pro- 
 ceedings, such bequests are declared to be void. 
 
 This conclusion renders it unnecessary and inexpedient to discuss 
 the further contention of the respondents that the bequests are valid 
 in equity if not at law, upon the maxim that no legal trust of a char- 
 itable nature shall fail for want of a competent trustee, and that if 
 this corporation can not act some other party may be appointed by 
 the court that can. 
 
 Exceptions overruled. 
 
 Appeal dismissed, and decree below affirmed. 
 
 Note. Accord: 1844,Vidal v. Girard's Executors, 2 How. (43 U. S.) 127 ; 1846, 
 Wade v. Am., etc., Soc., 7 Sm. & M. (Miss.) 663, 45 Am. Dec. 324; 1847, Bo- 
 gardus v. Trinity Church, 4 Sandf. Ch. (N. Y.) 633, 758; 1860, Chambers v. 
 St. Louis, 29 Mo. 543; 1870, Smith v. Sheeley, 12 AVall. 358, 361 ; 1871, Rainey 
 v. Laing, 58 Barb. (N. Y.) 453; 1872, Hayward v. Davidson, 41 Ind. 212; 1878, 
 De Camp v. Dobbins, 29 N. J. Eq. 36; 1879, Jones v. Habershatn, 3 Woods 
 443, 476; 1880, National Bank v. Whitney, 103 U. S. 99; 1882, Jones v. Hab- 
 ersham, 107 U. S. 174; 1884, Alexander v. Tolleston Club, 110 111. 65; 1889, 
 Fritts v. Palmer, 132 U. S. 282; 1889, Heiskell v. Chickasaw Lodge, 87 Tenn. 
 668; 1890, Hamsher v. Hameher, 132 111. 273; 1894, Hanson v. Little Sisters, 
 etc., 79 Md. 434; 1897, In re Stickney's Will, 85 Md. 79, 60 Am. St. R. 308. 
 
 See next case and note, contra.
 
 1034 IN RE M'GRAW'S ESTATE IN RE FISKE'S ESTATE. 297 
 Sec. 297. Same. 
 
 IN RE McGRAWS ESTATE. 1 
 IN RE FISKE'S ESTATE. 
 
 1888. IN THE COURT OF APPEALS OF NEW YORK. in N. Y. 
 66-137, J 9 N - E - Re P- 2 33- 
 
 [Appeal from judgment of the general term of the supreme court. 
 
 The will of Mrs. Fiske directed that her estate "be converted into 
 money," and after numerous bequests contained the following resid- 
 uary clause: "I give, devise, and bequeath all the rest, residue and 
 remainder of my property (if any there shall be) to Cornell Univer- 
 sity, aforesaid, to be added to the 'McGraw Library Fund' aforesaid, 
 and subject to the trusts, purposes, uses and conditions hereinbefore 
 prescribed for said fund." The amount of Jennie McGraw Fiske's 
 estate at the time of her death, as found by the surrogate, was $2,275,- 
 933.46; legacies to other than Cornell University, $1,121,570; be- 
 quests to said university, $1,154,363.46. The university already had 
 property valued at more than $3,000,000. the amount limited by the 
 charter. The judgment below was against Cornell University.] 
 
 PECKHAM, J. The question to be decided in this case is whether 
 Cornell University, or some other parties, being the residuary lega- 
 tees, or else the heirs at law or next of kin of John McGraw, de- 
 ceased, or of Jennie McGraw Fiske, deceased, or her husband, shall 
 have the property, or any portion of it, bequeathed to the university 
 by the will of Mrs. Fiske. * * * , 
 
 Our revised statutes provided that every corporation, as such, has 
 power, among other things ( r, subd. 4), to hold, purchase and con- 
 vey such real and personal estate as the purposes of the corporation 
 shall require, not exceeding the amount limited in its charter. * * * 
 
 Under this power to hold, purchase and convey, * * * the 
 corporation could take the property by devise. * * * The same 
 revised statutes, in providing for the transmission of real property by 
 will, stated that "every estate and interest in real property descendible 
 to heirs" might be devised. "Such devise maybe made to every per- 
 son capable by law of holding real estate ; but no devise to a corpora- 
 tion shall be valid unless such corporation be expressly authorized by 
 its charterer by statute to take by devise." * * * 
 
 [The revised statutes provided that the trustees of every such college 
 shall have power] * * * to take and hold, by gift, grant or de- 
 vise, any real or personal property, the yearly income or revenue of 
 which shall not exceed the value of $25,000. * * * 
 
 Section 5 of the charter of the Cornell University reads as follows: 
 "Sec. 5. The corporation hereby created may hold real and personal 
 
 property not exceeding three millions of dollars in the aggregate." 
 
 * * * 
 
 Looking for a moment outside of and beyond the statute laws of 
 1 Statement abridged. Arguments and much of opinion omitted.
 
 297 POWER TO ACQUIRE REAL PROPERTY. 1035 
 
 the state, and in order to strengthen his position regarding the true 
 construction to be given that law as to the material distinction, in the 
 case at least of a corporation, between the power to take and the 
 power to hold property, the counsel for the appellant has made a most 
 able and learned argument. Its outlines are, in substance, as follows: 
 A corporation, at common law, could take and hold property by de- 
 vise. At an early stage in the history of the law of England, relating 
 to the power of corporations to hold real property, and while the feu- 
 dal system still prevailed, it was enacted that no man should alien his 
 feud to a corporation under penalty of a forfeiture thereof to his next 
 superior, of whom he held the land, and, in default of such superior 
 insisting upon the forfeiture, then his superior might do so, and thus 
 on until the king, as the general superior and lord of all, was reached. 
 But, in case the forfeiture was not insisted upon, the corporation, 
 which had taken a defeasible title to the land, could hold it as against 
 all the world. 
 
 He, therefore, insists that this distinction between taking and hold- 
 ing strengthens his claim that the use of the word "hold" in the char- 
 ter was intentional and for the specific purpose of permitting the cor- 
 poration to "take" an unlimited amount of property and to hold only 
 the amount specified. No sound reason for giving such unlimited 
 power to take, while limiting the power to hold, can, as it seems to 
 me, be stated ; and, if such were the intent, I think it would have 
 been plainly stated in the charter, instead of trusting to such a con- 
 jectural application to be given to another statute. 
 
 The counsel cites about all the writers upon the subject of corpora- 
 tions, and they have all adverted to this distinction as existing in re- 
 lation to the English corporations subject to the mortmain statutes, 
 and they state that licenses to hold in mortmain were granted to such 
 bodies, but without such licenses they took the title to the real prop- 
 erty aliened, subject only to the right of the superior lord to enter 
 and take the land under the power of forfeiture. The only penalty, 
 therefore, which a corporation risked when it took lands without a 
 license in mortmain was that of a forfeiture of the land to the next 
 superior of the grantor, and so on up to the king ; and the counsel 
 claims that in this state, in the case of a corporation with unlimited 
 power to take, but not to hold more than a certain amount, the pen- 
 alty for holding more is that the state, representing the whole people, 
 and standing in this respect in lieu of the king (there being no mesne 
 lords), can forfeit the charter of the corporation, and thus prevent 
 the further holding. And, assuming this to be the fact, he uses it as 
 strengthening his argument as to the existence of this clear and mate- 
 rial distinction between taking and holding property. 
 
 The further claim is then made that, as title to the property has 
 vested in the corporation, which, in holding it, has become subject to 
 the forfeiture of its charter, the heirs or next of kin of the testator have 
 no more right to raise the question than any other third parties who 
 have no interest therein. It is said that it is a matter for the state 
 alone to take cognizance of. and until it does the corporation holds the
 
 1036 IN RE M'GRAW'S ESTATE IN RE FISKE'S ESTATE. 297 
 
 property, however much it may transcend the limitation prescribed in 
 its charter. 
 
 The counsel states accurately the law of mortmain in England, and 
 its consequences of possible forfeiture of the estate granted, and, un- 
 til forfeiture, the vesting of the title in the corporation indefeasible, 
 except by the re-entry of the person entitled to take it by reason of 
 the forfeiture. But the circumstances under which lands are held by 
 citizens of New York, where their tenure is so wholly different from 
 that which prevailed in England when the early mortmain acts were 
 enacted, render any argument in regard to those acts and their effect 
 totally inapplicable to the case of a corporation of this state. Tak- 
 ing the law as it exists in our statutes, including the special provision 
 upon the subject in the charter of the university, it seems to me that 
 the provision therein limiting the holding of property is, as I have 
 said, a restriction also upon the power to take in excess of the speci- 
 fied amount. As, at common law, a corporation could take real 
 property in the same way as an individual, the consequence was that, 
 in England, large landed possessions were held by religious corpora- 
 tions, and, by reason of alienations of real estate to them, the services 
 due by the vassal to the lord were partially, if not totally, paralyzed, 
 and the chief lords lost their escheats.^This was a constantly grow- 
 ing and alarming evil. To remedy the difficulty, the first mortmain 
 act was placed in Magna Charta, which declared all such alienations 
 to corporations entirely void, and that the lands should revert to the 
 lord of the fee. It was held, however, that the reversion must be ac- 
 complished by an entry, and then and from that time there was a for- 
 feiture, the corporation having taken the title and held the property 
 until such forfeiture by re-entry. Shelf. Mortm. 8, 34; i KydCorp., 
 81; Grant Corp., 106. * * * 
 
 The nature of the tenure of real property at the time of the pas- 
 sage of the early mortmain acts in England bears no resemblance to 
 the tenure by which a citizen of this state holds lands. Here there 
 is no vassal and superior, but the title is absolute in the owner, and 
 subject only to the liability to escheat. Const. N. Y., art. i, 13. 
 The escheat takes place when the title to lands fails through defect of 
 heirs. Const. N. Y. , art. i, n. 
 
 A devise to a corporation which is forbidden to take (or forbidden 
 to hold, if the word, under the circumstances of the case, is construed 
 to include a taking also) does not, therefore, give a title subject to the 
 right of some superior to claim a forfeiture of the land ; but, if it 
 be in violation of a statute, I think the devise is void, and the land 
 descends to the heir or residuary devisee. 
 
 We have not, in this state, re-enacted the statutes of mortmain, or 
 generally assumed them to be in force, and the only legal check to 
 the acquisition of lands by corporations consists in those special re- 
 strictions contained in the acts by which they are incorporated, and 
 which usually confine the capacity to purchase real estate to specified 
 and necessary objects. 2 Kent Comm., 282. Of course, the re-
 
 297 POWER TO ACQUIRE REAL PROPERTY. IO3/ 
 
 strictions contained in any general law, if applicable, must also be re- 
 ferred to. 
 
 There is, by reference to our laws, no such necessary and univer- 
 sal distinction between taking and holding property by corporations 
 as is seen in the laws of England relating to alienations in mortmain. 
 Whether the legislature, when using language providing for a limita- 
 tion upon holding property, meant to permit an unlimited taking, is a 
 question of legislative intent ; and I think the general inference would 
 be, in the absence of some plain and controlling circumstance to the 
 contrary, that the legislative body meant to limit a taking as well as a 
 holding beyond the specified amount. * * * 
 
 The counsel for the appellant does not claim that this property was 
 itself forfeited to the state, if the state should choose to enforce the 
 forfeiture. His claim is, as I understand it, that if the university ex- 
 ceeded its limitation by holding more property than it was allowed by 
 law to hold, a cause of forfeiture of the charter was thereby created, 
 and that in enforcing such forfeiture after the payment of the debts 
 of the corporation the rest of the property would (as he insists) prob- 
 ably go to the state, because there would be no living claimant to it 
 who would have any right to acquire it. A forfeiture the state may 
 claim and may enforce at pleasure, when the occasion arises, but it is 
 a forfeiture of the charter, and not a forfeiture of the property held 
 by the corporation. It is further claimed that this distinction between 
 the right to take and the power to hold property is one which has been 
 admitted and enforced in the courts of England, of this state, and of 
 the other states of the Union for a long nvimber of years, and that 
 there is no reason why effect to such a distinction should not be given 
 in this case ; the result being, as is stated, that the corporation has an 
 unlimited right to take property, and also an unlimited right to hold 
 it as against any one but the state in its capacity of sovereign. There 
 is undoubtedly a distinction between the right to take and the power 
 to hold property under some circumstances, the only question being 
 whether the legislature had such distinction in mind, and meant to 
 provide for it in the case in hand. It is said that an alien has the 
 right to take property by purchase, but he can not hold it as against 
 the state. That is so. He takes, however, a defeasible title, good 
 as to all but the sovereign power, which must take it upon office 
 found or by escheat. Wright v. Saddler, 20 N. Y. 320. 
 
 In such case it is not exactly an accurate description of the alien's 
 title to simply say that he can take but can not hold. That is a con- 
 tradiction in terms. If he take, he must hold, if for but a fractional 
 part of a second of time. The expression is but a short one for the 
 statement that he can not hold, as against the claim of the state, where 
 properly made and enforced. The same expression is used in the 
 case of a corporation under the mortmain laws, that it can take but 
 not hold ; the meaning being that it can not hold as against the claim 
 for forfeiture when made by the next superior lord of the grantor of 
 the lands. That the words lose all their meaning when wrenched 
 from the circumstances under which they were used, and applied to
 
 1038 IN RE M'GRAWS ESTATE IN RE FISKE'S ESTATE. 297 
 
 corporations existing by virtue of the laws of this state, seems to me 
 a plain proposition. 
 
 The counsel has, however, with great industry and research, cited 
 a number of cases from our own courts and those in other states, 
 where this distinction, he claims, has been admitted, and in cases, 
 too, where the principles involved were similar to the case at bar (one 
 or two being, he says, precisely like it), and where it has been held 
 that in such cases, although the corporation was violating the law of 
 its being, yet no one but the state could take advantage thereof. 
 
 I think that, with the exception of one case, they were all entirely 
 different from this one, and the decisions were based upon a totally dif- 
 ferent, and probably a perfectly unassailable, ground. [Citing and 
 discussing Leazure v. Hillegas, 7 Serg. & R. 313; Baird v. Bank, 
 ii Serg. & R. 411 ; Runyan v. Coster, 14 Pet. 122 ; Jones v. Haber- 
 sham, 107 U. S. 174; Smith v. Shelley, 12 Wall. 358-361 ; Bogardus 
 v. Trinity Church, 4 Sand. Ch. 633; De Camp v. Dobbins, 29 N. 
 J. Eq. 36; Davis v. Railroad Co., 131 Mass. 258-273; Hayward v. 
 Davidson, 41 Ind. 212; Vidal v. Girard's Ex'rs, 2 How. 127; Bank 
 v. Whitney, 103 U. S. 99; Fortier v. Bank, 112 U. S. 439.] * * * 
 
 Although we never adopted or enacted the English statutes of mort- 
 main, yet in this, as in other states, we have a decided mortmain pol- 
 icy. It is found in our statute in relation to wills, prohibiting a devise 
 to a corporation unless specially permitted by its charter or by some 
 statute to take property by devise. 
 
 "It is a statute of mortmain, resting on a mortmain policy as dis- 
 tinctly as any act of the British parliament. * * * The necessity 
 is recognized of forbidding the acquisition by will, unless the legisla- 
 ture, in granting the charter, and in full view of the reasons for so 
 doing, think proper to confer the power in express terms." 
 
 The counsel claims, however, that a devise to a corporation vests 
 the title in it, so far as the question of capacity is concerned, whenever 
 it would in the case of a sale for a valuable consideration. Hence he 
 says that the cases of sales above cited are decisive of this, if they be 
 admitted as well decided. In the case of an executed sale, however, 
 the question of ultra vires, as set forth in the modern cases, comes in 
 play, and the question of a want of title in the corporation in such 
 case would not be permitted to be raised by the grantor, or his heirs, 
 because it would be against justice and would accomplish a legal 
 wrong. Whitney Arms Co. v. Barlow, 63 N. Y. 62. 
 
 The question of an executed gift without consideration by a donor, 
 by an absolute delivery to a corporation without power to take, is also 
 instanced, and the question is asked whether the title vests in such a 
 case in the corporation so that the donor or his heirs could not recover 
 it back, and if it do, the counsel asks where is the difference in the 
 two cases? It is time enough to decide such a case when it arises. 
 But it seems to me there is a decided difference. In the one case the 
 gift is made inter vivos by the absolute owner, and it is made effect- 
 ual as to him by a delivery. In such case it would seem that he 
 stands in no position to ask the aid of the court to get him out of a
 
 297 POWER TO ACQUIRE REAL PROPERTY. 1 039 
 
 situation into which he voluntarily entered with his eyes open, and 
 the court might well say to him that he stood in no position to attack 
 the right of his donee to property which he freely and absolutely gave 
 it. As to his heirs, it could be said that their ancestor had made a dis- 
 position of property which was absolutely his own in his lifetime, and 
 in such a way that he could not question its validity, and that as he 
 could not, they succeeding only to his rights, were alike disabled. 
 
 In the case of a devise, however, the case is essentially different. 
 The will does not take effect until the testator's death, and then, if 
 his property is not legally devised or bequeathed, no title vests for a 
 single moment in the devisee or legatee, but it vests instantly in the 
 heir or next of kin ; and the corporation claiming under the will asks 
 the aid of the law to give the property to it, and in so doing it must 
 show the authority it has to take. And if there were only a prohibi- 
 tion in words against holding the property, would the law not be do- 
 ing a vain thing in handing it over to a corporation which by the very 
 fact of holding would render itself liable to have its charter forfeited 
 on that account? Would not the prohibition against holding be prop- 
 erly and necessarily construed as a prohibition against taking also? 
 
 Is not this an argument against the right of the corporation to take, if 
 by holding it is thus rendered liable to such a penalty? And is it not 
 an argument in favor of the construction of the language in the charter 
 that the limitation upon the power to hold property is, under all the 
 circumstances, a limitation upon the power to take any more than it 
 can legally and properly hold ? * * * 
 
 Upon a review of the whole question as to the proper construction 
 of the legislation, general and special, affecting this university, I am 
 of the opinion that it had no power to take or hold any more real and 
 personal property than $3,000,000, in the aggregate. 
 
 Second. Coming to the conclusion I have, on the first branch of 
 the case, it becomes necessary to examine the second and only re- 
 maining question, viz. : Does this property, if taken and held by the 
 university, exceed the amount which bylaw it can hold? 1 * * * 
 This brings the property of the university, above set forth, up to more 
 than its permitted aggregate at the time of the decease of Mrs. Fiske, 
 and no debts to be deducted therefrom. Under such circumstances, 
 the university could not take the various legacies bequeathed to it by 
 her will. * * * 
 
 Affirmed. 
 
 'Part of the opinion relating to this question is omjtted. 
 
 Note.. Accord: 1857, Trustees v. Chamber's Ex., 3 Jones Eq. (N. C.) 253; 
 1867, Cromie v. Louisville, etc., Soc., 3 Bush (Ky.) 365; 1871, Chamberlain 
 v. Chamberlain, 43 N. Y. 424; 1879, De Camp v. Dobbins, 31 N. J. Eq. 671, 
 690; 1889, Wood v. Hammond, 16 R. I. 98; 1890, Cornell Univ. v. Fiske, 136 
 U. S. 152; 1894, Coggeshall v. Home for Children, etc., 18 R. I. 696. 
 
 See preceding case and note, contra.
 
 IO4O THE NORTHWESTERN UNION PACKET CO. V. SHAW. 298 
 
 Sec. 298. (2) To acquire personal property 
 ( I ) In general. 
 THE NORTHWESTERN UNION PACKET COMPANY v. SHAW. 1 
 
 1875. IN THE SUPREME COURT OF WISCONSIN. 37 Wis. Rep. 
 
 655-662. 
 
 [Appeal by plaintiff from judgment in a suit to recover $i,ooopaid 
 upon a contract and damages for its breach. The packet company 
 was organized in 1870, and from that time had been engaged in the 
 business of a common carrier upon the Mississippi, and also in buying, 
 selling and dealing in wheat, grain and produce generally; it con- 
 tracted to purchase 4,000 bushels of wheat from Shaw and paid him 
 $1,000 on account, the wheat to be delivered at a certain time and 
 place, but Shaw failed to deliver as agreed. The corporate charter 
 provided for owning and controlling vessels of various kinds for trans- 
 portation on the Mississippi river, etc., to own warehouses, depots, etc., 
 necessary for freighting, storing and forwarding property and persons, 
 with power to sell any of its property of every description, and to do any 
 and all acts and things necessary to an economical and successful 
 prosecution of said business, to borrow money for all its purposes, to 
 contract with any person in reference to the storing, forwarding or 
 freighting of any kind of property, or "to any and all business inci- 
 dental to, or arising from, the transportation of persons and property."] 
 
 LYON, J. * * * The question to be detei'mined is, whether 
 the plaintiff can lawfully buy and sell the produce of the country in 
 the same manner and to the same extent that a natural person may. 
 
 We think this question must be answered in the negative. There 
 is no necessary connection between the business of 'a common carrier 
 and that of buying and selling the commodities which the carrier 
 transports. Neither is the latter business necessarily or usually de- 
 pendent upon the former. The two are as essentially distinct as the 
 business of the earner and that of the producer. It will scarcely be 
 claimed that the plaintiff is authorized, under its articles of incorpora- 
 tion, to purchase large tracts of land on which to raise grain and 
 other produce to be stored in its warehouses and shipped over its 
 lines. If it may not do this, it is not perceived on what principle it 
 may purchase the commodities instead of raising them. We think 
 the principle is the same in both cases. Moreover, in view of the 
 fact that the transportation of the products of the country is mainly 
 controlled by powerful corporations representing immense aggrega- 
 tions of capital, there are reasons, if not of public policy, certainly 
 reasons which should have much weight with the legislature, for con- 
 fining common carriers to their legitimate business as carriers. At 
 least no forced construction of their charters should be sanctioned to 
 enable them to become producers or purchasers of such products. 
 
 1 Statement abridged, part of the opinion omitted.
 
 298 POWER TO ACQUIRE PERSONAL PROPERTY. 104! 
 
 By confining them to the proper business of common carriers, the 
 temptation to make unjust discriminations in the transportation of 
 their own property to the manifest injury and oppression of persons 
 having like property for transportation, can only be avoided. Hence, 
 while it is conceded that the legislature may confer upon a corpora- 
 tion common carrier the right of a natural person to buy and sell the 
 commodities which it transports, it must be held that until so con- 
 ferred the right does not exist. 
 
 We conclude that the contract set forth in the pleadings as to the 
 plaintiff, is ultra vires, and that no claim for damages resulting from 
 a breach thereof can be successfully asserted by either party. This 
 disposes of the counter-claim of the defendant, and of all claims of 
 the plaintiff except the claim to recover the $1,000 paid on account 
 of the attempted 'purchase of the wheat. * * * 
 
 [After holding that the $1,000 might be recovered in an action for 
 money had and received, and that the complaint stated facts justify- 
 ing this:] 
 
 Reversed and remanded. 
 
 Note. Personal property: Such personal property, but such only both as to 
 kind and amount, as is reasonably necessary for the corporate purposes, may 
 be lawfully acquired: 1858, Pearce v. R. Co., 21 How. (62 U. S.) 441; 1860, 
 Downing v. Road Co., 40 N. H. 230; 1875, Northwestern Packet Co. v. Shaw, 
 37Wis. 655; 1876, Farmers', etc., Bank v. Baldwin, 23 Minn. 198, 23 Am. 
 Rep. 683; 1877, Morgan v. Donovan, 58 Ala. 241; 1877, Franklin Co. v. Lew- 
 iston Sav. Inst., 68 Maine 43, 28 Am. Rep. 9; 1884, Central R. Co. v. Smith, 
 76 Ala. 572, 52 Am. Rep. 353; 1885, Day v. Buggy Co., 57 Mich. 146, 58 Am. 
 Rep. 352; 1888, Chewackla Lime- Works v. Dismukes, 87 Ala. 344; 1890, Jemi- 
 eon v. Citizens' Sav. Bank, 122 N. Y. 135, 19 Am. St.* Rep. 482; 1895, Boss- 
 hardt & W. Co. v. Crescent Oil Co., 171 Pa. St. 109; 1897, Farwell v. Wolf, 96 
 Wis. 10, 65 Am. St. Rep. 22, 37 L. R. A. 138; 1897, Mahoney v. Butte Hard- 
 ware Co., 19 Mont. 377; 1897, Malone v. Lancaster Gas L., etc., Co., 182 Pa. 
 St. 309; 1899, Central Ohio Nat'l Gas, etc., Co. v. Cap. City Dairy Co., 60 
 Ohio St. 96, 53 N. E. Rep. 711; 1899, State v. Debenture G. & L. Co., 51 La. 
 Ann. 1874, 26 So. Rep. <500; 1899, Herring v. Ruskin Co-op Assn., Tenn. 
 Ch. App. , 52 S. W. Rep. 327. 
 
 There, however, is no limit upon the amount of personal property that a 
 corporation may acquire or hold arising from the profits of carrying on prop- 
 erly its legitimate business. 
 
 Sec. 299. (2) Power to acquire its own shares. 
 ( i ) The English rule. 
 
 IN RE DRONFIELD SILKSTONE COAL COMPANY. 1 
 
 1880. IN THE HIGH COURT OF JUSTICE, CHANCERY DIVISION. L. 
 R. 17 Chancery Division 76-97. 
 
 JESSEL, M. R. The memorandum of association of a limited col- 
 liery company gave the company power to do all things which it should 
 consider conducive to the attainment of its objects, but did not in terms 
 
 1 Only the opinion of the master of the rolls is given. The statement of 
 facts is that given in the syllabus to the case. 
 
 63 WIL. CAS.
 
 104.2 IN RE DRONFIELD SILKSTONE COAL COMPANY. 299 
 
 give any power to purchase its own shares. The tenth clause of the 
 articles empowered the directors to purchase for the company any shares 
 in the company, and directed that the shares so purchased should be 
 dealt with as if they had never been issued, and that any profit aris- 
 ing on the reissuing or subsequent sale of such shares should be 
 deemed profits of the year in which they were reissued or sold. In 
 1872, disputes having arisen as to the conduct of the business, the di- 
 rectors agreed with W., the largest shareholder, who was also one of 
 the directors, to purchase for the company his shares, and also his in- 
 terest as landlord of the mines worked by the company. This ar- 
 rangement was confirmed by an extraordinary general meeting of the 
 company, and was carried into effect by an assignment of his interest 
 in the mines to the company for a specific sum, and by a transfer to 
 the company of his shares for another specific sum. The company 
 was entered in the share register as holder of these shares, and in all 
 the subsequent returns to the registrar of joint stock companies the 
 company was entered as such holder. The company for some time 
 was prosperous, but afterwards fell into difficulties, and in 1879 an 
 order was made for winding it up. * * * 
 
 I now come to the point as to the surrender of shares a point 
 upon which I feel much more difficulty. It is not for me to say what 
 the limits of surrender are which are allowable by the act. As I read 
 this same judgment of Lord Justice James, 1 certain surrenders are 
 allowable. 
 
 I can imagine one where the shares would be liable to forfeiture, 
 and it is the shortest way to surrender them ; then the same result 
 would follow. But I am by no means prepared to say that there is a 
 right under the term "surrender" to buy up the shares, and to have 
 them surrendered to the company as on an ordinary purchase for 
 money. That, I think, is clearly beyond the limit; but it is not nec- 
 essary for me to say what is exactly within the limit, because each 
 case as it arises must be decided on its own merits. I can well imag- 
 ine that certain cases are clearly within the limit, and ought not to be 
 treated as a diminution of capital, and that other cases are clearly 
 beyond the limit such as the cases I have put of an ordinary pur- 
 chase or ordinary traffic in shares, although the term "surrender" 
 may be employed instead of the transaction taking the form it does 
 here, of an actual transfer to the company. 
 
 Having dealt with the case so far, let us see what the twelfth sec- 
 tion of the companies act, 1862, must, as I think, mean. The sug- 
 gestion made on the part of Mr. Ward is this, that all the act of 
 parliament means is that the company must not alter the terms of the 
 memorandum as to the nominal amount of the capital. It would be 
 a very singular result if that were so, because it would come to this 
 the company may destroy the whole of its real capital without altering 
 its nominal amount. I will put the case in this way: The company 
 has a million of capital in ^10 shares, and has ^100,000 paid upon 
 the shares, leaving ^900,000 remaining to be paid ; there is a power 
 
 1 Hope v. International Finan. Soc., 4 Ch. D. 327, 336.
 
 299 POWER TO ACQUIRE PERSONAL PROPERTY. 1043 
 
 to accept a surrender of shares ; the company resolve at a general 
 meeting to retain one share for each of the seven directors, and to ac- 
 cept a surrender of all the other shares. I am putting an extreme case 
 to try the question. According to the argument of Mr. Ward, that is 
 perfectly valid ; so that the result is that the primary capital of the 
 company is reduced from ,900, ooo, remaining to be called up, to 
 ^70, if there are seven directors. That is an extreme case, no doubt, 
 but it shows to what an absurdity you would reduce the provisions of 
 the act of parliament if that were allowed. It can not be said that 
 the conditions of the memorandum mean that the company may in 
 effect destroy the nominal capital ; that it can not so mean is, I think, 
 clear from the words of the section. The company may increase its 
 capital by the issue of new shares to such an amount as it thinks ex- 
 pedient, or it may consolidate and divide its capital to a larger amount 
 than the existing shares, or it may convert the paid-up shares into 
 stock. If the section were only to apply to nominal capital, what is 
 the meaning of the power for the company "to convert its paid-up 
 shares into stock" ? What the section means is that the company 
 shall not convert the unpaid-up shares into stock. That implies, as it 
 has always been held to imply, that the company can not turn the un- 
 paid-up shares into stock, so as to exclude the right of making further 
 calls. Therefore, the section must apply to the issued capital, and 
 not merely to the nominal capital ; and it has always been so treated, 
 as far as I know. 
 
 There is the additional observation to be made that the subsequent 
 acts of parliament, namely, the acts of 1867 and 1877, would have 
 singularly little meaning if it were not so, for they contain most elab- 
 orate provisions as regards the mode of increasing the capital, and re- 
 ducing the capital, and as regards the trading capital and the issued 
 capital. The provisions of the section, I admit, are difficult to con- 
 strue if you read them word by word, but I do not think they are so 
 difficult to construe if you look at the meaning of the whole of the acts 
 as to the formation of these companies. If they are to be taken to apply 
 only to the amount of the nominal capital, I must say that the acts of 
 1867 and 1877 are the most extraordinary legislative productions I ever 
 saw. But if you read the section the other way, and say that it means 
 that the conditions in the memorandum relate to the issued capital, 
 then the subsequent acts are perfectly intelligible. Let us now look 
 at the ninth section of the act of 1867: "Any company limited by 
 shares may, by special resolution, so far modify" what? "the con- 
 ditions contained in its memorandum of association, if authorized so 
 "to do by its regulations as originally framed or as altered by special 
 resolution, as to reduce its capital." What capital? Does that mean 
 nominal capital? It is plain that it means the trading capital. There- 
 fore when you look at the ninth section it is clear that the legislature 
 considered the twelfth section of the original act somehow or other 
 prohibitive, and that a new act was required to authorize a company 
 to reduce its capital. Then there are provisions which the legislature
 
 IO44 IN RE DRONFIELD SILKSTONE COAL COMPANY. 299 
 
 considered necessary for the protection of creditors in case of a reduc- 
 tion of capital. 
 
 But it is said a surrender is no more a diminution of capital than is 
 a forfeiture, and the creditors are not injured by a surrender. That, 
 however, is not so. If the company could, either by taking a surren- 
 der or by a purchase of shares, actually diminish the capital, not in 
 the shape of dealing with a solitary individual shareholder who can 
 not pay, but to a greater extent, what would be the result? I am not 
 now speaking of future creditors, who must be held to take with notice 
 of- what was on the register. What would be the result? Every 
 creditor who could not enforce his demand would lose it. Suppose, 
 for instance, the vendor, having sold the mine to the company, were 
 to take a mortgage of it not to be called in for five years if the interest 
 were duly paid, and the directors then found that they were carrying 
 on business at a loss and could take a surrender of all the shares ex- 
 cept seven, then the mortgagee-creditor would be actually without 
 remedy, because he could not apply to have the company wound up 
 until the mortgage debt was due. That would not be until the end of 
 five years, by which time all the shareholders would have been off as 
 past shareholders for probably four years. So that it is not correct to 
 say that in case of surrender the creditors are protected, because they 
 may all lose all remedy whatsoever, unless indeed their money becomes 
 payable within a twelve month after the transaction takes place. 
 
 It seems to me that w r hen you look at what I may call the purview 
 of the act, it can, not be possible that the company can buy up its own 
 shares in this way so as to destroy the shares in every sense and for 
 every purpose and intent, except that they may, if- they can, reissue 
 or transfer the shares to new shareholders during the intervening period 
 that the capital is diminished, if not absolutely extinguished. That be- 
 ing my view of the whole of the act, and I may say of the result of 
 the decisions, which really have any bearing on the subject-matter I 
 have to consider, I think the present transaction was a diminution of 
 the capital of the company which is prohibited by the companies act, 
 1862, and the transaction is, therefore, void on that ground also. 
 
 The transfer being void, and, if I may say so, void at law, although 
 that expression has no longer the meaning that it formerly had, the 
 result is that Mr. Ward remains a contributory ; and that is the only 
 point I have now to decide. * * * 
 
 [This decision of the master of rolls was appealed from and over- 
 ruled, on the appeal. But the views of Jessel, M. R., of the general 
 doctrine of the company's capacity to purchase its own shares, given 
 here, were taken and applied in the later case of Trevor v. Whit- 
 worth, in the house of lords, L. R. 12 Appeal Cases, 409, holding 
 that a limited "company has no power under the companies acts to 
 purchase its own shares." See particularly the opinion of Lord Mac- 
 naghten, in Trevor v. Whitworth, L. R. 12 App. Cas. 432-438.] 
 
 Note: (1) An English company has no right to purchase its shares unless 
 >ecially authorized: 1870, In re London, Hamburg, etc., Bank, L. R. 5 
 ti. App. Cas. 444, 39 L. J. Ch. 598 ; 1870, In re United Service Co., L. R. 5
 
 300 POWER TO ACQUIRE PERSONAL PROPERTY. 1045 
 
 Ch. App. Cas. 707, 39 L. J. Ch. 730, 23 L. T. 331 ; 1876, Hope v. International 
 F. Soc., 35 L. T. 623; 1887, Trevor v. Whitworth, 12 App. Cas. 409, 57 L. J. 
 Ch. 28, 57 L. T. 457 ; 1888, In re Walker & Hacking, 57 L. T. 763. 
 
 (2) But may if specially authorized. 1874, In re County Palatine, L. & D. 
 Co., App. Cas. L. R., 9 Ch. 54, 43 L. J. Ch. 578, 29 L. T. 707 ; 1886, In re Bal- 
 gooley Distillery Co., 17 L. R. Ir. 239; 1889, In re General Finance Co., 23 L. 
 R. Ir. 173; 1892, In re Sovereign, L. A. Co., 3 Ch. 279, 62 L. J. Ch. 36, 67 L. 
 T. 336. 
 
 (3) As to what is such a purchase, see 1871, Phosphate Lime Co. v. Green, 
 L. R., 7 C. P. 43, 25 L. T. 636; 1874, In re County Palatine, L. & D. Co., L. R., 
 9 Ch. 54, 43 L. J. Ch. 578, 29 L. T. 707; 1893, In re Denver Hotel Co., 1 Ch. 
 495, 62 L. J. Ch. 450, 68 L. T. 8. 
 
 Sec. 300. (2) American rule: Theories. 
 
 (a) May (with certain exceptions) acquire its own shares, un- 
 less expressly or impliedly restrained. 
 
 CHAPMAN v. IRON CLAD RHEOSTAT COMPANY. 
 
 1898. IN THE SUPREME COURT OF NEW JERSEY, 62 N. J. Law 497, 
 41 Atl. Rep. 690, 9 A. & E. C. C. (N. S.) 769. 
 
 DIXON, J. The declaration alleges that it was agreed between the 
 plaintiff and the defendant, the latter being a corporation organized 
 under the laws of this state, that the defendant should employ the 
 plaintiff at a regular weekly salary; that the plaintiff should purchase 
 and hold during his employment eighty shares of stock in the defend- 
 ant company; and that if the defendant should discharge the plaintiff 
 from its employ, it would purchase said stock from the plaintiff at par. 
 The declaration further alleges that in pursuance of said agreement, 
 the plaintiff entered into the employ of the defendant at a weekly sal- 
 ary; that he purchased said stock, and held it during his employment, 
 and that the defendant discharged him from the employment against 
 his will ; that thereupon the plaintiff demanded of the defendant that 
 it should purchase the said stock from him at par, and the defendant 
 refused to do so. To this the defendant demurs, insisting that the de- 
 fendant's contract for the purchase of stock was, on its face, ultra 
 vires and, therefore, not emorcible against it. 
 
 In England the general rule seems to be that corporations can not 
 purchase their own stock without express authority from the statute, 
 though perhaps even there this rule would not be applied if it appeared 
 that the object of the purchase was not merely to traffic in the stock 
 or to diminish the amount of the capital, but to accomplish some legit- 
 imate corporate purpose. Hope v. Society, 4 Ch. Div. 327. But in 
 the United States the weight of authority seems to be in favor of the 
 view that corporations have an implied power to purchase shares in 
 their own capital stock, provided, of course, no illegitimate design ap- 
 pears. Many of the cases are cited in the notes of 23 Am. & Eng.
 
 1046 IN RE DRONFIELD SILKSTONE COAL COMPANY. 300 
 
 Enc. Law, 676. This question, as it turns on common-law principles, 
 seems not to have been judicially decided in New Jersey, nor need it 
 now be; for the provisions of our corporation act (P. L. 1896, p. 
 277), by which (section 20) the shares of stock in every corporation 
 are declared to be personal property, and (section i) every corpora- 
 tion is vested with power to purchase such personal estate as the pur- 
 poses of the corporation shall require, except (section 3) certain desig- 
 nated sorts of personal property, which do not embrace shares of its 
 own capital stock, coupled with those provisions which recognize the 
 power of corporations to own capital stock (sections 29, 38), plainly 
 imply a legislative grant of the necessary power in all cases where the 
 purposes of the corporation require it. In the present case the fact 
 that the corporation exerted the power in order to secure the services 
 of the plaintiff is prima facie sufficient indication that the purpose of 
 the corporation required it. 
 
 There is also another principle standing in the defendant's way. 
 The plaintiff has fully performed the contract on his part, and can not 
 be restored to his former status, nor be honestly dealt with otherwise 
 than by holding the defendant to performance of its share of the bar- 
 gain. Under these circumstances the plea of ultra vires is inadmissi- 
 ble. Camden & A. R. Co. v. May's Landing & E. H. C. R. Co., 
 48 N. J. Law 530, 7 Atl. 523. The plaintiff is entitled to judgment 
 on the demurrer. 
 
 Note. Accord: 1828, Hartridge v. Rockwell, 1 R. M. Charlt. (Ga.) 260; 
 1831, Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 84; 1846, Bank 
 v. Champlain Trans. Co., 18 Vt. 131, 139; 1858, City Bank v. Bruce, 17 N. Y. 
 507; 1873, Dupeev. Boston Water Power Co., 114 Mass. 37; 1 877, Chicago P. & 
 S. W. R. Co. v. Marseilles, 84 111. 643; 1877, Chetlain v. Repub. L. I. Co., 86 
 111.220; 1878, Iowa Lumber Co. v. Foster, 49 Iowa 25, 31 Am. Rep. 140; 1881, 
 Fraser v. Ritchie, 8 111. App. 554; 1882, Clapp v. Peterson, 104 111. 26; 1888, 
 Morgan v. Lewis, 46 Ohio St. 1, 8; 1889, First National Bank v. Salem, etc., 
 Co., 39 Fed. Rep. 89; 1889, State v. Minnesota, etc., Co., 40 Minn. 213; 1890,. 
 Rollins v. Shaver W. Co., 80 Iowa 380, 20 Am. St. Rep. 427 ; 1890, Eggman v. 
 Blanke, 40 Mo. App. 318; 1890, Thompson v. Moxey, 47 N. J. Eq. 538; 1890, 
 Republic L. Ins. Co. v. Swigert, 135 111. 150; 1892, Yeaton v. Eagle, etc., Co., 
 4 Wash. St. 183; 1894, N. E. Trust Co. v. Abbott, 162 Mass. 148, 27 L. R. A. 
 271 ; 1895, Lowe v. Pioneer Threshing Co., 70 Fed. Rep. 646; 1895, Browne v. 
 St. Paul, etc., 62 Minn. 90; 1895, Dock v. Cordage Co., 167 Pa. St. 370; 1896, 
 Vent v. Coffee Co., 64 Minn. 307; 1897, Vercoutere v. Golden S. L. Co.. 116 
 Cal. 410; 1897, Shoemaker v. Washburn, etc., Co., 97 Wis. 585; 1899, West 
 v. Averill Grocery Co., 109 Iowa 488, 80 N. W. Rep. 555. See following cases 
 and notes. 
 
 Shares of its own stock, held by the corporation, or in trust for it, can not 
 be voted-: 1821, United States v. Columbia, etc., Ins. Co., 2 Cr. C. C. 266, Fed. 
 Cas. 14, 840; 1826, Ex Parte Holmes, 5 Cow. (N. Y.) 426; 1869, Am. Railway 
 Frog Co. v. Haven, 101 Mass. 398, 3 Am. Rep. 377 ; 1869, Brewster v. Hartley, 
 37 Cal. 15, 99 Am. Dec. 237; 1876, State v. Smith, 48 Vt. 266; 1881, Vail v. 
 Hamilton, 85 N. Y. 453 ; 1888, Allen v. De Lagerberger, 20 W. L. B. (Ohio) 
 368.
 
 3OI POWER TO ACQUIRE PERSONAL PROPERTY. 1 047 
 
 Sec. 301. Same. Exceptions to rule allowing acquisition of its 
 own shares. 
 
 PRICE v. PINE MOUNTAIN IRON AND COAL COMPANY. 
 
 1895. IN THE COURT OF APPEALS OF KENTUCKY. 32 S. W. Rep. 
 
 267-268. 
 
 [Price sued the company on a. note given by it for $8,500 in pay- 
 ment of 179 shares at $50 each, of the stock of the company. The 
 company had concluded to sell out its property ; propositions were 
 submitted by Churchill, and by Calhoun respectively, the former be- 
 ing much the more advantageous to shareholders, but the latter claimed 
 to have an option on the property. Perhaps this was not well for- 
 warded, but it was, nevertheless, thought best to have him withdraw 
 his claim, and in order to do so, the company agreed to sell him within 
 ten days 2,500 shares of its stock at $25 ; the company sought to pur- 
 chase shares in the market, but failed to get enough ; a meeting was 
 held at which plaintiff was present, and at which it was proposed that 
 the directors and such shareholders as would should sell to the com- 
 pany enough to have the deal go through. This was objected to by 
 the president as being illegal, and the opinion was given by a lawyer 
 present that the giving of notes for the purchase of its shares by the 
 company itself would be illegal, and would not be upheld, unless the 
 deal was successful. 
 
 The company had no money to invest in its shares, yet it was rea- 
 sonably certain that if the sale was made to Churchill as proposed, it 
 would be beneficial to all concerned, even if the company had to pur- 
 chase 2,500 shares in order to complete the sale. The scheme of sale 
 to Churchill was not consummated. The lower court found for the 
 defendant, and plaintiff appeals.] 
 
 HAZELRIGG, J. * * * It is insisted by the appellant and we 
 are not unmindful of the strength of his contention that as he was 
 not a director or officer of the company, as the note was executed in 
 good faith by the corporation in an effort to benefit all its stockhold- 
 ers, and is unconditional in its terms, and as he was an outsider, and 
 wholly without notice of the existence of any contingency upon which 
 the validity of the note depended, not being present at any meeting 
 or discussion of this matter, as he testifies, therefore the company, 
 not being prohibited by its charter from buying its own stock, is 
 bound by its purchase from him, whatever maybe said by its dealings 
 with its directors. We are not satisfied, however, even regarding 
 the appellant as ignorant of the terms on which the notes were exe- 
 cuted, and the officers as attempting in the best of faith to forward 
 the interests of all stockholders alike, that the company may not elect 
 not to be bound by the contract. Corporations ought not to be allowed 
 to speculate in their own stocks; and, while they may not always do 
 an illegal thing in buying in their mvn stock, such a transaction 
 
 1 Statement abridged ; part of opinion omitted.
 
 1048 PRICE V. PINE MOUNTAIN IRON AND COAL CO. 302 
 
 must be not only in entire good faith, but the exchange must be of 
 equal value, and the transaction free from all fraud, actual or con- 
 structive, and when the corporation is neither insolvent nor in pro- 
 cess of dissolution ; and, further, the rights of creditors are not to 
 be injuriously affected. Such is the principle laid down in Clapp v. 
 Peterson, 104 111. 30, a case cited by this court with approval in Jef- 
 ferson v. Burford, 17 S. W. Rep. 855. We may add to these quali- 
 fications that the contract of exchange ought not to be to the advan- 
 tage of a few favored stockholders, to.the injury of the great body of 
 them. In this case how much soever the apparent intention was to 
 benefit all, the result of the contracts, if enforced, is disastrous to the 
 last degree to the main body of the stockholders. Under this state 
 of case, the contracts are, at least, voidable at the option of the com- 
 pany if repudiated within a reasonable time. See I Beach Priv. 
 Corp., 242. 
 Affirmed, 
 
 Note. Corporation can not purchase its own stock to the injury of cred- 
 itors' security: 1879, State v. Oberlin, etc., Assn., 35 Ohio St. 258, 263; 1880, 
 Peterson v. 111. L. & L. Co., 6 111. App. 257; 1887, St. Louis C. Mfg. Co. v. 
 Hilbert, 24 Mo. App. 338; 1887, Farnsworth v. Robbins, 36 Minn. 369; 1890, 
 Commercial Natl. Bank v. Burch, 40 111. App. 505; 1892, Blalock v. Kerners- 
 ville Mfg. Co., 110 N. C. 99; 1892, In re Columbian Bank, 147 Pa. St. 422; 1892, 
 Commercial Bank v. Burch, 141 111. 519. 
 
 Or to the injury of shareholders: 1895, Price v. Pine, etc., Co., 32 S. W. 
 Rep. 267, supra; 1897, Augsburg, etc., Co. v. Pepper, 95 Va. 92. 
 
 But a purchase of stock in itself by a corporation is not necessarily a reduc- 
 tion of its capital : 1858, City Bank v. Bruce, 17 N. Y. 507; 1891, Jefferson v. 
 Burford, 17 S. W. Rep. (Ky.) 855; 1897, Western, etc., Co. v. Des Moines, 
 etc., Bank, 103 Iowa 455 ; 1899, Howe G. & M. Co. v. Jones, 21 Tex. Civ. App. 
 198, 51 S. W. Rep. 24. 
 
 But see 1892, In re Sovereign L. A. Co., 3 Ch. 279, 62 L. J. Ch. 36, 67 L. T. 
 336, contra. 
 
 See case preceding, and case following, with notes. 
 
 Sec. 302. Same. 
 
 (b) May not, unless necessary to prevent loss to the company. 
 
 COPPIN v. GREENLEES & RANSOM COMPANY. 1 
 
 1882. IN THE SUPREME COURT OF OHIO. 38 Ohio St. Rep. 275- 
 281, 43 Am. Rep. 425. 
 
 [Suit by Coppin for specific performance or for damages for non- 
 performance of a contract between him and the company whereby it 
 agreed to convev to him two lots at $1,800, and do manufacturing 
 work to the extent of $1,500 in consideration of the transfer by Cop- 
 pin of 33 shares of $100 each of the company's stock to the com- 
 pany. It was alleged that the plaintiff had for a time been employed 
 
 'Statement abridged; arguments omitted.
 
 3 2 POWER TO ACQUIRE PERSONAL PROPERTY. 
 
 by the company, and while so employed had acquired the stock; 
 that it had been a custom of the company to buy back the stock of 
 those of its servants when they ceased to work for the company, and 
 that the foregoing 1 contract was made in accordance with that custom. 
 The trial court found for plaintiff, but this was reversed by the dis- 
 trict court, on the ground that the facts did not show a sufficient cause 
 of action. To reverse this the case was taken to the supreme court.] 
 
 MclLVAiNE, J. Whether the defendant corporation was bound by 
 its executory agreement with the plaintiff to purchase shares of its own 
 stock, under the circumstances detailed in the petition, was, undoubt- 
 edly, the question upon which the case turned in the district court. 
 
 The power of a trading corporation to traffic in its own stock, where 
 no authority to do so is conferred upon it by the terms of its charter, 
 has been a subject of much discussion in the courts ; and the conclu- 
 sions reached by different courts have been conflicting. Of course, 
 cases wherein the power is found to exist by express or implied grant 
 in the charter, furnish no aid in the solution of the question before us; 
 unless the claim of the plaintiff can be sustained, that such power was 
 conferred on the defendant by section 63 of the corporation act of 1852 
 (Swan & C. St. 301), as amended, which confers on manufacturing 
 corporations the powers enumerated in section 3 of the act, and among 
 others, the power ",to acquire and convey at pleasure, all such real 
 and personal estate as may be necessary or convenient to carry into 
 effect the objects of the corporation." We think, however, that this 
 claim can not be maintained. The sole object of the defendant organ- 
 ization was "for manufacturing purposes;" and it can not be said, in 
 any just sense, that the power to acquire or convey its own stock was 
 either necessary or convenient "for manufacturing purposes." 
 
 The doctrine that corporations, when not prohibited by their char- 
 ters, may buy and sell their own stocks, is supported by a line of 
 authorities; and prominent among them may be mentioned the cases 
 of Dupee v. Boston Water Power Co., 114 Mass. 37, and Chicago, 
 P. & S. W. R. Co. v. Town of Marseilles, 84 111. 145. But never- 
 theless, we think the decided -weight of authority, both in England 
 and in the United States, is against the existence of 'the power unless 
 conferred by express grant or clear implication. The foundation 
 principle upon which these latter cases rest is that a corporation pos- 
 sesses no powers except such as are conferred upon it by its charter, 
 either by express grant or necessary implication ; and this principle 
 has been frequently declared by the supreme court of this state ; and 
 by no court more emphatically than by this court. It is true, how- 
 ever, that in most jurisdictions, where the right of a corporation to 
 traffic in its own stock has been denied, an exception to the rule has 
 been admitted to exist, whereby a corporation has been allowed to take 
 its own stock in satisfaction of a debt due to it. This exception is 
 supposed to rest on a necessity which arises in order to avoid loss ; 
 and was recognized in this state as early as Taylor v. Miami Export- 
 ing Co., 6 Ohio 176, and has been incidentally referred to as an ex-
 
 1050 COPPIN V. GREENLEES AND RANSOM COMPANY. 302 
 
 isting right since the adoption of our present constitution. State v. 
 Building Ass'n, 35 Ohio St. 258. 
 
 But, however that may be, the right of a corporation to traffic in 
 its own stock, at pleasure, appears to us to be inconsistent with the 
 principle of the provisions of the present constitution (article 13, 3), 
 which reads as follows: "Dues from corporations shall be secured 
 by such individual liability of stockholders, and other means, as may 
 be prescribed by law; but, in all cases, each stockholder shall be lia- 
 ble, over and above the stock by him or her owned, and any amount 
 unpaid thereon, to a further sum, at least equal in amount to such 
 stock." Now 7 , it is just as plain, that a business or trading corpora- 
 tion can not exist without stock and stockholders, as it is that the cred- 
 itors of such corporations are entitled to the security named in the 
 constitution. State v. Sherman, 22 Ohio St. 411. The corporation 
 itself can not be a stockholder of its own stock within the meaning of 
 this provision of the constitution. Nobody will deny this proposition. 
 And if a corporation can buy one share of its stock at pleasure, why 
 may it not buy every share ? If the right of a corporation to purchase 
 its own stock at pleasure exists and is unlimited, where is the provis- 
 ion intended for the benefit of creditors? This is not the security to 
 which the constitution invites the creditors of corporations. I am 
 aware, that the amount of stock required to be issued is not fixed by 
 the constitution or by statute, and also that provision is made by stat- 
 ute for the reduction of the capital stock of corporations;- but of these 
 matters, creditors are bound to take notice. They have a right, how- 
 ever, to assume that stock once issued, and not called back in the 
 manner provided by law, remains outstanding in the hands of stock- 
 holders liable to respond to creditors to the extent of the individual lia- 
 bility prescribed. In this view it matters not whether the stock pur- 
 chased by the corporation that issued it becomes extinct, or is held 
 subject to be reissued. It is enough to know that the corporation, as 
 purchaser of its own stock, does not afford to creditors the security 
 intended. And surely, if the law forbids the organization of a corpo- 
 ration without stock, because the required security is not furnished, it 
 can not be that, having brought the corporation into existence, it in- 
 vests it with power to assume, at pleasure, the identical character or 
 relation to the public that was an insurmountable objection to the 
 giving .of corporate existence in the first place. 
 
 Plaintiff in error lays much stress on the averments in the petition, 
 that it had been the custom of the corporation that its officers and 
 others, actively engaged in its service, should be holders of shares of 
 its stock, and upon ceasing to be connected with the company such 
 persons had been accustomed to sell, and the company to buy, such 
 stock; and that the plaintiff had purchased the stock for the price of 
 which suit was brought while in the employment of defendant. 
 
 We can not see why these averments should take the case out of the 
 general rule. 
 
 If it were averred that the plaintiff had purchased this stock from 
 the defendant, or from others, under an agreement with the company
 
 303 POWER TO ACQUIRE PERSONAL PROPERTY. IO5I 
 
 that it would buy the same from him when he quit its employment, or 
 if the contract of purchase by the defendant had been executed, very 
 different questions would arise. 
 
 It is not even averred that the plaintiff relied upon such custom, 
 either in making the purchase or the sale of the stock; so that, in fact, 
 he is unaffected by the alleged custom. But if such custom had been 
 relied on by the plaintiff when he purchased the stock, it would not 
 have made the executory contract of the defendant to buy the stock 
 binding, which, without such custom, would be void. The usage of 
 a corporation does not become the law of its existence, or the meas- 
 ure of its powers. The general law of the state, of which all persons 
 are presumed to have knowledge, is the source and limit of all its 
 powers and duties ; and these can not be varied either by usage or con- 
 tract. The doctrine of estoppel has no application in the case. Nor 
 is there any such equity in the case as would have arisen between the 
 parties in case the contract had been executed. 
 
 Judgment affirmed. 
 
 Note. Accord: 1833, Taylor v. Miami Ex. Co., 6 Ohio 176, 218; 1854, Bar- 
 ton v. Port Jackson, etc., Co., 17 Barb. 397; 1875, Currier v. Lebanon State 
 Co., 56 N. H. 262; 1875, First Natl. Bank v. Exchange, etc., Bank, 92 U. S. 
 122; 1877, German Sav. Bank v. Wulfekuhler, 19 Kan. 60; 1878, Hubbard 
 v. Riley, 3 W. L. B. (Ohio) 434; 1879, Abeles v. Cochran, 22 Kan. 405; 1882, 
 Coppin v. Greenlees, etc., Co., 38 Ohio St. 275, 43 Am. R. 425, supra; 1884, 
 Crandall v. Lincoln, 52 Conn. 73 ; 1887, St. Louis C. M. Co. v. Hilbert, 24 Mo. 
 App. 338; 1888, Shaw v. Ohio Edison, etc., Co., 19 W. L. B. (Ohio) 292; 
 1895, Adams, etc., W. Co. v. Deyette, 8 S. D. 119; 1896, Barto v. Nix, 15 
 Wash. 563, 46 Pac. Rep. 1033; 1897, Hamor v. Taylor-Rice, etc., Co., 84 Fed. 
 Rep. 392; 1897, St. Louis Rawhide Co. v. Hill, 72 Mo. App. 142; 1898, Mer- 
 chants' Natl. Bank v. Overman, 17 Ohio C. C. 253; 1899, Herring v. Ruskin 
 Co-op. Assn., Tenn. Ch. App. , 52 S. W. Rep. 327. 
 
 See preceding cases and notes. 
 
 Sec. 303. ( 3 ) Power to acquire shares of stock in other corpo- 
 rations. 
 
 I. The English rule. 
 
 IN RE BARNED'S BANKING COMPANY. 1 
 Ex PARTE THE CONTRACT CORPORATION. 
 
 1867. IN ENGLISH CHANCERY APPEALS. L. R. 3 Ch. App. Cas. 
 
 105-118. 
 
 [Appeal by the official liquidator of The Contract Corporation from 
 the decision of the master of the rolls, who had placed its name on the 
 list of contributories to the banking company, as a contributory upon 
 368 shares owned by it.] 
 
 LORD CAIRNS, L. J. The first objection taken to the order under 
 
 1 Statement abridged ; only part of opinion given ; arguments omitted.
 
 1052 IN RE BARNED'S BANKING COMPANY. 303 
 
 appeal was that it was ultra "vires The Contract Corporation to 
 take shares in any other trading coiporation, and to apply its funds in 
 payment for those shares. Generally speaking, this would be so. It 
 is at first sight beyond the province of one trading corporation to be- 
 come a shareholder in another, and to apply its funds for that pur- 
 pose. But here one of the objects of The Contract Corporation, as 
 defined by its memorandum of association, was "to purchase or ac- 
 cept any obligations, bonds, debentures, notes and shares in any for- 
 eign or English company, and to negotiate the sale of any such secu- 
 rities." It appears to me. that in applying for and accepting shares 
 in Earned 's Banking Company, The Contract Corporation, Limited, 
 was strictly and to the letter complying with and acting within 
 these terms. If it were necessary to make this power still clearer, the 
 forty-seventh clause of the articles of association provides that the 
 directors may invest any of the money of the corporation on such se- 
 curities (other than the corporation's own shares) as they, the direc- 
 tors, may think desirable, plainly implying that, although they might 
 not invest their money upon the purchase or allotment of their own 
 shares, they might -invest them upon the allotment or purchase of 
 shares ejusdem generis in other companies. 
 
 The second argument was, that even assuming that, according to 
 the constitution of the contract corporation, it was not ultra vires to 
 invest their money in shares of another trading company ; yet that 
 under the act of 1862 one trading corporation could not become a 
 member of another trading corporation. Now, if that argument is 
 to prevail, it must be upon the words of the act of parliament of 
 1862, because there is no apparent or prima facie objection to a 
 corporation so joining with another corporation in trade. A trading 
 corporation, as we all well know, may enter into trade or partnership 
 along with an individual. There is no reason at common law. so far 
 as I know, why one corporate body should not become a member of 
 another corporate body. Other acts of parliament relating to com- 
 panies appear to assume that corporations may become members of 
 and shareholders in companies. For example, the general act, the 
 companies clauses consolidation act of 1845, provides, in the inter- 
 pretation clause, that "shareholder" in that act shall include a cor- 
 poration; and the chartered companies act, i Viet., c. 73, expressly 
 points out that the crown may grant a charter to a trading corpora- 
 tion, the shareholders in which may themselves be corporate bodies, 
 and whose liability under that charter may be limited. Now, looking 
 to the words of the act of 1862, it is said, no doubt justly, that they 
 appear throughout to point to person, and to the executors and ad- 
 ministrators of persons, as if the shareholders were all to be persons 
 in their natural capacity. But even in this act there are traces that the 
 term "shareholder" and the word "persons" must have been in- 
 tended to be used in a larger sense, for in the fiftieth and fifty-first 
 clauses provision is made for the determination of questions of con- 
 siderable importance by general meetings, and by votes to be given 
 at those meetings, either in person or by proxy, in cases where, by
 
 303 POXYKR TO ACQUIRE PERSONAL PROPERTY. IO53 
 
 the regulations of the company, proxies are allowed, and on turning 
 to the forms in the schedule, which may be adopted bv any company 
 for its regulation, we find, in the forty-ninth clause of table A. a pro- 
 vision that the instrument appointing a proxy shall be in writing un- 
 der the hand of the appointer; "or if such appointer is a corpora- 
 tion, under their common seal." Form B contains a similar clause 
 (clause 22), as do also the forms in the schedule to the act of 1865. 
 It would, therefore, appear to have been in the contemplation of the 
 legislature that the appointer of a proxy might be a corporation; and 
 inasmuch as the appointer was to be a shareholder, that a share- 
 holder might be a corporate body. 
 
 The case, however, does not rest there. The act of 1862 is an act 
 amending and consolidating the whole of the prior laws with regard 
 to the joint stock companies. Among other acts of parliament re- 
 pealed by the act of 1862 are 7 and 8 Viet., ch. no (the joint stock 
 companies act of 1844), and n and 12 Vict.,ch. 45 (the winding-up 
 act of 1848). The interpretation clause in each of those acts pro- 
 vided that the word "person" throughout the act should include bodies 
 politic or corporate, whether sole or aggregate. In the present act of 
 1862 there is no interpretation clause, but section 180 and the follow- 
 ing sections provide that companies formed under the repealed act of 
 the 7 and 8 Viet., ch. no, and under the chartered companies act, i 
 Viet., ch. 73, niay be registered under this act of 1862, and that before 
 registration they must send in a list showing the names, addresses and 
 occupations of all persons who on a certain day were members of the 
 company, and when so registered they are to become subject in eveiy 
 respect to the act of 1862. But the company which was thus to regis- 
 ter itself, and thus to send in a list of its shareholders to the registrar 
 under the act of 1862, might be a company entitled to have and hav- 
 ing among its shareholders corporate bodies, whether sole or aggre- 
 gate, and they would become members of the company registered 
 under that act of 1862. It would, therefore, be necessary, in reading 
 the act of 1862, with regard to a company of that kind, to read the 
 word "person" as including bodies politic. 
 
 So also, on turning to section 199, and the following sections, we 
 find provisions for the winding up of joint stock companies formed un- 
 der 7 and 8 Viet., c. no, and provisions which, as regards the process 
 of winding up, are identical with provisions applicable to companies 
 formed for the first time under the act of 1862. There again the 
 whole of those provisions, though apparently pointing to persons and 
 individuals, must, of necessity be read as applying to corporate bodies 
 which should be shareholders under the former act of parliament. 
 Now, I think the conclusion irresistible, that if in all these sections 
 to which I have referred, beginning with section 180, and ending 
 with section 200, the general words used must be read as comprising 
 bodies corporate which are shareholders, there is no reason why, 
 throughout the whole of the act, from the beginning to the end, the 
 same words should not be read in the same way, and be held to in- 
 clude bodies corporate. It is satisfactory to find that the conclusion
 
 IO54 PEABODY V. THE CHICAGO GAS TRUST COMPANY. 304 
 
 at which I have arrived tallies with the conclusion which has been ar- 
 rived at in several cases, because instances were mentioned, and do 
 not appear to have been disputed, in which limited companies have 
 been registered as shareholders in other companies, and have been 
 fixed as contributories in the course of the winding up of those other 
 companies. It is true the objection does not seem in any of those cases 
 to have been taken, or the point to have been argued, and if the matter 
 rested upon practice alone, probably there would not have been 
 enough in the practice by itself to have led to the conclusion at which 
 I have arrived. But it appears to me, upon the proper construction 
 of the act, that the practice is entirely warranted by the act of parlia- 
 ment. The second argument, therefore, of the official liquidator 
 seems to me to fall to the ground. 
 Order of master of rolls affirmed. 
 
 Note. Accord: 1863, Great Western Ry. Co. v. Met. Ry., 32 L. J. Ch. 382 ; 
 1869, Royal Bank of Indiana, 4 Ch. App. 252. 
 
 But see 1851, East Anglican Ry. Co. v. Eastern Counties Ry., 7 Eng. L. & 
 Eq. 505; 1878, Ex Parte Liquidators B. N. L. I. Assn , L. R. 8 Ch. 679, contra. 
 
 Sec. 304. Same. 
 
 2. General rule in the United States. 
 
 THE PEOPLE, Ex REL. PEABODY, v. THE CHICAGO GAS TRUST 
 
 COMPANY. 1 
 
 1889. IN THE SUPREME COURT OF ILLINOIS. 130 111. Rep. 268- 
 303, 17 Am. St. Rep. 319, 8 L. R. A. 497. 
 
 \_Quo nvarranto as to the authority of the Gas Trust Company to 
 exercise certain powers. The company pleaded that its charter per- 
 mitted the exercise of the powers in question. The error assigned 
 was the overruling of demurrers to the plea's.] 
 
 MAGRUDER, J. The Chicago Gas Trust Company, appellee 
 herein, was organized under the general incorporation law of this 
 state. The statement filed by the original incorporators with the 
 secretary of state sets forth that the Trust Company was formed 
 for two objects, or for one object of a twofold character. The object, 
 named in the first clause of the second specification of the "state- 
 ment" is, in brief, the erection and operation of works in Chicago 
 and other places in Illinois, for the manufacture, sale and distribution 
 of gas and electricity. 
 
 The object named in the second clause of the second specification 
 of the "statement," is, in brief, "to purchase and hold or sell the 
 capital stock" of any gas or electric company or companies in Chi- 
 cago or elsewhere in Illinois. 
 
 In this proceeding no attack is made upon the validity of the organ- 
 ization of the Gas Trust Company as a corporation. 
 
 1 Statement, except as in opinion, arguments and part of opinion omitted.
 
 304 POWER TO ACQUIRE PERSONAL PROPERTY. 10$ 5 
 
 The controversy presented by the record relates solely to the au- 
 thority of the appellee to carry out the object designated in the second 
 clause above mentioned. It is claimed, on the part of the people, 
 that the charter or articles of association of the Gas Trust Company 
 did not and could not confer upon it the power "to purchase and hold 
 * * * 'the capital stock" of other gas companies. It is averred in 
 the information, and admitted in eight of the eleven pleas, that ap- 
 pellee has purchased and now holds a majority of the shares of the 
 capital stock of four gas companies. 
 
 There are two views which may be taken of the power to purchase 
 and hold the capital stock of other gas companies as designated in 
 said second clause. Must it be regarded as an original, independent 
 power intended to exist exclusively of and in addition to the power 
 named in the first clause, or may it be considered as merely ancillary 
 to the other power of maintaining and operating works for the manu- 
 facture and sale of gas? If the latter view be correct, the main object 
 for which the Gas Trust Company was formed would be that it 
 might itself maintain and operate works for the manufacture and sale 
 of gas, while the purchase of shares of stock in other companies would 
 be merely a subordinate object, incidental only to the main purpose of 
 the corporate formation. An illustration of this idea may be found 
 in the general law of this state in regard to the life insurance com- 
 panies, which makes it lawful for a life insurance company organized 
 in the state to "invest its funds or accumulations in the stocks of the 
 United States * * * or in such other stocks and securities as may 
 be approved by the auditor." The main object of forming such a 
 company is to engage in the business of life insurance, but the power 
 to invest surplus funds in certain stocks is given as an incident to such 
 business. 
 
 Can the power to purchase and hold the stock of other gas com- 
 panies be lawfully exercised by the appellee as incidental to the main 
 purpose of maintaining and operating works for the manufacture and 
 sale of gas? 
 
 Corporations can only exercise such powers as may be conferred 
 by the legislative body creating them, either in express terms, or by 
 necessary implication; and the implied powers are presumed to exist 
 to .enable such bodies to carry out the express powers granted, and to 
 accomplish the purposes of their creation. (C. P. & S. W. R. Co. 
 v. Marseilles, 84 111. 643 ; Chicago Gas Light Co. v. People's Gas 
 Light Co., 121 111. 530.) An incidental power is one that is directly 
 and immediately appropriate to the execution of the specific power 
 granted, and not one that has a slight or remote relation to it. (Hood 
 v. N. Y. & N. H. R., 22 Conn, i; Franklin Co. v. Lewiston Sav- 
 ings Institution, 68 Maine 43.) 
 
 Where a charter in express terms confers upon a corporation the 
 power to maintain and operate works for the manufacture and sale of 
 gas, it is not a necessary implication therefrom that the power to pur- 
 chase stock in other gas companies should also exist. There is no 
 necessary connection between manufacturing gas and buying stocks.
 
 IO56 PEABODY V. THE CHICAGO GAS TRUST CO. 304 
 
 If the purpose for which a gas company has -been created is to make 
 and sell gas and operate gas works, the purchase of stock in other gas 
 companies is not necessary to accomplish such purpose. "The right 
 of a corporation to invest in shares of another company can not be 
 implied because both companies are engaged in a similar kind of busi- 
 ness." (i Morawetz on Priv. Corp., 431.) 
 
 It is true that a gas company might take the stock of another cor- 
 poration in payment of a debt, or perhaps as security for a. debt, but 
 the actual purchase of such stock is not directly and immediately ap- 
 propriate to the execution of a specifically granted power to operate 
 gas works and manufacture gas. Some corporations, like insurance 
 companies, may find it necessary to keep funds on hand for the pay- 
 ment of losses by death or fire, or to meet other necessary demands, 
 but it is questionable whether even these can invest their surplus funds 
 in the stocks of other corporations without special legislative author- 
 ity. But there is nothing in the nature of a gas company which 
 renders it proper for such a company to accumulate funds for outside 
 investment; its surplus profits belong to the stockholders, and, when 
 distributed among them, can be used by them as they see fit. 
 
 If, then, the power to purchase outside stocks can not be implied 
 from the power to operate gas works and make and sell gas, a com- 
 pany to whom the latter power has been expressly granted can not 
 exercise the former without legislative authority to do so. This is 
 the law as settled by the great weight of authority. 
 
 Boone on the Law of Corporations says: "Without a power spe- 
 cifically granted, or necessarily implied, a corporation can not become 
 a stockholder in another corporation, and especially where the object 
 is to obtain the control or affect the management of the latter." In 
 Green's Brice's Ultra Vires (page 91, note 3) it is said: "In the 
 United States a corporation can not become a stockholder in another 
 corporation unless by powder specifically granted by its charter, or 
 necessarily implied in it." So also Morawetz on Private Corpora- 
 tions (sees. 431433) says: "A corporation has no implied right to 
 purchase shares in another company for the purpose of controlling its 
 management. * * * A corporation can not, in the absence of 
 express statutory authority, become an incorporator by subscribing 
 for shares in a new corporation, nor can it do this indirectly through 
 persons acting as its agents or tools." The authorities referred to by 
 these text writers sustain the conclusions announced by them. It has 
 been held in many cases, that, "in the United States, corporations can 
 not purchase, or hold, or deal in the stocks of other corporations, un- 
 less expressly authorized to do so by law," and that "one corporation 
 can not become the owner of any portion of the capital stock of 
 another corporation, unless authority to become such is clearly con- 
 ferred by statute." (Franklin Co. v. Lewiston Sav. Ins., supra; 
 Franklin Bank v. Commercial Bank, 36 Ohio St. 350 ; Milbank v. 
 N. Y., L. E. & W. R. Co., 64 How. (N. Y.) 20; Sumner v. 
 Marcy, 3 W. & M. 105 ; Mut. Savings Bank v. Meriden Agency, 24 
 Conn. 159; Central R. Co. v. Collins, 40 Ga. 582; Hazelhurst v.
 
 304 POWER TO ACQUIRE PERSONAL PROPERTY. IO5/ 
 
 Savannah R. Co., 43 Ga. 13; Berry v. Yates, 24 Barb. 199.) 
 
 The special charters of the Chicago Gas Light and Coke Campany 
 and of the People's Gas Light and Coke Company, which are set out 
 in full in the information and not called in question in any of the 
 pleas, confer by express grant the power to erect gas works and man- 
 ufacture and sell gas, etc., but do not confer the power to buy shares 
 of stock in other companies ; upon the latter subject they are silent. 
 It will not be denied, that, under the authorities already cited, these two 
 companies can not buy and hold stock in other gas companies. The 
 same would undoubtedly be admitted to be true of the Chicago Gas 
 Trust Company, if it held under a special charter of like tenor and 
 effect granted before the adoption of the constitution of 1870. Does 
 it make any difference that the appellee was organized under the gen- 
 eral incorporation act? 
 
 The general incorporation act of this state does not, in express 
 terms, confer upon the corporations organized under it the power to 
 purchase and hold shares of stock in other corporations. It is silent 
 upon that subject. The only powers granted by it are the ordinary 
 corporate powers, such as the rights to be bodies corporate and politic, 
 to sue and be sued, to have a common seal, etc. The charter of a 
 corporation formed under such a general law does not consist of the 
 articles of association alone, but of such articles taken in connection 
 with the law under which the organization takes place, (i Morawetz 
 on Priv. Corp., 318.) The provisions of the law enter into and 
 form a part of the charter. It certainly can not be true, that a corpo- 
 ration, formed under the general incorporation act for a purpose other 
 than that of dealing in stocks, can exercise the power of purchasing 
 and holding stock in other corporations, where such power can not be 
 necessarily implied from the nature of the power specifically granted, 
 and is not necessary to carry the latter into effect. 
 
 The power to purchase and hold stock in other companies must be 
 the subject of legislative grant, if not in all cases, at least in cases 
 where it can not be implied from the powers expressly granted. The 
 general incorporation law contains no grant of such power by the 
 legislature. Can a corporation organized under that law be clothed 
 with such a power by merely naming it in the statement filed with 
 the secretary of state? We think not. The action of the secretary 
 of state in issuing the license and the certificate of organization is 
 necessarily, to a large extent, merely ministerial. (Oregon Ry. Co. 
 v. Oregonian Ry. Co., 130 U. S. i 1 ; 4 Am. & Eng. Ency. of Law, 
 Tit. Corporations, page 192, note i.) Whether the articles of asso- 
 ciation, consisting of the statement, the license, the report of the 
 commissioners, the certificate of organization, etc., do or do not confer 
 such rights and powers as are authorized by the law, is a matter for 
 judicial determination. Counsel for appellee say: "We do not claim, 
 of course, that the action of the secretary of state is conclusive and 
 not subject to review by this court." 
 
 When a corporation is formed under the general incorporation act 
 
 1 Supra, p. 429. 
 67 WIL. CAS.
 
 1058 PEOPLE V. THE CHICAGO GAS TRUST CO. " 304 
 
 for the purpose of carrying on a lawful business, the law, and not the 
 statement, or the license, or the certificate, must determine what 
 powers can be exercised as incidents to such business. Even if shares 
 of stock be regarded as personal property, as claimed by counsel for 
 appellee, section five of the general law provides, that corporations 
 formed under it "may own * * * so much * * * per- 
 sonal estate as shall be necessary for the transaction of their business, 
 and may sell and dispose of the same when not required for the uses 
 of the corporation, * * * and may have and exercise all the 
 powers necessary and requisite to cany into effect the objects for which 
 they may be formed." This language negatives the idea that a cor- 
 poration formed under the general law can exercise the power of buy- 
 ing and holding the stock of other companies. A company engaged 
 on its own account in manufacturing and selling gas does not need 
 the stock of other gas companies in order to transact its business. 
 Hence, it is forbidden to own such stock, the same being "personal 
 estate." * * * 
 
 The second of the two objects is stated as follows: ''And to pur- 
 chase and hold or sell the capital stock, or purchase, or lease, or 
 operate the property, plant, good will, rights and franchises of any 
 gas works, or gas company or companies, or any electric company or 
 electric companies in * * * Chicago * * * or elsewhere 
 in * * * Illinois, as said corporation may, by vote of the ma- 
 jority of the stockholders, elect," etc. Manufacturing and selling 
 gas is one kind of business ; dealing in stocks is another and different 
 kind of business. If it appeared that the appellee was engaged in 
 both under its present charter, a serious question might arise as to the 
 power to organize one corporation for two distinct purposes under 
 the general incorporation act of this state. This record, however, 
 only shows that the appellee is exercising the power designated by the 
 declaration of the second object of its formation. What is the power 
 which it is so exercising? * * * 
 
 The fact that the appellee almost immediately after its organiza- 
 tion bought up a majority of the shares of stock of each of these 
 companies, shows that it was not making a mere investment of sur- 
 plus funds, but that it designed and intended to bring the four com- 
 panies under its control, and, by crushing out competition, to monop- 
 olize the gas business in Chicago. 
 
 The general incorporation act provides, "that corporations may be 
 formed in the manner provided by this act for any laivful purpose 
 except banking, insurance, real estate brokerage, the operation of 
 railroads and the business of loaning money." The purpose for 
 which a corporation is formed under the act must be a laiuful pur- 
 pose. . So far as appellee was organized with the object of purchas- 
 ing and holding all the shares of the capital stock of any gas com- 
 pany in Chicago or Illinois, it was not organized for a lawful purpose, 
 and all acts done by it towards the accomplishment of such object are 
 illegal and void. * * * 
 
 The common law will not permit individuals to oblige themselves
 
 304 POWER TO ACQUIRE PERSONAL PROPERTY. IOS9 
 
 by a contract either to do or not to do anything when the thing to be 
 done or omitted is in any degree clearly injurious to the public. 
 (Chappel v. Brockway, 21 Wend. 157; Transportation Co. v. Pipe 
 Line Co., 22 W. Va. 600.) In Stanton v. Allen, 5 Denio 434, an 
 agreement, whose tendency was to prevent competition, was held to 
 be void by the principles of the common law, because it was against 
 public policy and injurious to the interests of the state. 
 
 "Contracts creating monopolies are null and void as being con- 
 trary to public policy." (2 Addison on Cont., 743.) All grants 
 creating monopolies are made void by the common law. (7 Bacon's 
 Abridgment, page 22.) In The Case of the Monopolies (Coke's Re- 
 ports, Vol. 6, part XI, page 84), it was decided as long ago as the 
 forty-fourth year of the reign of Queen Elizabeth, that a "grant to 
 the plaintiff of the sole making of cards within the realm was utterly 
 void, and that for two reasons : i. That it is a monopoly and against 
 the common law. 2. That it is against divers acts of parliament," 
 etc. (Bell v. Leggett, 7 N. Y. 176; Trist v. Child, 21 Wall. 441.) 
 
 If contracts and grants, whose tendency is to create monopolies, are 
 void at common law, then where a corporation is organized under a 
 general statute a provision in the declaration of its corporate pur- 
 poses, the necessary effect of which is the creation of a monopoly, 
 will also be void. * * * 
 
 That the exercise of the power attempted to be conferred upon the 
 appellee company must result in the creation of a monopoly results 
 from the very nature of the power itself. If the privilege of purchasing 
 and holding all the shares of stock in all the gas companies of Chi- 
 cago can be lawfully conferred upon appellee under the general 
 incorporation act, it can be lawfully conferred upon any other corpo- 
 ration formed for the purpose of buying and holding all the shares of 
 stock of said gas companies. The design of that act was that any 
 number of corporations might be organized to engage in the same 
 business if it should be deemed desirable. But the business now un- 
 der consideration could hardly be exercised by two or three corpora- 
 tions. Suppose that after appellee had purchased and become the 
 holder of the majority of shares of stock of the four companies in 
 Chicago, another corporation had been organized with the same ob- 
 ject in view, that is to say, for the purpose of purchasing and holding 
 a majority of the shares of stock of the gas companies in Chicago. 
 There being only four of such companies, what would there be for 
 the corporation last formed to do? It could not carry out the object 
 of its creation, because the stock it was formed to buy was already 
 owned by an existing corporation. Hence to grant to the appellee the 
 privilege of purchasing and holding the capital stock of any gas com- 
 pany in Chicago is to grant to it a privilege which is exclusive in its 
 character. It is making use of the general incorporation law to secure 
 a special "privilege, immunity or franchise;" it is obtaining a special 
 charter, under the cover and through the machinery of that law, for 
 a purpose forbidden by the constitution. To create one corporation
 
 IO6O PEARSON V. CONCORD RAILROAD CORPORATION. 305 
 
 that it may destroy the energies of all other corporations of a given 
 kind, and suck their life blood out of them, is not a "lawful purpose." 
 
 * * * 
 
 The privileges awarded to the four gas companies under their re- 
 spective charters were given them in return for, and in consideration 
 of, services to be rendered by them to the public. When they en- 
 tered the streets of Chicago, they assumed the performance of the 
 public duty of furnishing light to the inhabitants. That they should 
 be permitted, or required, or forced, to abandon the performance of 
 such public duty is against the policy of the law. The public duty 
 is imposed upon each company separately, and not upon the four 
 when combined together. Each for itself, when it accepted its arti- 
 cles of association, assumed an obligation to perform the objects of 
 its incorporation. But the appellee, through the control which it 
 does or may exercise over the four companies by reason of its own- 
 ership of a majority of their stock, renders it impossible for them to 
 discharge their public duties except at the dictation of an outside 
 force, and in the manner prescribed by a corporation operating inde- 
 pendently of them. They are thus virtually forced to abandon the 
 performance of their duty to the public. The freedom and effective- 
 ness of their action in carrying out the purposes of their creation are 
 seriously interfered with, if not actually destroyed. A power, whose 
 exercise leads to such a result can not be lawfully entrusted to any cor- 
 porate body. * * * 
 
 The court below erred in oyerruling the demurrers. Reversed. 
 
 Note. See note at end of next case. 
 
 Sec. 305. Same. 
 
 3. Exceptions to general rule. 
 PEARSON v. CONCORD RAILROAD CORPORATION, ET. AL. 1 
 
 1883. IN THE SUPREME COURT OF NEW HAMPSHIRE. 62 New 
 Hampshire Reports 537-551, 13 Am. St. Rep. 590. 
 
 [Bill in equity by certain stockholders to set aside certain contracts 
 of the directors of one railroad company whereby they purchased for 
 it a controlling interest in the stock of a connecting road for the pur- 
 pose of controlling the latter in the interests of the former.] 
 
 SMITH, J. * * * The case finds that the Northern railroad is 
 the owner of 1,290 shares of Concord railroad stock, purchased in 
 1873, upon which it has since voted at the meetings of the Concord 
 railroad. A corporation can not become a stockholder in another 
 corporation, unless such power is given it by its charter or is neces- 
 sarily implied in it (Franklin Co. v. Bank, 68 Maine 43 ; Bank v. 
 Agency Co., 24 Conn. 159; Green Bri. Ult. V. 91, and cases cited; 
 Mor. Corp., section 229 and cases cited) ; especially if the purchase 
 
 1 Only so much of the opinion as relates to the single point is here given.
 
 305 POWER TO ACQUIRE PERSONAL PROPERTY. !O6l 
 
 be for the purpose of controlling or affecting the management of 
 the other corporation. Sumner v. Marcy, -3 W. & M. 105 ; Central 
 R. R. Co. v. Collins, 40 Ga. 582; Hazlehurst v. Savannah, etc., 
 R. R. Co., 43 Ga. 13; G. N. Ry. Co. v. Eastern, etc., Ry. Co., 
 21 L. J. Ch. 837; Booth v. Robinson, 55 Md. 419, 439. Dealing in 
 stocks is not expressly prohibited in the act of congress providing for 
 the organization of national banks (U. S. Rev. St., section 5136, par. 
 7), but such prohibition is implied from the failure to grant the power. 
 Bank v. Bank, 92 U. S. 122, 128. Corporations are creatures of the 
 legislature, having no other powers than such as are given to them by 
 their charters, or such as are incidental or necessary to carry into ef- 
 fect the puiposes for which they were established. Downing v. Mt. 
 W. Road Co., 40 N. H. 230, 232; Trustees v. Peaslee, 15 N. H. 
 317, 330; Beaty v. Knowler's Lessee, 4 Pet. 152; Perrine v. Com- 
 pany, 9 How. 172; Bank v. Earle, 13 Pet. 519; Trustees Dart- 
 mouth College v. Woodward, 4 Wheat. 518, 636. 
 
 Certain classes of corporations, such as religious and charitable 
 corporations, and corporations for literary purposes, may rightfully in- 
 vest their moneys in the stock of other corporations. The power, if 
 not expressly mentioned in their charters, is necessarily implied, for 
 the preservation of the funds with which such institutions are en- 
 dowed, and to render their funds productive. So an insurance com- 
 pany or savings bank may rightfully invest its capital or deposits in 
 the stocks of railroad companies, banks, manufacturing companies, 
 and similar corporations. The power is necessary to enable them to 
 engage in the business for which they are organized, and hence is im- 
 plied, if not expressly granted, in their charters. Such investments 
 are in the line of their business. On the other hand, a manufacturing 
 or railroad corporation is incorporated to do the business of manu- 
 facturing or transporting passengers and merchandise. Investing 
 their funds in that of other corporations is not in the line of their busi- 
 ness. Under extraordinary circumstances it may become necessary 
 for a national bank, or a manufacturing corporation, or a railroad cor- 
 poration, to acquire stock in another corporation, as in satisfaction of 
 a valid debt, or by way of security, but with a view to its subsequent 
 sale or conversion into money so as to make good or redeem an an- 
 ticipated loss. Bank v. Bank, 92 U. S. 128; Fleckner v. Bank, 8 
 Wheat. 338. 
 
 In Hodges v. N. E. Screw Co., i R. I. 312, the court said there 
 was no doubt the defendant company might have taken the stock in 
 the iron company in payment for its rolling-mill, if it had been taken 
 with a view to sell again, and not permanently to hold it. 
 
 The Northern Railroad by its charter w-as vested with all the pow- 
 ers necessary to carry into effect the purposes and objects of its incor- 
 poration, subject to the laws in relation to corporations and railroads 
 contained in the Revised Statutes. The objects of its incorporation are 
 declared to be the accommodation of the public travel and the trans- 
 portation of goods and merchandise. Laws 1844, ch. 190. It was 
 not contemplated that more funds would be raised by the issue of 
 stock than was necessary to construct and equip its road. The pro-
 
 1062 PEARSON V. CONCORD RAILROAD CORPORATION. 305 
 
 vision that when the net receipts shall amount to a sum making, with 
 the prior net receipts of -the corporation, more than an avei'age of 10 
 per cent, per annum from the commencement of its operations, the 
 excess shall be paid into the treasury of the state, is evidence that the 
 legislature never contemplated the accumulation of a fund from its 
 earnings, or from loans, or from the issue of stock, to be invested in 
 the stock of another railroad corporation. It can no more make a 
 permanent investment of funds in the stock of another road than it 
 can engage in a general banking, manufacturing or steamboat busi- 
 ness. It is neither incidental to the purposes of its incorporation, nor 
 necessary in the exercise of the powers conferred by its charter. If it 
 can purchase any portion of the capital stock of the Concord com- 
 pany it may buy up the whole, and thus engage in a business for 
 which its charter gives it no authority. And what would hinder a 
 banking corporation from becoming a manufacturing company, or a 
 manufacturing company from becoming a railroad common carrier? 
 
 But the facts in this case go further. The stock was bought at 
 $105 or $106 per share (par value, $50), a price largely in excess of 
 its market value, and for the purpose of obtaining control of the Con- 
 cord and securing more favorable contracts to itself. In Sumner v. 
 Marcy, 3 W. & M. 105, the corporation was chartered to deal in 
 lumber, with a capital of $1=50,000, of which only $75,000 could be 
 invested in personal property, and took stock in a bank to the value 
 of $168,000, for the purpose of getting control of the bank a clear 
 violation of its charter, but no more so than in this case. The pur- 
 chase by a corporation of stock in another corporation will be en- 
 joined at the instance of stockholders, when it involves a misapplica- 
 tion of corporate funds, or is a mere speculation, or is induced by a 
 vicious purpose. Pierce R. R., 505. If the investment by one rail- 
 road corporation of more than $135,000 in stock of another at prices 
 exceeding its market value, for the purpose of controlling such corpo- 
 ration for its own benefit, is not a misapplication of corporate funds, 
 it would be difficult to find a case where such investment would be. 
 
 [Contracts set aside and a trustee appointed to manage the affairs 
 of the Concord company.] 
 
 Note. Acquiring 1 stock in other corporations. 
 
 1. General rule: In the absence of particular charter or statutory provisions,, 
 or circumstances (indicated below), one business corporation has no general 
 implied authority to acquire or hold stock in another such corporation (or- 
 ganized either for a similar or for a different purpose), as an investment for 
 speculation, or for purpose of controlling or managing such corporation. This 
 rule is applied in cases of: 
 
 (a) Banks: 1852, Talmage v. Pell, 7 N. Y. 328; 1877, Franklin Co. v. Lewis- 
 ton Sav. Inst., 68 Maine 43 (in manufacturing) ; 1884, Franklin Bank v. Com- 
 mercial Bank, 36 Ohio St. 350 (in banks) ; 1884, Nassau Bank v. Jones, 95 N. Y. 
 115, infra, p. 1205 (in railroad) ; 1893, Bank of Commerce v. Hart, 37 Neb. 197 
 (in insurance) ; 1897, California Bank v. Kennedy, 167 U. S. 362 (in banks) ; 
 1899, First National Bank v. Hawkins, 174 U. S. 364 (in banks). But compare, 
 
 1897, Latimer v. Citizens' S. B., 102 Iowa 162. See infra (i). 
 
 (b) Furniture companies: 1893, Denny Hotel Co. v. Schram, 6 Wash. 134, 
 supra, p. 553 (in hotel) ; 1895, Knowles v. Sandercock, 107 Cal. 629 (same); 
 
 1898, Newland Hotel Co. v. Furniture Co., 73 Mo. App. 135 (same).
 
 3O5 POWER TO ACQUIRE PERSONAL PROPERTY. 1063 
 
 (c) Insurance companies: 1855, Mechanics' and W. M. Sav. B., etc., v. 
 Meriden Agency, 24 Conn. 159 (in bank) ; 1857, Berry v. Yates, 24 Barb. (N. 
 Y.) 199 (in insurance) ; 1878, Ex parte Liquidators L. R., 8 Ch. D. 679 (same) ; 
 1884, Pierson v. McCurdy, 33 Hun (N. Y.) 520 (same); 1891, Commw. Fire 
 Ins. Co. v. Board of Rev., 99 Ala. 1, supra, p. 773 (in bank). See infra (i). 
 
 (d) Land company: 1893, Pauly v. Coronado Beach Co., 56 Fed. Rep. 428 (in 
 manufacturing) ; 
 
 (e) Lumber company: 1893, Lanier Lumber Co. v. Rees, 103 Ala. 622 (in 
 lumber company) ; 
 
 (f) Manufacturing company: 1847, Sumner v. Marcy, 3 Woodb. & M. 105, 
 Fed. Gas. 13609 (in bank) ; 1888, Lake Erie, etc., R. Co. v. Iron Co., 46 Ohio 
 St. 44 (in railway); 
 
 In other manufacturing: 1892, Easun v. Buckeye B. Co., 51 Fed. Rep. 156; 
 1892, Buckeye Marble Co. .v. Harvey, 92 Tenn. 115; 1895, Merz Capsule Co. 
 v. U. S. Capsule Co., 67 Fed. Rep. 414; 1897, People v. Chicago Gas Co., 130 
 111. 268; 1898, Martin v. Stove Co., 78 111. App. 105; 1898, People v. Pull- 
 man's P. C. Co., 175 111. 125; 1899, De La Vergne R. M. Co. v. German Sav. 
 Inst., 175 U. S. 40. But compare, 1897, White v. Marquardt, 105 Iowa 145. 
 See infra (i). 
 
 (g) Raihoay companies: In other railway companies: 1851, East Anglican 
 R. Co. v. Eastern Counties R., 7 Eng. L. & Eq. 505; 1863, Maunsell v. 
 Midland R., 1 Hem. & M. 130; 1869, Central R. Co. v. Collins, 40 Ga. 582; 
 1871, Hazelhurst v. Savannah, etc., R. Co., 43 Ga. 13; 1875, Central R. Co. 
 v. Pennsylvania R. Co., 31 N. J. Eq. 475; 1882, Milbank v. N. Y., L. 
 E. & W., 64 How. Pr. 20; 1882, Elkins v. Camden & A. R. 36 N. J. Eq. 5; 
 1883, Pearson v. Concord Ry. Co., 62 N. H. 537; 1888, Mackintosh v. Flint, 
 etc., R., 34 Fed. Rep. 582; 1888, Langdon v. Branch, 37 Fed. Rep. 449; 1892; 
 Hamilton v. Savannah, etc., R., 49 Fed. Rep. 412; 1896, Farmers L. & T. 
 Co. v. Railroad Co., 150 N. Y. 410; 1898, Military Interstate Assoc. v. Rail- 
 way Co., 105 Ga. 420 (in an advertising company). 
 
 See infra (i) and, 
 
 (h) The general rule is applied with vigor where the object is to obtain con- 
 trol in order to prevent competition : 1869, Central R. Co. v. Collins, 40 Ga. 
 582; 1879, Central R. v. Penn. R., 31 N. J. Eq. 475; 1882, Elkins v. C. & A. 
 R., 36 N. J. Eq. 5; 1889, People v. Chicago G. T. Co., 130111. 268, 17 Am. St. 
 R. 319, 8 L. R. A. 497, supra, p. 1054; 1892, Clarke v.R. Co., 50 Fed. Rep. 338; 
 1895, Louisville, etc., R. v. Ky., 161 U. S. 677 ; 1898, Martin v. Stove Co., 78 
 111. App. 105 ; 1899, De La Vergne R. M. Co. v. German Sav. Inst, 175 U. S. 40. 
 
 (i) But the following cases hold contra the general rule above given: 1849, 
 Elysville Mfg. Co. v. Okisko Co., l'Md. Ch. 392; 1850, Hodges v. Screw Com- 
 pany, 1 R. I. 312, 53 Am. Dec. 624; 1853, Elysville Mfg. Co. v. Okisko Co., 5 
 Md. 152; 1879, Terry v. Eagle Lock Co., 47 Conn. 141 ; 1880, Booth v. Robin- 
 son, 55 Md. 419; 1883, Pearson v. Railroad Co., 62 N. H. 537 (as to some cor- 
 porations) ; 1894, Smith v. Newark, etc., R., 8 Ohio C. C. 583; 1895, Calumet 
 Paper Co. v. S. I. Co., 96 Iowa 147; 1897, White v. Marquardt, 105 Iowa 145, 
 74 N. W. Rep. 930. 
 
 See, also, English rule, supra, p. 1051, and exceptions noted below. 
 
 2. Exceptions to the general rule. 
 
 (a) Express or implied authority ; special authority. 1869, Miners' Ditch 
 Co. v. Zellerbach, 37 Gal. 543; 1884, Evans v. Bailey, 66 Cal. 112; 1899, Tren- 
 ton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 43 Atl. Rep. 723. 
 
 Authority to consolidate implies power to purchase' stock : 1863, Mayor of 
 Baltimore v. B. & O. R., 21 Md. 50; 1879, Ryan v. Leaven worth, 21 Kan. 
 365; 1885, Terhune v. Potts, 47 N. J. L. 218; 1885, Hill v. Nisbet, 100 Ind. 
 341 ; 1892, Dewey v. Toledo R., 91 Mich. 351; 1893, Tod v. Ky. Union Land 
 Co., 57 Fed. Rep. 47, supra, p. 952; 1894, Marbury v. Land Co., 62 Fed. Rep. 
 335; 1896, Louisville T. Co. v. Louisville, etc., R"., 75 Fed. Rep. 433; 1898, 
 Rogers v. Nashville, etc., Co., 91 Fed. Rep. 299; 1900, Trust Co. v. State, 109 
 Ga. 736, 35 S. E. Rep. 323. 
 
 In 1895, Calumet Paper Co. v. South Invest. Co., 96 Iowa 147, power to ac- 
 quire stock in other companies is implied from a grant "to contract, acquire 
 and transfer property as a private person"; so too, in 1897, White v. Mar-
 
 IO64 PEARSON V. CONCORD RAILROAD CORPORATION. 305 
 
 quardt, 105 Iowa 145, 74 N. W. Rep. 930, it was held that a corporation might 
 exchange its goods for stock in other corporations. 
 
 In many states the subject is regulated by statutory or other provision e. 
 g., Georgia forbids her legislature authorizing one corporation purchasing 
 the shares of another corporation. Const. 1877, art. iv, 2, par. 4. See, 
 1900, Trust Co. v. State, 109 Ga. 736, 35 S. E. Rep. 323. On the other hand, 
 several states authorize corporations to purchase and deal in such stocks, as 
 Minn. G. S. 1891, 2680; New Jersey, Acts 1896, 51; New York, G. L. C. 
 36, art. iii, 40. 
 
 (b) When necessary to prevent loss, or secure the payment of a debt, stock 
 may be taken in other corporations: 1847, Sumner v. Marcy, 3 Woodb. & M. 
 105, Fed. Gas. 13609; 1852, Talmage v. Pell, 7 N. Y. 328; 1860, Howe v. Bos- 
 ton Carpet Co., 82 Mass. (16 Gray) 493 ; 1875, First National Bank v. National 
 Ex. Bk., 92 U. S. 122 ; 1888, Railway Co. v. Iron Co., 46 Ohio St. 44 ; 1889, Na- 
 tional Bank v. Case. 99 U. S. 628; 1891, Holmes & Griggs Mfg. Co. v. H. & 
 W. M. Co., 127 N. Y. 252; 1893, Bank of Commerce v. Hart, 37 Neb. 197; 
 1895, Byrne v. Schuyler Elec. Mfg. Co., 65 Conn. 336; 1895, Calumet Paper 
 Co. v. Invest. Co., 96 Iowa 147; 1897, California Bank v. Kennedy, 167 U. 
 S. 362. 
 
 (c) But it seems a failing corporation may dispose of its property in ex- 
 change for the stock of another corporation, for the purpose of winding up its 
 affairs, but not for holding permanently, and if creditors are protected: 1856, 
 Treadwell v. Salisbury M. Co., 7 Gray (Mass.) 393; 1876, Buford v. Keokuk 
 N. P. Co., 3 Mo. App. 159; 1895, Holmes & G. Mfg. Co. v. H. & W. M. Co., 
 127 N. Y. 252; 1895, Byrne v. Elec. Co., 65 Conn. 336; 1896, Pinkus v. Minn. 
 L. M. Co., 65 Minn. 40. 
 
 But not if solvent, against the protest of shareholders : 1892, People v. Bal- 
 lard, 134 N. Y. 269, infra, p. 1066; 1895, Byrne v. Elec. Co., 65 Conn. 336; 1896, 
 Elyton Land Co. v. Dowdell, 113 Ala. 177, 59 Am. St. Rep. 105. 
 
 (d) A parent company may acquire the stock of a branch company: 1889, 
 People v. Bell Tel. Co., 117 N. Y. 241. 
 
 3. Where stock of a corporation is held without authority by another cor- 
 poration, the latter may collect dividends upon, or sell it, but can not vote 
 upon it: 1872, State v. McDaniel, 22 Ohio St. 354, 368; 1882, Milbank v. N. 
 Y., etc., R., 64 How. Pr. 20, 30; 1889, Memphis, etc., R. Co. v. Woods, 88 
 Ala. 630; 1899, Bigbee & W. R. Co. v. Moore, 121 Ala. 379, 25 So. Rep. 602; 
 1899, State v. Newman, 51 La. Ann. 833. 
 
 But if the holding is authorized, the stock so held may be voted: 1890, 
 State v. Rohlffs, N. J. , 19 Atl. Rep. 1099 ; 1894, Oelbermann v. N. Y., 
 etc., R., 77 Hun (N. Y.) 332. 
 
 As to liability of a corporation upon an ultra vires holding of stock in an- 
 other corporation, see, 1894, Kennedy v. Cal. Sav. Bk., 101 Cal. 495; 1896, 
 Citizens', etc., Bk. v. Hawkins, 71 Fed. Rep. 369; 1897, California Bk. v. 
 Kennedy, 167 U. S. 362. 
 
 The ultra vires exclusive holding, however, does not merge the companies, 
 and the one owning the stock of the other does not make the former liable 
 for the debts of the latter: 1895, Einstein v. Rochester Gas, etc., Co., 146 N. 
 Y. 46 ; 1898, National Bank of Commerce v. Allen, 90 Fed. Rep. 545 ; 1898, 
 Louisville Gas Co. v. Kaufman, 20 Ky. L. Rep. 1069, 48 S. W. Rep. 434. 
 
 4. Who may object. 
 
 (a) A shareholder can, if the contract is executory, or if he acts promptly: 
 1849, Salomons v. Laing, 12 Beav. 339; 1853, Kean v. Johnson, 9 N. J. Eq. 
 401 ; 1885, Holt v. Winfleld Bank, 25 Fed. Rep. 812; 1895, Byrne v. Elec. Co., 
 65 Conn. 336; 1899, Harding v. Am. Glucose Co., 182 111. 551, 74 Am. St. Rep. 
 190. See note, supra, 291 ; infra, 583-385. 
 
 But not if completely executed or if guilty of laches : 1882, Wright v. Pipe 
 Line, 101 Pa. St. 204; 1885, Holt v. Winfleld Bank, 25 Fed. Rep. 812; 1892, 
 Willoughby v. Chicago Jet., 50 N. J. Eq. 656. See note, supra, 291. 
 
 (b) The state can complain : 1889, People v. Chicago Gas Trust, 130 111. 
 268; 1892, People v. Ballard, 134 N. Y. 269; 1892, State v. Standard Oil Co., 
 49 Ohio St. 137. See note, supra, 291, infra, 583-585.
 
 306 POWER TO ALIENATE PROPERTY. 1065 
 
 Sec. 306. 3. Power to alienate property, 
 (a) General doctrine. 
 
 THE AUKORA AGRICULTURAL AND HORTICULTURAL SOCIETY 
 OF AURORA v. PADDOCK ET AL. 
 
 1875. IN THE SUPREME COURT OF ILLINOIS. 80 111. 263-274. 
 
 CRAIG, J. This was a bill in equity, brought by appellees, to fore- 
 close a mortgage executed by the Aurora Agricultural and Horti- 
 cultural Society of Aurora, on the 28th day of December, 1870, to 
 secure the payment of $6,000 loaned by John R. Coulter to the 
 society. The court, on a hearing of the cause, rendered a decree 
 directing a sale of the mortgaged premises in satisfaction of the mort- 
 gage debt. 
 
 The society has prosecuted this appeal, and, in order to obtain a 
 reversal of the decree, it is insisted by the counsel for appellant: 
 
 First. That the society had no power whatever to mortgage. 
 
 Second. That the mortgage in question was wholly unauthorized. 
 
 The appellant was organized on the 6th day of March, 1869, under 
 an act approved February 15, 1855, which authorized the incorpora- 
 tion of agricultural societies. (Gross' Statutes, 1869, page 119.) 
 By the third section of the act the society was made a body corporate, 
 with power to sue and be sued, to acquire and hold real estate not 
 exceeding five hundred acres, to construct the necessary improvements 
 and buildings for its purpose, to have and employ capital, machinery, 
 live stock, etc., not exceeding in value $10,000. 
 
 While it is true no section of the act confers direct authority upon 
 the society to sell or mortgage its property, except upon a dissolution 
 of the corporation, yet the act does not prohibit or restrict the society 
 from selling or giving a mortgage upon its real estate. The power 
 to mortgage, when not expressly given or denied, must be regarded 
 as an incident to the power to acquire and hold real estate and make 
 contracts. 
 
 We understand it to be the common law rule that corporations have 
 an incidental right to alien or dispose of their lands and personal prop- 
 erty unless specially restrained by the act under which they are organ- 
 ized or by statute. 
 
 It is said in Angell & Ames on Corporations, p. 153: "Independ- 
 ent of positive law, all corporations have the absolute jus disponendi, 
 neither limited as to objects nor circumscribed as to quantity." The 
 same doctrine fs clearly laid down by Kent, vol. 2, page 280. 
 
 We are, therefore, of opinion, as the society was not prohibited 
 from mortgaging its lands, it possessed the power to do so as an in- 
 cident to the power to purchase and hold real estate and make con- 
 tracts. 
 
 In regard to the second point relied on by appellant that the direc- 
 tors of the society had no power to authorize its president and secre- 
 tary to mortgage the premises, such power, if it existed at all, being
 
 1066 PEOPLE V. BALLARD. 307 
 
 in the stockholders a complete answer to this position is that the 
 action of the directors was ratified by the stockholders. 
 Decree affirmed. 
 
 Note. Corporations have the power to alienate property, generally without 
 special authority, and to any extent, if creditors, or dissenting shareholders, are 
 not injuriously affected: 1838, Ref. Prot. Dutch Church v. Mott, 7 Paige Ch. 
 (N.Y)77, 32 Am. Dec. 613; 1840, Bun-ill v. Nahant Bank, 2 Mete. (Mass.) 163, 
 35 Am. Dec. 395; 1856, Old Colony R. Co. v. Evans, 6 Gray (Mass.) 25, 66 Am. 
 Dec. 394; 1856, Treadwell v. Salisbury Mfg. Co., 7 Gray (Mass.) 393, 66 Am. 
 Dec. 490, infra, p. 1787 ; 1869, Miners Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am 
 Dec. 300; 1888, State v. Western, etc., Co. ,40 Kan. 96, 10 Am. St. R. 166; 1891, 
 Finch v. Ullman, 105 Mo. 255, 24 Am. St. R. 383; 1891, Holmes Mfg. Co. v. 
 Holmes Metal, etc., Co., 127 N. Y. 252, 24 Am. St. R. 448; 1892, Union Pacific 
 R. Co. v. C.,R. I. &P. R.,51 Fed. Rep. 309; 1894, Benbow v. Cook, 115 N. C. 
 324, 44 Am. St. R. 454; 1897, Bartholomew v. Derby Rubber Co., 69 Conn. 
 521, 61 Am. St. R. 57; 1898, Central Trust Co. v. W. N. C. R. Co., 89 Fed. 
 Rep. 24 ; 1898, Risdon Iron & L. W. v. Citizens' Traction Co., 122 Cal. 94, 54 Pac. 
 Rep. 529 (rolling stock) ; 1899, Stockton v. Am. Tobacco Co., 55 N. J. Eq. 352 ; 
 
 1899, Michigan Tel. Co. v. City of St. Joseph, 121 Mich. 502, 80 N. W. Rep. 383 ; 
 
 1900, City of Spokane v. Amsterdamsch, etc., Wash. , 60 Pac. Rep. 141 ; 
 1900, Hamilton v. Menominee Falls Quarry Co., Wis. , 81 N. W. Rep. 
 876; 1900, Advance Benev. Order v. Penn. Safe D. & T. Co., Pa. , 46 
 Atl. Rep. 102. But see, infra, 619, as to power of majority to sell without 
 consent of minority of shareholders. Also infra, 639, as creditors' rights to 
 complain. 
 
 Sec. 307. (b) Limits. 
 
 PEOPLE v. BALLARD ET AL. 1 
 
 1892. IN THE COURT OF APPEALS OF NEW YORK. 134 N. Y. 
 
 Rep. 269-305. 
 
 VANN, J. In 1880 the Spring Valley Hydraulic Gold Company 
 was organized as a corporation under the general manufacturing act 
 of this state, and shortly thereafter it invested substantially all its cap- 
 ital in certain mines in the state of California, and until the year 1886 
 operated the same as its sole business. The object for which it was 
 formed, as stated in the certificate of incorporation, was to carry on 
 the business of mining various precious ores, and to smelt, refine and 
 sell the product. 
 
 In July, 1886, the defendant trustees transferred all its property, 
 both real and personal, including said mines, to a corporation organ- 
 ized at the time under the laws of the state of California, for the 
 purpose of carrying on the business theretofore conducted by the de- 
 fendant company and of taking title to its assets. This was done with 
 the approval of stockholders holding a majority of the stock, in good 
 faith, to save the property from sacrifice, but without the consent of 
 the holders of a large number of shares and against the protest of 
 some of the stockholders. The sole consideration for such transfer 
 
 1 Part of opinion of Vann, J., and all of dissenting opinion of Landon, J. 
 (with whom Brown, J., concurred), omitted.
 
 307 POWER TO ALIENATE. IO6/ 
 
 was an agreement by the California company to pay the debts of the 
 New York company and to issue to it certain shares of its capital 
 stock. A majority of the directors of the former company were, and 
 still are, residents of California, and the only object of the transaction 
 was, without a dissolution, to reorganize the defendant company un- 
 der the laws of another state in order to obtain some real or supposed 
 advantage afforded thereby. The attorney-general commenced this 
 action to remove the trustees and to compel them to account for the 
 property thus transferred, but the special term dismissed the complaint 
 because no one was joined as a relator and the general term affirmed 
 the judgment, one of its learned justices dissenting. 
 
 This appeal presents two questions of grave importance: 
 
 1. Whether an action for the judicial supervision of a business cor- 
 poration, its officers and members can be maintained by the attorney- 
 general in the name of the people without a relator? (People v. 
 Lowe, 47 Hun 577; People v. Bruff, 9 Abb. [N. C.] 153.) 
 
 2. Whether a corporation created by the laws of this state can be 
 reorganized under the laws of another state without the process of law- 
 ful dissolution. * * * 
 
 (After holding that the New York statutes allowed the proceeding 
 by the attorney-general alone, proceeds:) 
 
 A corporation is purely artificial, having no natural or inherent 
 power, but only such as its charter confers. The charter of the cor- 
 poration in question was the statute under which it was organized. 
 Upon filing the certificate of incorporation it came into existence with 
 power to do only that which is expressly or impliedly authorized by 
 the statute. It had no power to act, except through its trustees, who 
 were authorized to manage its "stock, property and concerns," and 
 a majority of whom were required to be citizens of this state. (Laws 
 of 1848, ch. 40, as amended by Laws of 1869, ch. 269.) While they 
 were authorized to conduct its affairs, they were not authorized to 
 terminate its existence, although, under special circumstances, the 
 courts could dissolve it upon their application. (Code of Civ. Pro., 
 2419.) A corporation can not cease to exist of its own will. Its 
 life continues until either the charter period has expired or the court 
 has decreed a dissolution. The law made it, and the law only can 
 put an end to it. As it can not take its own life directly, it can not 
 do so indirectly, for that would be a fraud upon the law and against 
 public policy. By the transaction complained of the defendant com- 
 pany was stripped of all its property, and thus prevented from going 
 on in business and deprived of all means of carrying into effect the 
 object of its existence. While a corporation may sell its property to 
 pay debts, or to carry on its business, it can not sell its property in 
 order to deprive itself of existence. It can not sell all its property to 
 a foreign corporation organized through its procurement, with a ma- 
 jority of non-resident trustees, for the express purpose of stepping into 
 its shoes, taking all its assets and carrying on its business. That 
 would be the practical destruction of the corporation by its own act, 
 which the law will not tolerate. Whether the process by which it
 
 1068 PEOPLE V. BALLARD. 307 
 
 was sought to convert the New York corporation into a California 
 corporation is called reorganization, consolidation or amalgamation, 
 it was the exercise of a power not delegated, and was void. It was 
 corporate burial in New York for resurrection in California. While 
 the stockholders who consented may be estopped by their acts, those 
 who did not consent can take advantage of this violation of their 
 rights, and in the state of New York can demand that those who did 
 the wrong shall make restitution. 
 
 The case of Abbott v. American Hard Rubber Company (33 Barb. 
 578), is the leading authority upon the subject in this state, and it is 
 also recognized as the leading authority in most of the states. In 
 that case a majority of the trustees of a business corporation, without 
 the consent of some of the stockholders, transferred all its personal 
 property, which was especially adapted to its business, to two persons, 
 who forthwith caused another corporation to be formed, and trans- 
 ferred such property to it. It was held that, as such transfer practically 
 terminated the corporation by taking from it the power to fulfill the 
 object of its organization, it was -a violation of that object, was not 
 within the power of the trustees, and was hence void as ulta vires. 
 The case was elaborately considered both at general and special term, 
 and we regard it as a sound and valuable authority. 
 
 A somewhat similar question was under consideration in Frothing- 
 ham v. Barney (6 Hun 366), where the court said: "This, as a business 
 arrangement, was wise, discreet and sagacious. As such it should be 
 sustained if it legally is possible. The interests of one or two small 
 stockholders should not enable them to work the destruction of the 
 interests of co-owners, or compel the purchase of their stock at ficti- 
 tious or unreal prices, if it can be avoided. * * * Upon the dis- 
 solution of the association, it became the duty of the trustees to con- 
 vert the assets into money and distribute the proceeds among the 
 stockholders. To a certain extent this has been done. A portion of 
 such assets has not been distributed, and another portion, including 
 the good will of the old association, has been exchanged by the trus- 
 tees for the corporate stock of a new Wells, Fargo & Co. This, as I 
 understand, the trustees had no right to do. They had no right to 
 exchange the assets of the old association for the corporate stock of 
 any corporation without the consent of all the stockholders. (Mann 
 v. Butler, 2 Barb. Ch. 362.) Equally were they without authority 
 in making this partial exchange without such consent. Stockholders 
 of the old association could not thus, against their will, be forced into 
 relations with the new company. (Blatchford v. Ross, 54 Barb. 42; 
 H. & N. H. R. Co. v. Croswell, 5 Hill 383, 386.)" 
 
 In Taylor v. Earle (8 Hun i), a New York corporation, by the 
 vote of a large majority of its stockholders, sold all its property, ex- 
 cept cash on hand, mills and franchises, to a Vermont corporation 
 and took in payment shares of stock in the latter company. The 
 court said: "The whole scheme of the transfer and its execution was 
 illegal. There is no power given by the acts under which the Bur- 
 lington cotton mills (the New York corporation) was incorporated
 
 30/ POWER TO ALIENATE. 1069 
 
 to transfer all its property and thus terminate its existence, and take 
 in payment stock in a company carrying on the same business with a 
 different name, charter and stockholders, and being a foreign corpo- 
 ration. Th'e corporation, by the New York law, could increase or 
 diminsh its stock, or extend its business to other objects, but that falls 
 far short, I think, of the sweeping power exercised on this occasion. 
 The sale was not real. It was a mere form to turn a New York cor- 
 poration into a Vermont one, and thus escape the scrutiny into the 
 affairs of the company permitted by the New York law to the stock- 
 holders." 
 
 All the authorities in this state are uniform in holding that the trus- 
 tees of a corporation can not so dispose of its property as to virtually 
 end its existence and prevent it from carrying on the business for 
 which it was incorporated. (Blatchford v. Ross, 54 Barb. 42 ; Cope- 
 land v. Citizens' Gas Light Co., 61 Barb. 60; Smith v. New York 
 Consolidated Stage Co., 18 Abb. Pr. 419; Metropolitan El. Ry. Co. 
 v. Manhattan El. Ry. Co., 14 Abb. [N. C.] 303; Hartford, etc., 
 R. R. Co. v. Croswell, 5 Hill 383.) 
 
 Other courts of the highest standing have laid down the same rule. 
 (Railway Co. v. Allerton, 85 U. S. 233; Stevens v. Rutland, etc., 
 R. R. Co., 29 Vt. 545; New Orleans, etc., R. R. Co. v. Harris, 27 
 Miss. 517; see, also, Morawetz on Corporations, 413; Spelling on 
 Corporations, 1012; Cook on Stock and Corporation Law, 667; 
 Beach on Corporations, 358, 430). 
 
 The fact that the trustees acted in good faith did not empower 
 them to do an illegal act ; and the fact that there may be some diffi- 
 culty in the final adjustment of rights, because some of the stock- 
 holders consented, while others did not, constitutes no defense to the 
 action: We see no greater difficulty, however, than would exist if 
 the action were brought by a trustee who had not consented to the act 
 complained of, and no reason why "the liability of the trustees to ac- 
 count" should not be "limited to those stockholders who have not 
 assented to the transfer." 
 
 We think that the transfer was unauthorized and void as to the 
 non-assenting stockholders, and as to the state, and that the people 
 can maintain the action in the name of sovereignty. 
 
 The judgment should, therefore, be reversed and a new trial 
 granted, with costs to abide event. 
 
 Note. Compare, 1889, People v. Chicago Gas Trust Co., 130 111. 268, 17 Am. 
 St. R. 319, 8 L. R. A. 497, supra, p. 1054; 1895, Coleman v. Howe, 154 111. 458, 
 45 Am. St. R. 133; 1896, Buck v. Ross, 68 Conn. 29, 57 Am. St. R. 61, infra, p. 
 1977 ; 1898, Sprague v. National Bank, 172 111. 149, 64 Am. St. R. 17 ; 1899, Hani- 
 ing v. Am. Glucose Co., 182 111. 551, 74 Am. St. R. 190; 1899, De La Vergne 
 Refrigerating Match Co. v. German Sav. Inst., 175 U. S. 40, 20 Sup. Ct. Rep. 20.
 
 IO/O COMMONWEALTH V. SMITH. 308 
 
 Sec. 308. (c) Same. Property charged with public trust can 
 not be sold without special authority. 
 
 HOAR, J., IN COMMONWEALTH v. SMITH. 
 
 1865. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 10 
 Allen (Mass.) 448, on 455-6, 87 Am. Dec. 672, on 674-5. 
 
 [Bill in equity by the state as the owner of prior mortgage on the 
 property of the Troy and Greenfield Railroad Company, to impeach 
 the validity of a mortgage executed by that company to Smith as 
 trustee, covering the franchise and property of the railroad company 
 then owned, or afterward acquired, to secure bonds to the amount of 
 $900,000 to be issued to the contractor as part compensation for the 
 construction of the road.] 
 
 There seems to be no reason why a railroad corporation should not 
 be considered as having power to make a bond for any purpose for 
 which it may lawfully contract a debt, without any special authority 
 to that effect, unless restrained by some restriction, express or im- 
 plied, in its charter, or in some other legislative act. A bond is 
 merely an obligation under seal. A corporation having the capacity 
 to sue and be sued, the right to make contracts, under which it may 
 incur debts, and the right to make and use a common seal, a contract 
 under seal is not only within the scope of its powers, but was orig- 
 inally the usual and peculiarly appropriate form of corporate agree- 
 ment. The general power to dispose of and alienate its property is 
 also incidental to every corporation not restricted in this respect by 
 express legislation, or by "the purposes for which it is created, and 
 the nature of the duties and liabilities imposed by its charter." Tread- 
 well v. Salisbury Manufacturing Co., 7 Gray 404. 
 
 But in the case of a railroad company, created for the express and 
 sole purpose of constructing, owning and managing a railroad ; au- 
 thorized to take land for this public purpose under the right of emi- 
 nent domain ; whose powers are to be exercised by officers expressly 
 designated by statute ; having public duties, the discharge of which 
 is the leading object of its creation; required to make returns to the 
 legislature; there are certainly great, and, in our opinion, insuperable 
 objections to the doctrine that its franchise can be alienated, and its 
 powers and privileges conferred by its own act upon another person 
 or body, without authority other than that derived from the fact 
 of its own incorporation. The franchise to be a corporation clearly 
 can not be transferred by any corporate body, of its own will. Such 
 a franchise is not, in its own nature, transmissible. The power to 
 mortgage can only be coextensive with the power to alienate abso- 
 lutely, because every mortgage may become an absolute conveyance 
 by foreclosure. And although the franchise to exist as a corporation
 
 39 POWER TO ALIENATE. IO7I 
 
 is distinguishable from the franchises to be enjoyed and used by the 
 corporation after its creation, yet the transfer of the latter differs es- 
 sentially from the mere alienation of ordinary corporate property. 
 The right of a railroad company to continue in being depends upon 
 the performance of its public duties. Having once established its 
 road, if that and its franchise of managing, using and taking tolls or 
 fares upon the same are alienated, its whole power to perform its most 
 important functions is at an end. A manufacturing company may 
 sell its mill and buy another; but a railroad company can not make a 
 new railroad at its pleasure. 
 See note at end of next case. 
 
 Sec. 309. Rame. 
 
 BRUNSWICK GAS LIGHT COMPANY v. UNITED GAS, FUEL AND 
 LIGHT COMPANY. 1 
 
 1893. IN THE SUPREME JUDICIAL COURT OF MAINE. 85 Maine 
 Rep. 532-541, 35 Am - St - Re P- 3 8 5- 
 
 [Action to recover damages for breach of the covenants in a lease. 
 The defense was that the plaintiff, being a corporation that owed a 
 duty to the public, had no legal right to lease such property as dis- 
 abled it from performing this duty.] 
 
 WALTON, J. The question is whether a gas company, which pos- 
 sesses and exercises the right to lay its pipes in the public streets, can 
 sell, lease or assign its corporate rights and privileges to another gas 
 company without the consent of the legislature. 
 
 We think the question must be answered in the negative. Cor- 
 porations possessing and exercising the right of eminent domain, owe 
 duties to the public from the performance of which they are not al- 
 lowed to escape by a sale or lease of their franchises, without first 
 obtaining the consent of the legislature. The franchise of a corpora- 
 tion having the right to receive tolls may be levied on to satisfy an 
 execution against the corporation, and in this way it may be deprived 
 of its corporate powers and privileges. And they may be lost by the 
 foreclosure of a legally executed mortgage. And they may also be 
 lost by laches in reclaiming them when they have been illegally sold, 
 leased or assigned. But subject to these well-defined exceptions, it is 
 now settled by an overwhelming weight of authority that public or 
 quasi-public corporations, which possess and exercise the right of 
 eminent domain, or its equivalent, owe duties to the public, as well 
 as to their stockholders ; and that they can not sell or lease their cor- 
 porate powers and privileges, and thereby disable themselves from 
 performing their public duties, without legislative authority. It is the 
 duty of gas companies, water companies, electric light companies, 
 
 1 Statement abridged. Part of opinion omitted.
 
 10/2 BRUNSWICK G. L. CO. V. UNITED G., F. AND L. CO. 309 
 
 telegraph and telephone companies, street railway companies, and all 
 similar corporations, which have obtained the right to use the public 
 streets for the erection or extension of their works, to serve the public 
 faithfully and impartially, and at reasonable rates. And this is a duty 
 the performance of which may be enforced by the courts. And one 
 reason why these corporations are not allowed to sell or lease their 
 corporate powers and franchises, without legislative authority, is that 
 if they were able to do so, they might thereby disable themselves 
 from the performance of their public duties, and thus escape from the 
 power of the courts and of the legislature to enforce their perform- 
 ance. 
 
 But a still more serious objection to the traffic in corporate fran- 
 chises is the ease with which such a power could be used to create 
 monopolies. By its exercise, a single corporation could easily be- 
 come possessed of the corporate powers and privileges of all its rivals, 
 and thereby annihilate competition and obtain a complete control of 
 the markets. Such combinations are usually hurtful, and sound pub- 
 lic policy requires that they be kept under legislative supervision and 
 restraint. 
 
 To the argument that similar combinations may be made by indi- 
 viduals, it has been aptly replied that men are mortal, and their com- 
 binations short-lived, but corporations are immortal, and their com- 
 binations and acquisitions may go on forever; that they may add field 
 to field, wealth to wealth, and power to power, till they become too 
 strong for the government itself ; that all experience shows that such 
 accumulations of wealth and power are dangerous to the public wel- 
 fare ; and that while society can endure the accumulations and com- 
 binations of mortals, which must end at the grave, it can not endure 
 similar accumulations and combinations of power by corporations, 
 which may continue forever. * * * 
 
 (Citinaf and commenting upon as supporting this view Stockton v. 
 Central Railroad, 50 N. J. Eq. 52; Feitsam v. Hay, 122 111. 293;* 
 People v. Chicago Gas Trust, 130 111. 268 ; 3 People v. Sugar Re- 
 fining Co., 121 N. Y. 582*. ) 
 
 The law does not assume that all combinations of corporate pow- 
 ers and franchises are necessarily hurtful. It recognizes the fact that 
 they are sometimes beneficial, and provides a way by which they may 
 be lawfully made. But as such combinations are liable to be made 
 for improper purposes and with conditions annexed to them which 
 are inadmissible, sound public policy requires that they be made un- 
 der legislative supervision and restraint. 
 
 In the present case the Brunswick Gas Light Company undertook 
 to lease all its property, and all its corporate rights and privileges, to 
 the United Gas, Fuel and Light Company for twenty-five years. The 
 latter company took possession of the works and held them for sev- 
 enteen and a half months, making improvements upon them and pay- 
 
 IILCCII tuiu A nnii iiioiiius, uiaKiug iiiipruvcincii 
 * Supra, p. 141. 3 Supra, p. 1054. * Supra, p. 100.
 
 309 POWER TO ALIENATE. IO/3 
 
 ing a portion of the agreed rent. It then abandoned the works, and 
 possession was resumed by the lessors. 
 
 This is a suit by the lessors against the lessees for a breach of the 
 covenants contained in the lease. It was contended in defense that 
 the lease was illegal and void, and that no recovery could be had 
 upon it. The presiding justice ruled, as a matter of law, that the 
 plaintiff company and the defendant company had power to execute 
 the lease, and that a recovery could be had for a breach of the cove- 
 nants contained in it. We think the ruling was erroneous. No legis- 
 lative authority for making the lease was shown, and, without such 
 authority, we think the lease must be regarded as ultra vires and 
 void. The authorities bearing upon the question are not in entire har- 
 mony; but the weight of authority seems to us to be overwhelm- 
 ingly in favor of this conclusion. See 2 Beach on Corporations, 
 sections 831 to 856, inclusive, and the six pages of authorities, pro 
 and con, cited under the section last cited. The cases are too numer- 
 ous for citation here, and the few cases to which we have referred 
 will furnish a key to all of them. 
 
 But it is claimed that, inasmuch as the defendant company took 
 and held possession of the plaintiff company's works by virtue of the 
 lease, ultra vires is no defense to an action to recover the agreed 
 rent. We do not doubt that the plaintiff company is entitled to re- 
 cover a reasonable rent for the time the defendant company actually 
 occupied the works ; but do not think the amount can be measured 
 by the ultra vires agreement. We think that in such cases the recov- 
 ery must be had upon an implied agreement to pay a reasonable rent ; 
 and that while the ultra vires agreement may be used as evidence, in 
 the nature of an admission, of what is a reasonable rent, it can not 
 be allowed to govern or control the amount. It seems to us that it 
 would be absurd to hold that the ulta vires lease is void and at the 
 same time hold that it governs the rights of the parties with respect 
 to the amount of rent to be recovered. A void instrument governs 
 nothing. We think the correct rule is the one stated by Mr. Justice 
 Gray, in a recent case in the United States Supreme Court. He said 
 that a contract made by a corporation which is unlawful and void, be- 
 cause beyond the scope of its corporate powers, does not by being 
 carried into execution become lawful and valid ; and that the proper 
 remedy of the aggrieved party is to disaffirm the contract and sue to 
 recover as on a quantum meruit the value of what the defendant has 
 actually received the benefit of. Pittsburgh, etc,, v. Keokuk, etc., 
 131 U. S. 371. We think this is the correct rule. 2 Beach on Corp., 
 423, and cases there cited. 
 
 Exceptions sustained. 
 
 Note. See, also, 1826, Ammant v. New Alex. Tp. R., 13 Serg. & R. (Pa.) 
 210, 15 Am. Dec. 593; 1845, Susquehanna Canal Co. v. Bonham, 9 Watts & 
 S. 27, 42 Am. Dec. 315; 1859, Coe v. C. P. & I. R., 10 Ohio St. 372, 75 Am. 
 Dec. 518; 1880, Gooch v. McGee, 83 N. C. 59, 35 Am. Rep. 558; 1887, Chicago 
 Gas L. Co. v. People G. L. Co., 121 111. 530, 19 Am. St. R. 663; 1892, Overton 
 Bridge Co. v. Means, 33 Neb. 857, 29 Am. St. R. 514 ; 1892, Union Pacific R. 
 68 WIL. CAS.
 
 IO74 B - AND L - R - CO - V - METCALFE. 3IO 
 
 Co. v. C., R. I. & P. R., 51 Fed. Rep. 309; 1893, Gardner v. Mobile, etc., R. 
 Co., 102 Ala. 635, 48 Am. St. R. 84; 1895, Reynolds v. Reynolds Lumber Co., 
 169 Pa. St. 626, 47 Am. St. R. 935; 1895, Bank v. Tanning Co., 170 Pa. St. 1; 
 1896, Johnson Co. v. Miller, 174 Pa. St. 605, 52 Am. St. R. 833; 1897, Smith 
 v. R. Co., 182 Pa. St. 139 ; 1898, Risdon Iron & Locomotive Works v. Citi- 
 zens' Traction Co., 122 Cal. 94, 54 Pac. Rep. 529 ; 1899, Harding v. Am. Glucose 
 Co., 182 111. 551, 74 Am. St. R. 189. 
 
 Sec. 310. Same, (d) Contra. 
 
 BTJLLITT, J., IN BARDSTOWN AND LOUISVILLE RAILROAD COM- 
 PANY v. METCALFE. 
 
 1862. IN THE COURT OF APPEALS OF KENTUCKY. 4 Metcalfe (Ky.) 
 Rep. 199, on pp. 206-210, 81 Am. Dec. 541, on 546550. 
 
 [The charter of the railroad company authorized its directors to 
 borrow money not exceeding $50.000; the board of directors author- 
 ized the president to borrow $30,000 from Metcalfe, and execute a 
 mortgage upon the road and its property. This was done, default in 
 payment made, foreclosure suit brought, and judgment that the road 
 be leased for eight years to the highest bidder, the rent to go to pay 
 the debt, and if no one would lease, that the road be sold to the 
 highest bidder. Appeal was taken from this judgment.] 
 
 4. It is contended that the appellant had no power to mortgage its 
 road or franchises. This question, and the next one that we shall 
 consider, were raised by a general demurrer to the petition. Gener- 
 ally, a private corporation has an implied power to do whatever may 
 be necessary to execute its express powers, and to accomplish the 
 purposes for which it was formed. The appellant was expressly au- 
 thorized to borrow this money, but was not expressly authorized to 
 make a mortgage. Had it not an implied power to do so? It can 
 not be doubted that a manufacturing corporation having power, ex- 
 press or implied, to borrow money, might, unless expressly prohibited, 
 mortgage its property to secure the debt. But it is contended that a 
 railroad corporation stands upon a different footing, because its road 
 is built for public use as well as for the profit of its stockholders ; that 
 it is under a duty to the public to keep its road in repair, and carry on 
 its business for the transportation of freight and passengers ; and that 
 it can not relieve itself from those duties by conveying its road away. 
 
 These views seem to be sustained by several English decisions. At 
 any rate, it seems to be settled in England that a railway company 
 can not, without express authority from parliament, assign or mort- 
 gage or lease its road, upon the ground that it is against public policy. 
 An examination of several of those cases does not enable us to state 
 the precise views of public policy out of which that doctrine sprung. 
 It probably arose in part of a general statute which is not in force 
 here. Judge Redfield, however, says: "The ground upon which 
 the decisions in England and America, which hold the franchises of
 
 310 POWER TO ALIENATE. IO/5 
 
 corporations not to be assignable, except by consent of the legislature, 
 rest is mainly the same as that upon which it has been held in this 
 country, that such franchises are beyond the legislative control ; namely, 
 that the charter constitutes a contract between the sovereignty and the 
 corporation, on the one part, for the grant of certain privileges and im- 
 munities, and upon the other, for the performance of certain duties 
 and functions which are deemed an equivalent or consideration. * * * 
 The state confers upon railways some of its most essential powers 
 of sovereignty, that of eminent domain, and of a virtual monopoly, 
 in the transportation of freight and passengers, and in return therefor 
 stipulates for the performance of those duties by the corporation. 
 The corporation have no more right in equity and justice to transfer 
 their obligations to other companies, or to natural persons, than the 
 state has to withdraw them altogether." Redfield on Railways, 422, 
 note 14. 
 
 The doctrine, according to Judge Redfield, rests upon the ground 
 that the corporation is under an obligation to the state to build and 
 operate its road. Such was formerly the rule in England, even as to 
 a railway corporation that had not made any express undertaking to 
 that effect, and to which no exclusive privileges had been granted. 
 Redfield on Railways, section 192. But concerning that class of 
 cases, the doctrine seems to have been overruled in England, and has 
 never prevailed in America. Redfield on Railways, section 192, and 
 notes. The appellant did not expressly undertake to build the road 
 authorized by its charter; nor did its charter expressly declare that it 
 should do so ; nor was any exclusive right to do so conferred upon it. 
 In our opinion, the appellant was not bound to commence the road, 
 nor to complete it after commencing, nor to put it in operation after 
 completion, nor to continue it in operation. It might have forfeited 
 its charter by non-user, but was not bound to use it. So long as it 
 shall avail itself of the privileges conferred by its charter, it will be 
 liable to the burdens thereby imposed. But, in our opinion, neither 
 the public nor any individual not connected with it can compel it to 
 exercise its corporate franchises, or make it pay damages for failing 
 to do so. The doctrine under consideration has, therefore, no founda- 
 tion in this case, if the ground on which it rests is earnestly stated by 
 Judge Redfield. Nor do we perceive any other solid ground on 
 which to place it. 
 
 We do not suppose that the appellant could mortgage its corporate 
 existence, or any prerogative franchise conferred upon it. But the 
 right to build and use a railroad is not a prerogative franchise. It 
 has, indeed, been said that "both currency and internal communica- 
 tion between different portions of the state are exclusively the pre- 
 rogatives of sovereignty"; Redfield on Railways, 23; and that "the 
 right to build and use a railroad, and take tolls or fares, is a franchise 
 of the prerogative character, which no person can legally exercise 
 without some special grant of the legislature"; Redfield on Rail- 
 ways, 23, note i. Possibly these passages were not designed to 
 mean more than this : A road can not be made over the lands of un-
 
 10/6 B. AND L. R.'CO. V. METCALFE. 310 
 
 willing proprietors except under authority from the state ; and the 
 state, in order to encourage internal improvements, may grant to a 
 corporation or individual the exclusive right to build a road between 
 two points. In the absence of any positive law upon the subject, our 
 opinion is that an individual has as much right to build a railroad 
 over his own land, or the land of others with their consent, as he has 
 to build a stage or a wagon ; and as much right to use the former as the 
 latter in carrying freight and passengers for pay. 
 
 The denial of the right of a railroad corporation to transfer its 
 road has sometimes been based upon considerations of general con- 
 venience and public interest, and upon the ground that the corpora- 
 tion, having been chosen by the legislature as the fit depositary of the 
 right to construct and operate the road, should not be permitted to 
 transfer it to irresponsible parties. To this argument several objec- 
 tions present themselves. The appellant's directors, in authorizing 
 this mortgage to Metcalfe, declared themselves "satisfied that to 
 furnish and complete the road they will require the sum of thirty 
 thousand dollars in addition to the means at their command." As- 
 suming, as we must do, that the loan was necessary to complete the 
 road, and assuming it to be probable, as we may do, that the loan 
 could not have been effected without a mortgage, considerations of 
 general convenience seem to be on the side of the power to make the 
 mortgage rather than against it. 
 
 The public had an interest in seeing the road constructed and op- 
 erated according to the terms of the charter. But whether it shall be 
 thus operated by A or B, by an individual or corporation, does not 
 seem to be a matter of any interest whatever to the public. Under 
 the charter of the appellant, its road, while held by it, is under the 
 control of its stockholders. A single person, by purchasing all the 
 stock, can control the road as completely as if he owned it individu- 
 ally. A purchaser, under its mortgage, would take the road subject 
 to the terms of the charter designed to protect the public, and would 
 be bound thereby as fully as the corporation is. 
 
 We perceive no reason to suppose that a purchaser of all the prop- 
 erty of appellant would be less responsible in a pecuniary point of 
 view than the appellant. Nor do we perceive any other reason to 
 suppose that the individual responsibility of the purchaser would not 
 be quite as beneficial to the public as the corporate responsibility of 
 the appellant. General convenience requires that the appellant shall 
 in some manner be compelled to pay the money it borrowed. But it is 
 contended that this should be done by merely subjecting the accruing 
 profits. To do that effectually it might be necessary to appoint a re- 
 ceiver to take charge of the road, because under the management of 
 the directors it is possible that no profits might accrue, while under a 
 different management the road might be profitable. Yet every argu- 
 ment against allowing the appellant to mortgage its road applies with 
 equal force against the appointment of a receiver to control it, with 
 perhaps the additional argument that a receiver would not be person- 
 ally liable, like a purchaser, as a common carrier.
 
 310 POWER TO ALIENATE. IO77 
 
 That a mortgage by a railway company to secure money borrowed 
 for the construction of its road is not opposed to the public policy of 
 this state is indicated by the general course of legislation upon the 
 subject. We believe that all the railroads in the state, except that of 
 the appellant, were constructed under charters authorizing such mort- 
 gages ; and mortgages made by the Covington and Lexington Com- 
 pany and by the Lexington and Big Sandy Company, without express 
 authority either to make a mortgage or to borrow money, were after- 
 ward ratified by the legislature. And we are not aware of an instance 
 in which the legislature, when applied to, has refused to confer such 
 power or to ratify the exercise of it. 
 
 The facts that the appellant voluntarily mortgaged its property to 
 secure the money which it was expressly authorized to borrow, and 
 that the bondholders invested their money upon the faith of the mort- 
 gage, furnish, in our opinion, a sufficient distinction to relieve this 
 case from the operation of the distinction in the case of Winchester 
 and Lexington Turnpike Co. v. Vimont, 5 B. Monroe i, in which it 
 was held that a turnpike road could not be sold for a general debt of 
 the corporation. If the decision in that case could be regarded as 
 denying that property or fi'anchises, in the use of which the public 
 have an interest, can be assigned, we might perhaps hesitate to follow 
 it, in view of several other decisions of this court. In Jouitt v. Lewis, 
 4 Litt. 1 60, the vendee of a turnpike road was held liable upon his 
 covenant to keep it in repair without any question being made as to 
 the validity of the sale. In Trustees of Maysville v. Boon, 2 J. J. 
 Marsh. 227, a feiry franchise was held to be alienable. And in Mc- 
 Cauley v. Givens, i Dana 261, a lease of a ferry under an order of 
 court was held to be valid. Our decision rests upon the ground that 
 the appellant, having been authorized to borrow this money, had im- 
 plied power to execute a mortgage to secure its payment. The Amer- 
 ican decisions cited in Pierce on Railroad Law, chapter 20, and Redfield 
 on Railways, section 235, note 19, present such a conflict of opinion 
 that we have felt free to consider the question as an open one, and 
 have not deemed it advisable to attempt to sustain our opinion by re- 
 ferring to cases which are perhaps counterbalanced by opposing au- 
 thorities. * * * 
 
 Reversed on another ground. 
 
 Compare, 1869, Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 
 300; 1888, State v. Western, etc., Co., 40 Kan. 96, 10 Am. St. Rep. 166; 1899, 
 Michigan Telephone Co. v. St. Joseph, 121 Mich. 502, 80 Am. St. Rep. 520, 
 80 N. W. 383.
 
 10/8 JONES V. GUARANTY AND INDEMNITY COMPANY. 311 
 Sec. 311. (e) Power to mortgage. 
 
 JONES v. GUARANTY AND INDEMNITY COMPANY. 1 
 
 1879. IN THE SUPREME COURT OF THE UNITED STATES. 101 
 U. S. Rep. 622-633. 
 
 [Appeal from United States Circuit Court, E. D. New York. The 
 New York Kerosene Oil Co., and the New York Guaranty and In- 
 demnity Company were both New York corporations. In 1867, Coz- 
 zens, president of the oil company, applied to the guaranty company 
 for a loan for $100,000; this was agreed to, and $50,000 advanced; 
 and to secure the same, by agreement with Cozzens, a bond and mort- 
 gage were directed to be executed, after the written consent of the 
 holders of more than two-thirds of the stock of the oil company had 
 been obtained. The mortgage was duly executed to secure a loan of 
 $100,000, and was stated to be given to cover any advances then 
 made, or thereafter to be made by the guaranty company, to Cozzens 
 to the amount of $100,000, on condition that whenever any sum was 
 so advanced the amount and date should be indorsed and signed by 
 Cozzens on the bond and whenever he made any payment such sum 
 should also be indorsed on the bond. No dishonesty was alleged or 
 shown in the transactions, and the company had express authority to 
 secure its debts "contracted by it in the business for which it was in- 
 corporated, by mortgaging any or all of its real estate." The unse- 
 cured creditors, after the corporation became insolvent, attacked the 
 validity of the mortgage. The circuit court sustained it, and this de- 
 cision is brought here for review.] 
 
 MR. JUSTICE S WAYNE. * * * The central and controlling 
 questions to be determined are : 
 
 Whether the oil company had the power to give a mortgage for 
 future advances; and, 
 
 Whether the mortgage here in question is, in the view of a court of 
 equity, for the debt of the oil company or for the debt of Abraham 
 M. Cozzens. 
 
 The oral arguments of the eminent counsel who appeared before us 
 were addressed principally to these subjects. Numerous other points 
 are made by the counsel for the appellant in his brief, and have been 
 fully discussed in the printed arguments upon both sides. They are 
 minor in their character, and we think involve no proposition that ad- 
 mits of doubt as to its proper solution. We are satisfied with the 
 disposition made of them by the circuit court, and shall pass them by 
 without further remark. 
 
 At the common law, every corporation had, as incident to its ex- 
 istence, the power to acquire, hold and convey real estate, except so 
 far as it was restrained by its charter or by act of parliament. This 
 comprehensive capacity included also personal effects of every kind. 
 
 1 Statement abridged. Part of opinion omitted.
 
 POWER TO ALIENATE. 1 079 
 
 The jus disponendi was without limit or qualification. It extended 
 to mortgages given to secure the payment of debts, i Kyd Corp., 
 69, 76, 78, 108; Angell & Ames, 145; 2 Kent Com., 282; Rey- 
 nolds v. Commissioners of Stark County, 5 Ohio 204; White- 
 water Valley Canal Co. v. Valette, 21 How. 414. 
 
 A mortgage for future advances was recognized as valid by the 
 common law. Gardner v. Graham, 7 Vin. Abr. 22, pi. 3. See 
 also, Brinkerhoff v. Marvin, 5 Johns. (N. Y.) Ch. 320; Lawrence v. 
 Tucker, 23 How. 14. 
 
 It is believed that they are held valid throughout the United States, 
 except where forbidden by the local law. 
 
 The statute under which the oil company came into existence made 
 it "capable in law of purchasing, holding and conveying any real and 
 personal estate, whenever necessary to enable" it to carry on its busi- 
 ness: but it was forbidden to "mortgage the same, or give any lien 
 thereon." This disability was removed by the later act of 1864, 
 which expressly conferred the power before withheld. This change 
 was remedial, and the clause which gave it is, therefore, to be construed 
 liberally with reference to the ends in view. 
 
 The learned counsel for the appellant insisted that a mortgage could 
 be competently given by the oil company only to secure a debt in- 
 curred in its business and already subsisting. This, we think, is too 
 narrow a construction of the language of the law. A thing may be 
 within a statute but not within its letter, or within the letter and yet 
 not within the statute. The intent of the lawmaker is the law. The 
 People v. Utica Insurance Co., 15 Johns. (N. Y.) 358; United States 
 v. Babbit, i Black 55. 
 
 The view of the court in Thompson v. New York and Hudson 
 River Railroad Co., 3 Sandf. (N. Y.) Ch. 625, was sounder and 
 better law. There the charter authorized the corporation to build a 
 bridge. It found one already built that answered every purpose, and 
 bought it. The purchase was held to be intra vires and valid. Here 
 the object of the authorization is to enable the company to procure 
 the means to carry on its business. Why should it be required to go 
 into debt, and then borrow, if it could, instead of borrowing in ad- 
 vance and shaping its affairs accordingly? No sensible reason to the 
 contrary can be given. If it may borrow and give a mortgage for a 
 debt antecedently or contemporaneously created, why may it not thus 
 provide for future advances as it may need them? This may be more 
 economical and more beneficial than any other arrangement involving 
 the security authorized to be given. In both these latter cases the 
 ultimate result with respect to the security would be just the same as 
 if the mortgage were given for a pre-existing debt in literal compli- 
 ance with the statute. No one could be wronged or injured, while 
 the corporation, whom it was the purpose of the law to aid, might be 
 materially benefited. Is not such a departure within the meaning, if 
 hot the letter, of the statute ? There would be no more danger of 
 the abuse of the power conferred than if it were exercised in the man- 
 ner insisted upon. The safeguard provided in the required assent of
 
 I08O JONES V. GUARANTY AND INDEMNITY COMPANY. 311 
 
 stockholders would apply with the same efficacy in all the cases. The 
 object of the loan, the application of the money, and the restraints 
 imposed by the charter in those particulars, would be the same 
 whether the transaction took one form or the other. According to 
 our construction the company could give no mortgage but one grow- 
 ing out of their business, and intended to aid them in carrying it on. 
 In legal effect the difference between the two constructions is one 
 merely of mode and manner, and not of substance. 
 
 Such securities are not contrary to the law or public policy of the 
 state. Many cases are found in her reported adjudications where 
 both judgments and mortgages for future advances have been sus- 
 tained. 
 
 Our view is not without support from the language of the statute, 
 that "every mortgage so made shall be as valid to all intents and pur- 
 poses as if executed by an individual owning such real estate." If 
 this mortgage had been given by individuals, the question we are ex- 
 amining doubtless would not have been brought before us for consid- 
 eration. 
 
 When a deed is fatally defective for the want of a sufficient consider- 
 ation to support it, such a consideration subsequently arising may cure 
 the defect and give the instrument validity. Sumner v. Hicks, 2 
 Black 532. It is not necessary to go through the form of executing a 
 second deed to take the place of the first one. This principle applies 
 to the mortgage after all the advances had been made, conceding that 
 it had before been invalid for the reason insisted upon. 
 
 The statute of 1864 neither expressly forbids nor declares void mort- 
 gages for future advances. 
 
 If the one here in question be ultra vires, no one can take advan- 
 tage of the defect of power involved but the state. As to all other 
 parties it must be held valid, and may be enforced accordingly. Sil- 
 ver Lake Bank v. North, 4 Johns. (N. Y. ) Ch. 370; National Bank 
 v. Mathews, 98 U. S. 621. In the latter case this subject was fully 
 examined. 
 
 A corporation can act only by its agents If there were any such 
 technical defect as is claimed touching the execution of this mort- 
 gage, it has been cured by acquiescence and ratification by the mort- 
 gagor. 
 
 No one else can raise the question. All other parties are concluded. 
 Gordon v. Preston, i Watts (Pa.) 385. 
 
 Where money had been obtained by a corporation upon its securi- 
 ties, which were irregular and ultra vires, but the money was applied 
 for the benefit of the company, with the knowledge and acquiescence 
 of the shareholders, the company and the shareholders were estopped 
 from denying the liability of the company to repay it. And the same 
 result follows where such securities are issued with the knowledge of 
 the shareholders, so far as the money thus raised is applied for the 
 benefit of the company. In re Cork & Youghal Railway Co., Law 
 Rep. 4 Ch. 748. 
 
 A court of equity abhors forfeitures, and will not lend its aid to
 
 $ 312 POWER TO ALIENATE. !O8l 
 
 enforce them. Marshall v. Vicksburg, 15 Wall. 146. Nor will it 
 give its aid in the assertion of a mere legal right contrary to the clear 
 equity and justice of the case. Lewis v. Lyons, 13 111. 117. 
 
 The second point to be considered is whether the mortgage was for 
 the debt of Cozzens or for the debt of the oil company. * * * 
 
 We are satisfied beyond a doubt that it was the debt of the oil 
 company and not his debt that was intended to be secured and was 
 secured by the mortgage. * * * 
 
 Decree affirmed. 
 
 Note. As to power to mortgage property : 1830, Jackson v. Brown, 5 Wend. 
 590 ; 1832, Leggett v. N. J. M. & B. Co., 1 Saxt. Ch. (N. J.) 541, 23 Am. Dec. 728 ; 
 1833, Gordon v. Preston, 1 Watts (Pa.) 385, 26 Am. Dec. 75; 1852, Susque- 
 hanna, etc., Go. v. Gen'l Ins. Co., 3 Md. 305, 56 Am. Dec. 740; 1867, Hendee 
 v. Pinkerton, 14 Allen (Mass.) 381; 1887, Warfield v. Marshall Co., 72 Iowa 
 666, 20 Am. St. Rep. 263; 1892, Evans v. Boston Heating Co., 157 Mass. 37; 
 1894, Benbow v. Cook, 115 N. C. 324, 44 Am. St. Rep. 454; 1896, Ashley Wire 
 Co. v. Illinois Steel Co., 164 111. 149, 56 Am. St. Rep. 187; 1898, First Nat'l 
 Bank v. Winchester, 119 Ala. 168, 72 Am. St. Rep. 904; 1899, New Britain 
 Nat'l Bank v. Cleveland Co., 158 N. Y. 722, 53 N. E. Rep. 1128; 1899, G. V. B. 
 Mining Co. v. First Nat'l Bank, 95 Fed. Rep. (C. C. A.) 23; 1899, Rutherford, 
 etc., Elec. Co. v. Franklin Trust Co., 58 N. J. Eq. 584, 43 Atl. Rep. 1098; 1900, 
 Citizens' State Bank v. McGraft Lumber Co., 122 Mich. 573, 81 N. W. Rep. 
 567. 
 
 Sec. 312. (f) Franchise. 
 
 i. Not without special authority. 
 
 1302. "Royal franchises never pass by assignment, without special 
 words in the Kings' grant" Quo warranto against John Arundel, and 
 asked him by what warrant he held a market once a week and a fair 
 twice a year in his manor of C. Answer held by descent from our 
 father who was enfeoffed by Walter de Ralegh of the manor of C. 
 with appurtenances, to whom King John granted the franchises: 
 Held as above. Y. B. 30 Ed. I, 220, Cornish Iter. 
 
 See Fietsam v. Hay, 122 111. 2935*3 Am. St. Rep : 492, supra, 
 p. 141, 25, and note; Memphis & L. R. R. Co. v. R. Commrs., 112 
 U. S. 609, supra, p. 143, 26. 
 
 Note. See note, supra, p. 157 ; also, 1895, Bank v. Fanning, 170 Pa. St 1 
 1897, State v. Anderson, 97 Wis. 114 ; 1898, Central Trust Co. v. W. N. C R 
 Co., 89 Fed. Rep. 24; 1899, Michigan Telephone Co. v. St. Joseph, 121 Mich' 
 602, 80 N. W. 383, 80 Am. St. Rep. 520, contra.
 
 1082 STATE V. JOHN SHERMAN. 
 
 Sec. 313. 2. Theory of a sale, when authority to convey fran- 
 chise is given. 
 
 THE STATE OF OHIO, Ex REL. ATTORNEY-GENERAL, v. JOHN 
 SHERMAN ET AL. 1 
 
 1872. IN THE SUPREME COURT OF OHIO. 22 Ohio St. Rep. 
 
 4H-435- 
 
 [Quo warranto against defendants, as claiming to be the P., F. W. 
 & C. Railway Co. in Ohio, without authority. The O. & P. Co. T 
 by proper authority from Pennsylvania and Ohio, had built a railroad 
 from Pittsburg to Crestline, Ohio; the O. & I., by authority of Ohio 
 and Indiana, from Crestline, Ohio, to Ft. Wayne, Ind. ; and the F. 
 W. & C., by authority of Indiana and Illinois, from Ft. Wayne to 
 Chicago. These three roads, by proper authority from each of the 
 states, were duly consolidated into the P., F. W. & C. Railroad Co., 
 and a certificate of its organization, according to the laws of Ohio 
 filed with secretary of state of Ohio, as required. This company 
 issued its bonds as authorized, but made default in payment of interest 
 thereon, whereupon proceedings to foreclose the mortgages securing 
 the bonds were had in the proper courts, and a sale made in 1861 to 
 Lanier et al., as trustees for the creditors, "of said railroad and the 
 property and franchises connected therewith." Lanier and his asso- 
 ciates became duly incorporated under the laws of Pennsylvania, In- 
 diana and Illinois, as the P., F. W. & C. Railway Co., and Lanier 
 et al. conveyed by deed all the property and franchises pertaining to 
 the P., F. W. & C. Railroad Co. Afterward, in 1863, this P., F. 
 W. & C. Railroad Co. conveyed by deed properly executed its "fran- 
 chise to be. a corporation," in conformity with the law of Ohio, to 
 the P., F. W. & C. Railway Co., and, under this conveyance, the 
 latter company claimed to have become a legal and valid corporation 
 in Ohio.] 
 
 WELCH, C. J. * * * The Questions to be decided, therefore, are: 
 
 i. Is the Pittsburg, Fort Wayne and Chicago Railway Company 
 a corporation of Ohio? 2. If not such corporation, has it the right 
 and power, as a foreign corporation, to own, operate and maintain its 
 road in Ohio, and for that purpose to use and enjoy the privileges 
 and franchises specified in the information? We will consider these 
 two questions in their order. 
 
 i . Are the defendants an Ohio corporation ? 
 
 Their claim is, that the consolidated. company, the Pittsburg, Fort 
 Wayne and Chicago Railroad Company, was an Ohio corporation, 
 and that its charter, "its franchise to be," or right of existence, has 
 passed to, or become vested in the defendants, by virtue of the deed 
 made under the act of April 4, 1863. Unless this act, and the deed 
 
 1 Statement of facts abridged. Arguments omitted. Only part of opinion 
 given.
 
 313 POWER TO ALIENATE. 1083 
 
 made under it, are sufficient and effectual so to transfer or vest the 
 charter of the consolidated company, it is quite unnecessary to in- 
 quire whether that company was, or is, a legal corporation of Ohio, 
 and we are saved the necessity of considering the various questions 
 made and argued by counsel, touching the legality of the consolida- 
 tion, and of the proceedings preliminary and antecedent thereto. 
 
 Assuming, then, for the present, what I believe to be the fact, that 
 the Pittsburg, Fort Wayne and Chicago Railroad Company was an 
 Ohio corporation, did its charter pass to or vest in the defendants, by 
 virtue of the deed and act of 1863, and thus constitute the defend- 
 ants, or rather thus constitute the Pittsburg, Fort Wayne and Chicago 
 Railway Company, an Ohio corporation ? 
 
 That a corporation can, when authorized by law so to do, transfer, 
 sell, or convey its charter or franchise to be a corporation, and thus 
 vest it in others, seems to be quite well settled by judicial decisions. 
 And we have no objections to make to this proposition of law, except 
 it may be to the form of stating it. The real transaction in all such 
 cases of transfer, sale, or conveyance, in legal effect, is nothing more 
 or less, and nothing other, than a surrender or abandonment of the 
 old charter by the corporators, and a grant de novo of a similar char- 
 ter to the so-called transferees or purchasers. To look upon it in 
 any other light, and to regard the transaction as a literal transfer or 
 sale of the charter, is to be deceived, we think, by a mere figure or 
 form of speech. The vital part of the transaction, and that without 
 which it would be a nullity, is the law under which the transfer is 
 made. The statute authorizing the transfer and declaring its effect, 
 is the grant of a new charter, couched in few words, and to take ef- 
 fect upon condition of the surrender or abandonment of the old char- 
 ter ; and the deed of transfer is to be regarded as mere evidence of 
 the surrender or abandonment. According to our understanding of 
 the cases cited by counsel for the defendants^in support of the doc- 
 trine of the transferability of such charters, this is the view enter- 
 tained wherever the courts have spoken directly of the legal effect 
 of such conveyances. And such seems to be the view taken by coun- 
 sel themselves. For they say, among other things:. "If the corpora- 
 tors ('of the old company') saw fit, nobody would question their 
 right to dissolve the old corporation and surrender their franchise to 
 the state, and no question could be made of the right of the state, by 
 a general law, to provide for conferring it upon the purchasers of their 
 property." And the counsel add: ''That is what, in effect, is done 
 by this act," the act of 1863. We agree to this proposition of coun- 
 sel, with a single proviso. We think, with them, that "that is what, 
 in effect, is done," provided anything is constitutionally and effectu- 
 ally done. 
 
 In other words, the legislature of Ohio, by the act of 1863, have 
 granted to the defendants a charter of incorporation similar to that 
 held by the Pittsburg, Fort Wayne and Chicago Railroad Company, 
 provided the legislature, at the date of the act, had constitutional 
 power to grant such a charter, and provided the requirements of the
 
 1084 STATE V. JOHN SHERMAN. 313 
 
 act have been complied with by the parties. It matters not if we re- 
 gard the charter granted as identical with the one surrendered a 
 something which really passes from the old or defunct corporation 
 into the hands of the legislature, and thence to the new organization. 
 There must be at the time constitutional power in the legislature, not 
 only to receive but also to reissue the charter. It must pass through 
 legislative hands before it can take life in a new organization. It 
 comes into their hands the work and offspring of the old constitution, 
 but it goes out again, if at all, as the work and offspring of the new 
 one, and subject to all its requirements and limitations. 
 
 By the present constitution of Ohio, the power of the legislature 
 to grant charters of incorporation is subjected to important limitations, 
 which did not exist under the constitution of 1802. One of these is, 
 that the grant must be made by a general law ; another is that the 
 charter must be subject to alteration and revocation by the legislature ; 
 and a third is, that the grant must be made in some such form as will 
 subject the stockholders to individual liability, to at least a certain 
 extent, for the debts of the corporation. The claim upon the part 
 of the state is that the act of April 4, 1863, is in violation of these 
 several provisions of the constitution ; or, if the act will admit of a 
 construction consistent with these provisions, then the claim is that 
 the provisions and requirements of the act, taken in their proper and 
 constitutional sense, have not been conformed to by the parties. 
 
 We have no hesitation in holding that the act of 1863 is not liable 
 to the objection that it is a "special act." It is a "general law," in 
 our judgment, within the meaning of article i, section 2, of the con- 
 stitution. In so holding we merely repeat, in substance, what has 
 been heretofore decided by this court in Cricket v. The State, 18 
 Ohio St. 9; Welker v. Potter, 18 Ohio St. 87. 
 
 The objection, that if the defendants did thus acquire a charter un- 
 der the act of 1863, that charter would not be subject to alteration or 
 repeal, has, in effect, been answered in what is said above. If the 
 charter thus acquired is to be regarded in law as identical with the 
 charter of the reorganized company, and not as a new charter issuing 
 directly from the legislature ; and if, in like manner, the charter of 
 the reorganized company is to be regarded not as a legislative grant 
 made to it, but as a grant directly from the original companies so con- 
 solidated, then it may be time that the charter would be unalterable 
 and irrevocable, and the act of 1863 be unconstitutional on that 
 ground. But, as we have already said, such is not the law of the 
 case, and the charter, if so vested, would remain, as other charters 
 granted under the present constitution, liable to amendment and re- 
 peal by the legislature. 
 
 But the trouble in defendants' case arises when we attempt to rec- 
 oncile their claim that they are an Ohio corporation under the act of 
 1863, with the third-named limitation in the constitution the limita- 
 tion in regard to individual liability. Under the present constitution 
 the legislature are powerless to grant a charter to any such corpora- 
 tion, unless the grant is made in a form that will secure the individual
 
 313 POWER TO ALIENATE. 1 085 
 
 liability of its stockholders for the debts of the corporation, at least 
 to the amount of their stock over and above their subscription. This 
 liability may be secured by an express provision in the act of incor- 
 poration. Where it is to exceed the amount of the stock, it must be 
 secured in that form. In the absence of any such provision in the 
 act of incorporation, I presume this provision of the constitution would 
 enter into and form part of the act of incorporation, and to that ex- 
 tent execute itself. In either case, however, the act of incorporation, 
 the grant of the charter, must be in some such form as will secure 
 this liability. It must require of the individuals availing themselves 
 of its provisions some acts as such, under and in pursuance of it, as 
 will subject them individually to its provisions, or to this provision of 
 the constitution in regard to liability. If it fails to do this, it is simply 
 unconstitutional and void. 
 
 The act of 1863, under which the defendants claim title, contains 
 no provision imposing liability upon individuals who may become 
 stockholders under it. Whether the act, properly interpreted, does or 
 does not require of the persons becoming incorporated under its pro- 
 visions, acts or proceedings which will secure their individual liability 
 as stockholders, is totally immaterial to the present case. Because, if 
 it is to be interpreted as requiring such acts namely, an organization 
 of individuals under the act, such as is required by the act of April 
 1 1, 1861 ; a deed to be made to, and accepted by them, or a taking of 
 stock by them in the company thus organized then the defendants 
 have put a wrong interpretation upon the act, and have failed to com- 
 ply with its provisions. On the other hand, if they have rightly in- 
 terpreted the act, then the act itself is unconstitutional and void, for the 
 want of adequate provisions to secure the individual liability of stock- 
 holders becoming incorporated under its provisions. I presume it is 
 not claimed on behalf of defendants that they have done any act, by 
 way of organization, the taking of stock, or the acceptance of the deed 
 made under the act of 1863, which subjects them, as individuals, to 
 any liability whatever beyond that incurred by becoming members of 
 the foreign company. They never organized under the- Ohio act ; 
 their organization was complete before it was passed. They took no 
 stock under the Ohio act ; their stock had already been taken under 
 the Pennsylvania act. Nor was the deed made to, or accepted by 
 them ; it was made to, and accepted by the corporation, of which they 
 were members. As such corporation it had no power, by any act 
 whatever, to pledge the individual liability of its stockholders. The 
 powers of a corporation are limited to the common property and com- 
 mon interests of the organization. Over these, and within the scope 
 and purpose of its organization, a majority of its members, acting 
 through and by its officers and agents, can exercise dominion and con- 
 trol, and bind its individual members. Beyond this common fund 
 and outside this scope, the corporation, as such, is powerless to bind 
 its individual members. In some cases it has been found very diffi- 
 cult to determine the exact line between what may be done by a ma- 
 jority of the corporators, thus acting by and through common agents,
 
 1086 STATE V. JOHN SHERMAN. 313 
 
 and what can only be effected by the individual consent of each and 
 all ; but no difficulty of the kind can occur in solving questions of in- 
 dividual liability. There the line is distinctly drawn and marked. 
 The contract by which he becomes such member fixes the boundary 
 between the interests of the stockholder and those which are embarked 
 in the common enterprise, and thus subjected to the common control. 
 And this contract, be it express or implied, must be interpreted in the 
 light of the law as it existed at the time, and under which the organ- 
 ization is had. The private interests and rights of the stockholder, 
 not by this contract, or some subsequent individual act of his, placed 
 in the common fund, or subjected to the corporate control, are as 
 completely outside the reach and power of the corporation as are the 
 property and rights of strangers. 
 
 The element of individual liability must be ingrafted upon the 
 stock by the law under which the organization is had, or the stock is 
 taken, and by virtue of that organization or taking, or else by some 
 subsequent individual assent of the stockholder; otherwise he stands 
 liable for no more than the amount which, by his contract with the 
 company, he has agreed to contribute to the common fund. 
 
 In this view of the case, it plainly follows, that the defendants have 
 not become members of an Ohio corporation, created under the pres- 
 ent constitution of the state, for the reason that they have never sub- 
 jected themselves to the individual liability which it imposes on stock- 
 holders, and which it makes an indispensable element in the creation 
 of all such corporations. Either the defendants have misinterpreted 
 the act of 1863, and wholly failed to conform to its provisions, or, if 
 they have rightly interpreted it, as authorizing the bestowment of a 
 charter upon a foreign corporation, without securing any individual 
 liability of its stockholders, then the act itself is unconstitutional and 
 void. In either alternative the defendants are no legal corporation of 
 Ohio. It is unnecessary, therefore, to inquire whether their charter 
 as a corporation of Pennsylvania, gives them authority, as such cor- 
 poration, to accept an additional charter from another state ; or 
 whether, if they have such authority, it is competent for another 
 state, not having a constitution like ours, thus to grant them a second 
 charter that is, to make the grant directly to the corporation, eo 
 nomine, and not to the individuals composing it. If we concede both 
 the authority to accept a second and foreign charter, and the genera-1 
 power of another state in this manner to make the grant, it is enough 
 for the present case to say, that the power in question has been de- 
 nied to the legislature of Ohio by her present constitution. 
 
 [On the second question the court held that the company, as a for- 
 eign corporation, had a right under the Ohio laws to maintain and 
 operate its road in Ohio.] 
 
 Judgment of ouster as to being an Ohio corporation. 
 
 Note. See, 1845, Babcock v. Western R. Corp., 9 Mete. (Mass.) 553, 43 
 Am. Dec. 411; 1857. Phillips v. Winslow, etc., Co., 18 B. Mon. (Ky.) 431, 68 
 Am. Dec. 729; 1864, Shamokin Valley R. Co. v. Lawrence, 47 Pa. St. 465, 86 
 Am. Dec. 552; 1874, Metz v. Buffalo, etc., R. Co., 58 N. Y. 61, 17 Am. R. 201;
 
 3!4 POWER TO ACT IN A PERSONAL RELATION. IO8/ 
 
 1876, Morgan v. Louisiana, 93 U. S. 217; 1884, Memphis, etc., R. Co. v. R. 
 Commrs., 112 U. 8. 609, supra, p. 143; 1885, Chesapeake, etc., R. Co. v. Miller. 
 114 U. S. 176; 1887, Lawrence V. Morgans' L. & T. R., etc., Co., 39 La. Ann. 
 427, 4 Am. St. R. 265; 1889, Gulf, etc., R. Co. v. Newell, 73 Texas 334, 15 Am. 
 St. 788. 
 
 ARTICLE V. POWER TO ACT IN A PERSONAL RELATION. 
 
 Sec. 314. I. Power to take as trustee. 
 
 MR. JUSTICE STORY IN VIDAL ET AL. v. GIRARD'S EXECUTORS. 1 
 
 1844. IN THE SUPREME COURT OF THE UNITED STATES. 2 How- 
 ard (43 U. S.) 126-201, on pp. 187, 188. 
 
 [Stephen Girard, in his will, bequeathed to the city of Philadelphia 
 certain real and personal estate for the erection and support of a 
 college, upon the trusts, and for the uses designated in the will. The 
 city, by its charter, was capable in law to have, purchase, take, re- 
 ceive, possess and enjoy lands, tenements and hereditaments, liberties, 
 franchises and jurisdictions, goods, chattels and effects to them and 
 their successors forever, or for any other or less estate, without any 
 limitation as to value, amount or purpose. The heirs objected to the 
 will, and claimed, among other things, that the corporation could not 
 take as trustee.] 
 
 Part of Mr. Binney' s argument, p. 148. 
 
 The old doctrine was that a corporation could not be seized to a 
 use. Sugden on Uses, 10. 
 
 But it has been since settled that a corporation may be a trustee. If 
 it receives a deed, the legal estate will pass, provided the statutes of 
 mortmain do not prohibit it. If the trust is void, equity will decree 
 a reconveyance; but this can not be necessary, unless the legal estate 
 had passed. And if a corporation is incapable of executing the trust, 
 equity will appoint some person who is not. i Saunders on Uses, 
 346, 349; Willes on Trustees, 31; Levin on Trusts, 10, n; 2 
 Thomas's Co. Litt., 706, note; i Cruise Dig., 403, tit. 12, Trust., 
 ch. i, 89. 
 
 Also, that a corporation may be a trustee. 2 Vern., 411 ; 2 Bro. 
 P. C., 370; 7 Bro. P. C., 235. 
 
 Where a corporation abused a trust and was dismissed; see 3 Bro. 
 Ch. Cas., 171, 371; 4 Ves., 453; 2 Bro. Ch. Cas., 46; i Bro. Ch. 
 Cas.,467; 14 Bro. Ch. Cas., 253; 12 Mass. 547; 17 Serg. & R. 
 (Pa.) 89; 3 Rawle (Pa.) 170. 
 
 The cases in 12 Mass. 547 and 17 Serg. & R. (Pa.) 89 may not 
 appear at first to sustain the doctrine, but the cases are right. That 
 of 3 Rawle (Pa.) 170 is very much like the present, and establishes 
 the doctrine, that if the trust is for the welfare of the corporation, it 
 may take it. 
 
 1 Only that part of the opinion relating to a corporation's power to take as 
 trustee is given.
 
 1088 FEDELITY INS. & T. CO. V. NIVEN. 315 
 
 STORY, JUSTICE. Now, although it was in early times held that a 
 corporation could not take and hold real or personal estate in trust 
 upon the ground that there was a defect of one of the requisites to 
 create a good trustee, viz., the want of confidence in the person; 
 yet that doctrine has been long since exploded as unsound, and too 
 artificial ; and it is now held, that where the corporation has a legal 
 capacity to take real or personal estate, there it may take and hold it 
 upon trust, in the same manner and to the same extent as a private 
 person may do. It is true that if the trust be repugnant to, or incon- 
 sistent with the proper purposes for which the corporation was created, 
 that may furnish a ground why it may not be compellable to execute 
 it. But that will furnish no ground to declare the trust itself void, if 
 otherwise unexceptionable ; but it will simply require a new trustee 
 to be substituted by the proper court, possessing equity jurisdiction to 
 enforce and perfect the objects of the trust. 
 
 Note. See, 1826, Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58 (requires 
 special charter authority to be trustee) ; 1842, Commissioners v. Walker, 6 
 Howard (Miss.) 143, 38 Am. Dec. 433; 1858, Bell County v. Alexander, 22 
 Texas 351, 73 Am. Dec. 268; 1889, Minnesota Loan & Trust Co. v. Beebe, 40 
 Minn. 7 ; 1897, White v. Eice, 112 Mich. 403. 
 
 Sec. 315. 2. Power to act as administrator or executor. 
 
 FIDELITY INSURANCE, TRUST, ETC., CO. v. D. G. NIVEN. 1 
 
 1878. IN THE COURT OF ERRORS AND APPEALS OF DELAWARE. 
 5 Houston's (Delaware) Reports, 416-432, i Am. St. 150. 
 
 The ruling of the court below in the case and now assigned for 
 error in this court was that by the laws of this state no corporation 
 aggregate, whether incorporated by the legislature of this state or of 
 any other state, can be appointed an administrator in this state or can 
 sue as an administrator in the courts of this state. 
 
 WALES, J. * * * Secondly, it is objected that by the common 
 law the plaintiff is not capable of being an administrator. Blackstone, 
 among the disabilities of a corporation, includes its inability to be an 
 executor or administrator, "for it can not take an oath for the due execu- 
 tion of the office." i Bl. Com., 477. In Bacon's Ab., Tit. Executors 
 and Administrators, 2, the same doctrine is laid down on the same 
 ground, but under a semble, and with these additional reasons : First, 
 because corporations can not be feoffees in trust for the use of others ; 
 and, second, because they are a body framed for a special purpose. 
 When the reason of a rule ceases, so does the rule itself. The plaint- 
 iff is not required to take an oath. It has been incorporated or 
 "framed for the special purpose" of acting in the character and 
 
 1 Arguments omitted. Only part of opinion relating to capacity of corpora- 
 tion is given.
 
 315 POWER TO ACT IN A PERSONAL RELATION. 1089 
 
 capacity in which it has come into court; and it is now well and long 
 established that a corporation may be a trustee in the same manner as 
 an individual, not only of real estate, but of personal property, to the 
 same extent as private persons. Hill on Trustees, 48 (and cases cited 
 in the note). Says Toller: "It now seems settled that corporations 
 can be executors, and that on their being so named they may appoint 
 persons styled syndics to receive administration with the will an- 
 nexed, who are sworn like all other administrators. Such corpora- 
 tions as can take the oath of an executor are clearly competent," as, 
 for instance, a corporation sole. Toller on Exes., 30. There is, then, 
 no inherent disability or disqualification belonging to a corporation as 
 such which excludes it from acting as an administrator, and it may 
 accept the office if not prohibited by its charter, or forbidden by 
 statute, whenever from the objects of its incorporation and the nature 
 of its business it may become necessary and proper, and it is able to 
 comply with the conditions prescribed by law as to giving bond, etc. 
 
 Practically, the position of the plaintiff is meritorious and unob- 
 jectionable. With the express power contained in its charter to re- 
 ceive the appointment of administrator, and with its capital stock 
 pledged as the security required for the faithful performance of its 
 duties, it brings an action in its representative capacity for the recovl 
 ery of a debt due to its intestate, and is met at the outset by technica- 
 rules, which, whatever may have been the reason of their origin and 
 adoption, have either become obsolete or have been so modified and 
 relaxed as to be no longer of general application. The execution of 
 the bond would, at the best, amount to little more than a form, and 
 be without substantial benefit or necessity ; but still the defendant is 
 entitled to it, if it is insisted upon, and the plaintiff has a full and 
 lawful power to execute it as it would have to make or indorse a 
 promissory note, or accept a bill of exchange, or to execute any other 
 description of bond which may be fairly and legitimately considered 
 as necessary and proper in the usual course of its business. It has 
 not been made to appear in what manner the interests of this state or 
 of its citizens would be impaired, or in what way its policy would be 
 invaded or subverted, by sustaining the plaintiff's action. Admitting 
 that a corporation may be unable to act as an original administrator 
 under the provisions of the general statute, it does not follow that it 
 may not be recognized as a foreign administrator on the production of 
 letters duly authenticated and giving bond. The word "persons" 
 may extend to and include bodies corporate and politic as well as in- 
 dividuals. Amend. Code, ch. 5. If the plaintiff can give the bond, 
 it does all that the law requires. The rights of our citizens will not 
 be endangered, their property rendered less secure, or the dignity of 
 the state be diminished. If the policy of the state is to be inferred 
 from the history of its legislation, the act of the general assembly of 
 Delaware of April 9, 1873, incorporating a company for the special 
 purpose, among others, of acting as administrator would be conclusive 
 of that question. 14 Del. Laws, 714. * * * 
 
 Reversed. 
 
 69 WIL. CAS.
 
 KILLINGSWORTH V. PORTLAND TRUST CO. 316 
 
 See, to same effect, 1885, Camden S. D. & T. Co. v. Ingham, 40 N. J. Eq. 3; 
 
 1889, Minnesota Loan & Trust Co. v. Beebe et al., 40 Minn. 7, holding that a 
 law authorizing corporations to be guardians, was valid and they could so act; 
 
 1890, Coleman's Admr. v. Parrott, 17 Ky. L. Rep. 814, 37 A. & E C C 1. 
 See note, 32 A. & E. C. C., p. 2. 
 
 Sec. 316. 3. Power to act as agent, or attorney in fact. 
 
 W. M. KILLINGSWORTH, APPELLANT, v. THE PORTLAND TRUST CO., 
 OF OREGON, RESPONDENT. 1 
 
 1890. IN THE SUPREME COURT OF OREGON. 18 Oregon Reports 
 351-356, 17 Am. St. Rep. 737, 32 A. & E. C. C. 33. 
 
 LORD, J. This is an action to recover damages for failure of the 
 defendant to execute and deliver to the plaintiff a conveyance of cer- 
 tain premises, pursuant to an agreement to that effect. The defendant 
 denies this, and alleges as the attorney in fact of one Deborah H. In- 
 gersoll, in compliance with said agreement, that it did execute and 
 tender to the plaintiff a conveyance of said premises, etc., and now 
 brings it into court and deposits it for the plaintiff, and that plaintiff 
 refuses to accept the same. To this the plaintiff demurred on the 
 ground that the same does not state facts sufficient to constitute a 
 cause of defense to the cause of action alleged. The point raised by 
 the demurrer is: Can the defendant, a corporation, execute a deed of 
 conveyance of .real property as the attorney in fact of another ? * * * 
 
 It is provided by our statute that a corporation may engage in any 
 lawful enterprise, business pursuit or occupation (Code, section 3217), 
 so that, unless corporations are affected with some disability, when 
 the articles of incorporation are sufficient for the purpose, there is no 
 lawful occupation or business in which it may not engage in this state 
 exactly as individuals. By its articles of incorporation the defendant 
 corporation is expressly authorized and empowered "to act as the 
 general or special agent, or attorney in fact, for any public or private 
 corporation or person in the management and control of real estate or 
 other property, its purchase, sale or conveyance, etc." No question 
 is made but what the defendant, by its articles of incorporation, has 
 conferred upon it the power to do the act for which there is claimed 
 to be an alleged failure ; but the contention is that a corporation, from 
 the nature of the organization as an artificial body, necessitated to act 
 through agents, is incapable of executing a deed as an attorney in 
 fact. This argument is based on the assumption that there are some 
 things, from the inherent nature of the case, that a corporation is in- 
 capable of doing, and seeks its illustrations in the common law, as 
 that a corporation can not be an administrator or executor, because its 
 duties are of a personal nature and can not be delegated, or to take 
 an oath, when so required by law, before proceeding to execute some 
 
 1 Only so much of the opinion as relates to the single point is given.
 
 316 POWER TO ACT IN A PERSONAL RELATION. 
 
 duty or trust. But this argument overlooks the fact that a corporation 
 may be empowered to do by statute what it was incapable of doing 
 under its common law powers, and when thus created, its powers, 
 capacities and modes of exercising them depend upon the statute. 
 
 Having the power conferred upon it to act as an attorney in fact, 
 is it not endowed with all the faculties or capacities essential to exe- 
 cute it and carry out the business projects of its creation? Why may 
 not a corporation act as an agent for an individual or another corpo- 
 ration ? As the owner of real property, it can, by its authorized 
 agents, execute a conveyance, or it may authorize another, by power 
 of attorney in writing, to convey such property for it. Why, then, 
 may it not act as the agent or attorney in fact of another for a like 
 purpose, when it is so authorized, and to thus act is one of the chief 
 powers conferred to effect the object of its creation and to carry on 
 the business in which it is engaged? 
 
 "Within the scope of its corporate powers," says Mr. Mechem, 
 "unless there are express provisions in its charter, or constating in- 
 struments to the contrary, a corporation may act as agent, either for 
 an .individual, a partnership or another corporation. Many of the 
 great corporations of the country are organized for this express pur- 
 pose under statute or charters conferring and defining their powers 
 and the methods of executing them ; but even in other cases, the au- 
 thority so to act might be implied as auxiliary to their main purpose." 
 Mechem on Agency, 64. It is clear, then, that a corporation may 
 act as the agent of another, and if so, it must be endued with the 
 faculties or instrumentalities to perform the office it is authorized to 
 undertake, and carry out the purposes of its creation. 
 
 When a corporation engages in a legitimate business and is author- 
 ized by its incorporation to do the things necessary to carry on such 
 business, it is an express grant of power to enable it to effect that ob- 
 ject. If it is to be excluded from doing such things because, from 
 the nature of its organization, it can not act personally, but only 
 through agents, there would be little left in the domain of business it 
 could do. As was said by the court in Hopkins v. Gallaton Turn- 
 pike Co., 4 Humph. 412, "the common law rule with regard to 
 natural persons, that an agent, to bind his principal by deed, can not 
 in the nature of things be applied to corporations aggregate, these be- 
 ing of mere legal existence, and their board, as such, literally speak- 
 ing, are incapable of a personal act. They direct or assent by vote, 
 but their most immediate mode of action must be by agent." Being 
 a creation of the law an artificial person it can only act by agents 
 who are its limbs or instrumentalities to effect the purpose for which 
 it was organized and to act for it, their act being the act of the cor- 
 poration, exactly as the act of an individual is his act. As such, 
 upon the principle of the objection raised, it could not make an ac- 
 knowledgment in person, but it may by its officers, and in such cases, 
 its officer affixing the seal is the party executing the deed within the 
 meaning of the statute requiring deeds to be acknowledged by the 
 grantor. Kelly v. Calhoun, 95 U. S. 711; Frostberg M. B. Ass.
 
 1092 SILVER LAKE BANK V. NORTH. 
 
 v. Brace et al., 51 Md. 508; Am. & Eng. Enc., "Acknowledg- 
 ments," "Corporations." 
 
 In fact, within the same principle of reasoning, it may be said that 
 a corporation can not make a deed of its own property ; but we know 
 it can, and that the act of its officers in so doing is the act of the cor- 
 poration. When a corporation is made the agent of another to sell 
 and convey property, it acts through the same instrumentalities as 
 when acting for itself, and the relation between it* and its instrumentali- 
 ties is as one being, or artificial person, in the performance of its 
 engagement, and involves no delegation of powers. So that when a 
 corporation is invested with a power of attorney to sell and convey 
 real property, the person conferring the power knows that the corpo- 
 ration can not act personally in the matter, but that in performing the 
 engagement it will act through its agents, who for that purpose are its 
 faculties, and whose acts in the discharge of that duty are the acts of 
 the. corporation, and as such must be considered to be included in the 
 artificial person as instrumentalities authorized by him to do the act 
 conferred upon it by his power of attorney. In this view, the argu- 
 ment that the corporation can not do such act under the power of At- 
 torney without a 'delegation of authority to its agents, and that the 
 grantor of the power has given no such power of substitution, can not 
 be sustained. 
 
 There was no error, and the judgment must be affirmed. 
 
 Note. See, 1875, McWilliams v. Detroit Co., 31 Mich. 275; 1890, Jemison 
 v. Bank, 122 N. Y. 135; 1891, Van Dresser v. Ore. R. Co., 48 Fed. Rep. 202; 
 1896, Anderson v. Bank, 5 N. D. 451; 1897, Snow-Church Co. v. Hall, 19 
 Miscl. (N. Y.) 655. 
 
 Compare, 1885, Westinghouse, etc., Co. v. "Wilkinson, 79 Ala. 312. 
 
 ARTICLE VI. POWER TO SUE AND BE SUED. 
 
 Sec. 317, Right to sue, at common law, anywhere. 
 
 THE SILVER LAKE BANK (IN PENNSYLVANIA) v. G. NORTH. 1 
 
 1820. IN THE COURT OF CHANCERY OF NEW YORK. 4 Johns. 
 Ch. (N. Y.) Rep. 370-374. 
 
 [Bill to foreclose a mortgage, given upon land in New York, to 
 secure a claim of the bank against the defendant for money loaned.] 
 
 THE CHANCELLOR (Kent). There are several objections raised 
 by the answer, and by the counsel, at the hearing, to the right of the 
 plaintiffs to a foreclosure or sale of the mortgaged premises. 
 
 i. It is objected, that a foreign corporation can not be recognized 
 as such and entitled to sue in our courts. 
 
 It appears by the pleadings and proofs that the plaintiffs are a bank- 
 ing corporation, created by an act of the legislature of Pennsylvania, 
 and that they took the mortgage in question to secure a loan of money 
 
 1 Arguments and opinion on other points omitted.
 
 $ 3 l8 POWER TO SUE AND BE SUED. IO93 
 
 made at their banking house in that state. There is perfect justice 
 and equity in their demand, and I can not see that the objection is 
 even plausible. It is well settled that foreign corporations may sue 
 here in their corporate name, and may prove, as a matter of fact, if 
 the same were denied, that they were lawfully incorporated. The 
 Bank of the United States has sued in our courts, (i Johns. Cas. 
 132.) In Henriques v. Dutch West India Company (2 Ld. Raym. 
 1532, i Str. 612), a suit was brought by a Dutch corporation and 
 sustained, both in the K. B. and in the House of Lords, though it was 
 objected in that case that a foreign corporation could not maintain a 
 suit. This court ought to be as freely open to such suitors as a court 
 of law, and it would be most unreasonable and unjust to deny them 
 that privilege. They might well exclaim: 
 
 Quod genus hoc hominum? * * * 
 * * * hospitio prohibemur arena. 
 
 See, 1896, National Tel. Mfg. Co. v. Dubois, 165 Mass. 117, 52 Am. St. Rep.. 
 503, infra, p. 1490; 1899, Alliance Trust Co. v. Wilson, 9 Kan. App. 891, 50 
 Pac. Rep. 177; 1899, Ware Cattle Co. v. Anderson, 107 Iowa 231, 77 N. W. 
 Rep. 1026; 1900, Texas & P. R. Co. v. Davis, 93 Texas 378, 55 S. W. Rep. 562; 
 1900, Schmidt <fe Bro. v. Mahoney, 60 Neb. 20, 82 N. W. Rep. 99. 
 
 Sec. 318. Under statutes, conditions imposed do not generally 
 prevent suing. 
 
 GARRATT FORD CO. v. VERMONT MANUFACTURING CO. ET AL. 
 
 1897. IN THE SUPREME COURT OF RHODE ISLAND. 20 R. I. 
 Rep. 187-90, 7 Am. & Eng. Corp. Cas. (N. S.) 171-174. 
 
 Assumpsit for goods sold and delivered by a foreign corporation 
 which had not appointed an attorney in this state on whom process 
 against it might be served. Heard on defendant's petition for a new 
 trial. 
 
 STINESS, J. The plaintiff, a corporation located in Boston, Mass., 
 sold to the defendant a tank, through a salesman who took the order 
 in Providence, and it now seeks to recover the price in this suit. The 
 defendant asked the judge presiding at the trial to charge that the 
 plaintiff, being a foreign corporation, which had not complied with 
 the law of this state in appointing a resident of this state as its attor- 
 ney (Gen. Laws, cap. 253, 36 to 41), was not entitled to main- 
 tain this action. To the refusal of the judge so to charge, the de- 
 fendant asks for a new trial on the ground of erroneous ruling. 
 
 The question, whether a corporation of one state can do business in 
 another state without complying with the laws of such state j is one which 
 has frequently arisen, and upon which decisions are conflicting, al- 
 though many decisions turn upon the language of a statute. Thus it 
 is held that a statute prohibiting a foreign corporation from doing
 
 1094 FORD CO. V. VERMONT MFG. CO. 318 
 
 business in a state without complying with its terms makes such busi- 
 ness illegal and void, and that no such corporation can maintain an 
 action to enforce its illegal contracts. And where the statute does 
 not provide for the consequences of non-compliance, the argument is 
 that the acts of the corporation must be void, or else the statute would 
 be nugatory. In Massachusetts a penalty is imposed upon the agent 
 doing business, but the statute (Laws of 1884, cap. 330, 3) says 
 that a failure to comply with the conditions shall not affect the validity 
 of an act of the corporation. Rogers v. Simmons, 155 Mass. 259. 
 Some statutes declare the acts to be void. In such cases there can be 
 no question of validity. Some cases hold that where the statute im- 
 poses a penalty upon the agent but is silent as to the validity of the 
 act, it is to be presumed that the legislature intended the penalty as a 
 sufficient safeguard for compliance, and that to declare the acts of the 
 corporation void would go further than the statute and impose an ad- 
 ditional penalty, by construction, which should not be done. A 
 notable case of this 4dnd is Fritts v. Palmer, 132 U. S. 282, in which 
 the court says: "The fair implication is that, in the judgment of the 
 legislature of Colorado, this penalty was ample to effect the object of 
 the statutes prescribing the terms upon which foreign corporations 
 might do business in that state. It is not for the judiciary, at the in- 
 stance or for the benefit of private parties claiming under deeds ex- 
 ecuted by the person who had previously conveyed to the corporation, 
 according to the forms prescribed for passing title to real estate, to 
 inflict the additional and harsh penalty of forfeiting, for the benefit of 
 such parties, the estate thus conveyed to the corporation and by it 
 conveyed to others. * * * If the legislature had intended to de- 
 clare that no title should pass under conveyance to a foreign corporation 
 purchasing real estate before it acquires the right to engage in business 
 in the state, and that such a conveyance should be an absolute nullity 
 as between the grantor and grantee, leaving the grantor to deal with 
 the property as if he had never sold it, that intention would have been 
 clearly manifested." To the same effect are Dearborn F. Co. v. Au- 
 gustine, 31 Pac. Rep. (Wash.) 327; Edison, etc., Co. v. Canadian 
 Co., 8 Wash. 370, 24 L. R. A. 315, with a note which holds the 
 contrary view. See, also, an instructive article by Mr. Gunn in Am. 
 Law Reg., January, 1897, p. 19. Without multiplying authorities, 
 we think that the reasoning which we have quoted is conclusive, 
 although we concede that the greater number of authorities are prob- 
 ably the other way. We think, moreover, that we find support for 
 this view in similar legislation in this state. 
 
 In Gen. Laws R. I., cap. 182, 17, it is declared, in the case of a 
 foreign insurance company, that the contract shall be valid, and the 
 same declaration is made as to resident insurance companies which 
 fail to comply with the law. The argument is pressed that because 
 this declaration of validity is made in these cases, its omission in the 
 statute before us leads to the inference of the invalidity of other con- 
 tracts. We do not think that the legislature intended to make one 
 class of contracts valid and other contracts, under similar conditions, 
 invalid. If the legislature intends to make such contracts as the one
 
 319 POWER TO SUE AND BE SUED. IO95 
 
 in suit invalid, it is easy to say so ; but, in the absence of such a pro- 
 vision, it is a wide stretch of judicial construction for the court to hold 
 that such a result was intended. The purpose of the statute is not to 
 invalidate contracts, but to require foreign corporations to appoint an 
 attorney in this state upon whom service of process may be made. 
 This purpose seems to be adequately served by imposing a penalty 
 upon the agent who ventures to do business for the company without 
 complying with the law. While we do not question the right of the 
 state to impose such conditions and penalties upon foreign companies 
 doing business here as it may deem proper, subject to the provisions 
 of the federal constitution as to the regulation of commerce among 
 the states, yet, in view of the vast amount of business now done by 
 such corporations, we think it is a conservative position to hold that 
 the legislature did not intend to exempt our citizens from paying just 
 debts, upon grounds of non-compliance with our statutes, which may 
 have been fully known to the debtors, when the general assembly has 
 not clearly expressed that intention, and the inference of it is not 
 necessary to the object of the statute. 
 
 We are referred to Electric News Co. v. Perry, 75 Fed. Rep. 898, 
 in which it is claimed that our statute was construed to preclude a 
 foreign corporation, which had pot complied with it, from maintain- 
 ing a suit. That case, however, was a bill in equity for an injunc- 
 tion to restrain police officers of Pawtucket, who had seized the prop- 
 erty of the complainant for a violation of our statute against pool 
 selling, from interfering with their business. Judge Colt, in the 
 opinion, very properly said that a foreign corporation, which has not 
 complied with statutory provisions, "can not invoke the aid of this 
 court to prohibit the defendants from interfering with a business 
 which it has no legal right to carry on." That is a very different 
 thing from holding that a contract is void, which, in its nature, is not 
 contrary to public policy. 
 
 Our decision is that the court did not err in refusing the instruction 
 asked for, and that the petition for a new trial must be dismissed. 
 
 See, 1899, Alliance Trust Co. v. Wilson (Kan. App.),59Pac. Rep. 177; 1899, 
 Morse v. Holland Trust Co., 84 111. App. 84, 56 N. E. Rep. 369 ; 1899, National 
 Cash Register v. Wilson, 9 N. D. 112, 81 N. W. Rep. 285. 
 
 Sec. 319. But statutes may exclude from suing, except as to in- 
 terstate or foreign commerce. 
 
 TABER v. INTERSTATE BUILDING AND LOAN ASSOCIATION. 1 
 
 1897. IN THE SUPREME COURT OF TEXAS. 91 Texas Rep. 92-95, 
 7 Am. & Eng. Corp. Cas. (N. S.) 168. 
 
 [Action brought by the loan association, a Georgia corporation, to 
 foreclose a mortgage upon a lot in Austin, Texas, given by Kate 
 1 Statement abridged. Arguments omitted.
 
 1096 TABER V. BUILDING AND LOAN ASSOCIATION. 319 
 
 Taber to secure a loan from the company to her. The petition al- 
 leged that it had a branch office in Texas, and had a permit, under 
 the Texas law, to do business in the state. This was met by a gen- 
 eral denial ; the question was raised as to whether, under these 
 circumstances, the corporation must prove it had such a permit. 
 Judgment was rendered for the corporation, but this question was 
 certified for answer by the supreme court.] 
 
 BROWN, Associate Justice. * * * To the question propounded 
 we answer that it was necessary for the corporation (plaintiff below) 
 to prove that it had a permit to do business in Texas at the time that 
 the contract sued upon was made in order that the court might enter 
 judgment in its favor. Article 745, Rev. Civ. St. 1895, provides, in 
 substance, that every corporation for pecuniary profit organized or 
 created under the laws of another state which desires to transact busi- 
 ness in this state, or to solicit business in this state, or which desires 
 to establish a general or special office in this state, shall be required 
 to file with the secretary of state a duly-certified copy of its articles 
 of incorporation. Article 746, Rev. Civ. St. 1895, reads as follows: 
 "No such corporation can maintain any suit or action, either legal or 
 equitable, in any of the courts of this state upon any demand, whether 
 arising out of contract or tort, unless at the time such contract was 
 made or tort committed the corporation had filed its articles of incor- 
 poration under the provisions of this chapter in the office of the secre- 
 tary of state for the purpose of procuring its permit." Every state 
 has the right to prescribe the terms upon which any corporation cre- 
 ated in another state or foreign country may do business within its 
 limits, and may exclude such corporations entirely, with the exception 
 of corporations engaged in interstate commerce, or such as are em- 
 ployed by the United States in the transaction of its business. Under 
 this rule of law, about which there is no controversy, this state had 
 the right to adopt such measures as it thought fit to enforce the pro- 
 visions of its law, which required foreign corporations to deposit the 
 articles of their incorporation with the secretary of state ; and, the 
 legislature having seen fit to prescribe as a condition to the main- 
 tenance of suits in its courts that such compliance should precede the 
 transaction of business in the state, it follows that the filing of its articles 
 of incorporation with the secretary of state is a condition precedent to 
 the maintenance of suit upon any contract or right of action accruing 
 to such foreign corporation ; and, it being a condition precedent, the 
 fact must be both alleged and proved to entitle the corporation to 
 judgment in such case. Cumberland Land Co. v. Canter Lumber 
 Co. (Tenn. Ch. App.), 35 S. W. Rep. 886; Mullens v. Mortgage 
 Co., 88 Ala. 280, 7 So. Rep. 201 ; Thorne v. Insurance Co., 80 Pa. 
 St. 15; Paul v. Virginia, 8 Wall. 168; Holloway v. Railway Co., 
 23 Texas 465. * * * 
 
 Note. See, 1899, Texas Pac. Ry. Co. v. Davis, 55 S. W. Rep. 562; 1900, 
 Thompson Company v. Whitened", 185 III. 454, 76 Am. St. Rep. 51; 1901, 
 Helman Brewing Co. v. Remeise, Minn. , 88 N. W. 441.
 
 $ 32O POWER TO SUE AND BE SUED. 1O97 
 
 Sec. 820. But such statutes can not exclude from suing in the 
 United States courts. 
 
 MR. JUSTICE HUNT IN INSURANCE COMPANY v. MORSE. 1 
 
 1874. IN THE SUPREME COURT OF THE UNITED STATES. 87 U. S. 
 (20 Wall.) 445, on 454-5-6. 
 
 [The Wisconsin statutes of 1870 provided that it shall not be law- 
 ful for any fire insurance company, incorporated in any other state, 
 directly or indirectly to take risks or transact any business in this state, 
 without first appointing an attorney upon whom process may be 
 served, and containing an agreement that such company will not re- 
 move the suit for trial into the United States courts. The Home 
 Insurance Company, a New York corporation, began business in Wis- 
 consin, and appointed such an agent, the power of attorney containing 
 a provision not to remove suits to the United States courts. It insured 
 Morse, and a loss occurred, for which he sued in the state court, and 
 the company petitioned for removal. This was denied, error assigned 
 and taken to the supreme court of Wisconsin ; this court affirmed the 
 decision, and the company brought the case here. After quoting the 
 provision of the constitution of the United States as to the jurisdiction 
 of the United States courts, and saying that jurisdiction depends on 
 the laws of the United States, that the states can not limit it, and that 
 for purposes of such jurisdiction corporations are citizens of the state 
 creating them, proceeds:] 
 
 The Home Insurance Company is a citizen of New York, within 
 this provision of the constitution. As such citizen of another state, 
 it sought to exercise this right to remove to a federal tribunal a suit 
 commenced against itself in the state court of Wisconsin, where the 
 amount involved exceeded the sum of $500. This right was denied 
 to it by the state court on the ground that it had made the agreement 
 referred to, an-d that the statute of the state authorized and required 
 the making of the agreement. 
 
 We are not able to distinguish this agreement and this requisition, 
 in principle, from a similar one made in the case of an individual 
 citizen of New York. A corporation has the same right to the pro- 
 tection of the laws as a natural citizen, and the same right to appeal 
 to all the courts of the country. The rights of an individual are not 
 superior in this respect to that of a corporation. 
 
 The state of Wisconsin can regulate its own corporations and the 
 affairs of its own citizens, in subordination, however, to the constitu- 
 tion of the United States. The requirement of an agreement like 
 this from their own corporations would be brutntn fulmen, because 
 they possess no such right under the constitution of the United States. 
 A foreign citizen, whether natural or corporate, in this respect pos- 
 
 1 Much of opinion containing citations from cases as to the general power 
 of a state to exclude foreign corporations is omitted.
 
 i 
 1098 KNIGHTS OF PYTHIAS V. HILL. 321 
 
 sesses a right not pertaining to one of her own citizens. There must 
 necessarily be a difference between the status of the two in this re- 
 spect. 
 
 We do not consider the question whether the state of Wisconsin 
 can entirely exclude such corporations from its limits, nor what rea- 
 sonable terms they may impose as a condition of their transacting 
 business within the state. These questions have been before the 
 court in other cases, but they do not arise here. * * * 
 
 (Citing and quoting Paul v. Virginia, 8 Wall. 168; Bank of Au- 
 gusta v. Earle, 13 Pet. 519; Lafayette Ins. Co. v. French, 18 How. 
 407; Ducat v. City of Chicago, 10 Wall. 410; Bank of Columbia v. 
 Okely, 4 Wheat. 235.) 
 
 On this branch of the case the conclusion is this : 
 
 1. The constitution of the United States secures to citizens of an- 
 other state than that in which suit is brought an absolute right to re- 
 move their cases into the federal court, upon compliance with the 
 terms of the act of 1789. 
 
 2. The statute of Wisconsin is an obstruction to this right, is repug- 
 nant to the constitution of the United States and the laws in pursuance 
 thereof, and is illegal and void. 
 
 3. The agreement of the insurance company derives no support 
 from an unconstitutional statute and is void, as it would be had no 
 such statute been passed. 
 
 We are of opinion, for the reasons given, that the Winnebago 
 County Court erred in proceeding in the case after the filing the peti- 
 tion and the giving the security required by the act of 1789, and that 
 all subsequent proceedings in the state court are illegal and should be 
 vacated. The judgment in that court, and the judgment in the su- 
 preme court of Wisconsin, should be reversed, and the prayer of the 
 petition for removal should be granted. 
 
 Mr. CHIEF JUSTICE WAITE and Mr. JUSTICE DAVIS dissenting. 
 
 Note. See, 1857, Shelby v. Hoffman, 7 Ohio St. 450; 1872, Morse v. Home 
 Ins. Co., 30 Wis. 496, 11 Am. Rep. 580; 1875, Hartford Fire Ins. Co. v. Doyle, 6 
 Biss. 461 ; 1876, State, exrel. Drake, v. Doyle, 40 Wis. 175, 22 Am. Rep. 692 ; 1876, 
 Doyle v. Insurance Co., 94 U. S. 535, infra; 1887, Barren v. Burnside, 121 U. 
 S. 186; 1889, Rece v. N. N. & M. V. Co., 32 W. Va. 164, 3 L. R. A. 572; 1890, 
 Texas v. Worsham, 76 Texas 556 ; 1892, Southern Pac. Ry. Co. v. Denton, 146 
 U. S. 202; 1894, Martin v. Bait. & Ohio R. Co., 151 U" S. 673, 684; 1895, 
 Commw. v. East Tenn. C, Co., 97 Ky. 238. 
 
 Sec. 321. Federal corporations can sue in the federal courts. 
 
 SUPREME LODGE OF KNIGHTS OF PYTHIAS OF THE WORLD v. 
 
 HILL. 1 
 
 1896. IN THE UNITED STATES CIRCUIT COURT OF APPEALS. (W. 
 Va.) 76 Fed. Rep. 468-472. 
 
 [Action on the case in assumpsit, brought in courts of West Vir- 
 ginia by Ellen Hill, against the lodge, to enforce the payment of a 
 
 1 Statement abridged; only the part of the opinion relating to the one point 
 is given.
 
 3 22 POWER TO SUE AND BE SUED. 1 099 
 
 policy of insurance on the life of Arthur Hill, in favor of the plaintiff. 
 By petition of the lodge, a corporation created under the laws of the 
 United States, the suit was removed to the United States Circuit Court, 
 district of West Virginia. From a judgment in favor of Ellen Hill the 
 .lodge appealed.] 
 
 GOFF, Circuit Judge. * * * The first error assigned is to the action 
 of the court in overruling the demurrer to the plaintiff's declaration. 
 The grounds of the demurrer were that the circuit court of the United 
 States had no jurisdiction of this case, that it did not properly present 
 a federal question, and that "the same was shown by the declaration 
 itself, and also that there was no cause of action set forth in either 
 count thereof. It should be remembered, in this connection, that this 
 cause was removed from the state court on the petition of the defend- 
 ant, in which it was alleged that said defendant was a corporation 
 duly formed, organized and created by and under the laws of the 
 United States, and also that the declaration as filed in the state court 
 reciteS that the defendant was duly incorporated under an act of con- 
 gress. This assignment of error is without merit, as it is plain that 
 the demurrer was properly overruled by the court below. The su- 
 preme court of the United States has decided that corporations of 
 the United States, created by and organized under acts of congress, 
 are entitled to remove into the circuit court of the United States suits 
 brought against them in the state courts, on the ground that such suits 
 are suits "arising under the laws of the United States." Pacific Rail- 
 road Removal Cases, 115 U. S. i, 5 Sup. Ct. Rep. 1113; Butler v. 
 National Home, 144 U. S. 64, 12 Sup. Ct. Rep. 581. That court 
 also entertained and decided a writ of error in the case of Knights of 
 Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. Rep. 1047, which 
 had been removed from a state court, in the eastern district of Lou- 
 isiana, to the circuit court of the United States for that district, upon 
 the petition of the said Knights of Pythias, in which it was alleged 
 that it was a corporation created by and organized under an act of 
 congress. * * * 
 
 Affirmed. 
 
 Note. See, 1899, Supreme Lodge K*. of P. v. England, 94 Fed. Rep. 369. 
 
 Sec. 322. Liability to be sued. 
 
 In the United States courts, citizenship. 
 
 ST. LOUIS AND SAN FRANCISCO RAILWAY CO. v. JAMES. 1 
 
 1896. IN THE SUPREME COURT OF THE UNITED STATES. 161 U. S. 
 
 Rep. 54S-57 2 - 
 
 [In 1892 Etta James brought this action in the United States Cir- 
 cuit Court, western district of Arkansas, against the railway company, 
 
 'Statement much abridged; arguments, part of opinion and dissenting 
 opinion of Mr. Justice Harlan omitted.
 
 IIOO ST. LOUIS AND SAN FRANCISCO RY. CO. V. JAMES. 322 
 
 or negligence in maintaining a switch target so near its tracks, in the 
 state of Missouri, that her husband, a fireman on the company's en- 
 gine, was killed. Mrs. James resided in Monett, Mo., where the 
 accident took place. The railway company was incorporated in Mis- 
 souri in 1876, and soon thereafter became the owner of a road ex- 
 tending southerly from Monett, to the state line, and on to Fort 
 Smith in Arkansas ; the latter part of this line had been purchased in 
 1882 by the St. L. & S. F. Co. ; in 1889 Arkansas changed her 
 former law relating to foreign railway companies owning or opei'ating 
 railways in that state by enacting that such company before having 
 the benefit of such act shall within sixty days file with the secretary 
 of state a certified copy of its articles of incoiporation or charter, 
 "and shall thereupon become a corporation of this state, anything in 
 its articles of incorporation or charter to the contraiy notwithstanding, 
 and in all suits and proceedings instituted against such corporation 
 process may be served" as in case of "corporations in this state or- 
 ganized and existing under the laws of this state." The railway 
 company filed its copy of its articles of incorporation as required by 
 the act of 1889, but was never otherwise incorporated in Arkansas. 
 The railway company duly objected to the jurisdiction of the court, 
 on the ground that the plaintiff and defendant were both citizens of 
 Missouri, and that the requisite diversity of citizenship did not exist 
 so as to give jurisdiction to the United States courts ; the question was 
 so raised, by exceptions to the ruling of the trial court, and assign- 
 ments of error, as to be presented to the circuit court of appeals, by 
 which four questions were certified to this court: i. Under the act of 
 1889, by filing its articles of incorporation, and continuing to operate 
 its road, did the railway company "become a corporation and citizen 
 of Arkansas?" 2. Did it thus become a citizen of Arkansas so as to 
 give to the United States Circuit Court, western district of Arkansas, ju- 
 risdiction of this action, in which complainant was a citizen of Missouri ? 
 3. Did it so become a citizen of Arkansas as to give such court juris- 
 diction of such action, when complainant was a citizen of Missouri, 
 and when the cause of action accrued there ? 4. Under all the cir- 
 cumstances, did the said court have jurisdiction of the action ?] 
 
 MR. JUSTICE SHIRAS. Etta James, as a citizen of the state of Mis- 
 souri, and having a cause of action against the St. Louis and San 
 Francisco Railw r ay Company, a corporation of the state of Missouri, 
 could, of course, sue the latter in the courts of that state, but equally, 
 of course, could not sue such state corporation in the circuit court of 
 the United States for the district of Missouri. Can she, as such citizen 
 of the state of Missouri, lawfully assert her cause of action in the cir- 
 cuit court of the United States for the district of Arkansas against the 
 St. Louis and San Francisco Railway Company by showing that the 
 latter had availed itself of the rights and privileges conferred by the 
 state of Arkansas on railroad corporations of other states coming 
 within her borders and complying with the terms and conditions of 
 her statutes? 
 
 Before addressing ourselves directly to this question, it must be con-
 
 3 2 2 POWER TO SUE AND BE SUED. IIOI 
 
 ceded that the plaintiff's cause of action, though arising in Missouri, 
 is transitory in its nature, and that the St. Louis and San Francisco 
 Railway Company, though denying the plaintiff's right to sue it in 
 the circuit court of Arkansas, waives its statutory privilege of being 
 sued only in the district in which it has its habitat. 
 
 It must be regarded, to begin with, as finally settled, by repeated 
 decisions of this court, that, for the purpose of jurisdiction in the fed- 
 eral courts, a state corporation is deemed to be indisputably composed' 
 of citizens of such state. It is equally true that, without objection so 
 far from the federal authority, whether legislative or judicial, it has 
 become customary for a state, adjacent to the state creating a railroad 
 corporation, to legislatively grant authority to such foreign corpora- 
 tion to enter its territory with its road to make running arrangements 
 with its own railroads to buy or lease them, or to consolidate with 
 the companies owning them. Sometimes, as in the present case, such 
 foreign corporation is declared, upon its acceptance of prescribed 
 terms and conditions, to become a domestic corporation of such ad- 
 jacent state, and to be endowed with all the rights and privileges en- 
 joyed by similar corporations created by such state. 
 
 We have already said that the rule that state corporations are in- 
 disputably composed of citizens of the states creating them is finally 
 settled. But, in view of the question now before us, it may be well 
 to briefly review some of the cases. 
 
 In the case of Bank of the United States v. Deveaux, 5 Cranch 61, 
 87, 88, where an action had been brought against citizens of the state 
 of Georgia in the circuit court of the United States for the district of 
 Georgia, by a petition of "the president, directors and company of 
 the Bank of the United States," wherein it was alleged that the peti- 
 tioners were citizens of the state of Pennsylvania, it was held that a 
 corporation aggregate, composed of citizens of one state, may sue a 
 citizen of another state in the circuit court of the United States, and 
 Chief Justice Marshall, in giving the opinion of the court, said: "Sub- 
 stantially and essentially, the parties in such a case, where the mem- 
 bers of the corporation are aliens or citizens of a different state from 
 the opposite party, come within the spirit and terms of the jurisdiction 
 conferred by the constitution on the national tribunals." 
 
 Before leaving this case it should be noted that the United States 
 Bank was not a corporation of the state of Pennsylvania, but of the 
 United States. The decision, therefore, was to the effect that where 
 it appeared that a corporation plaintiff, regardless of its origin, was 
 composed of aliens or of citizens of a different state from the defend- 
 ant, the plaintiff, through suing in its corporate name, could make the 
 averment that the individuals who composed the corporation were 
 such aliens or citizens of a different state, and such averment, if not 
 traversed, would sustain the jurisdiction. The principle of the case 
 makes the individual corporators the real parties to the suit. 
 
 In Louisville, Cincinnati, etc., Railroad v. Letson, 2 How. 497, 
 555, an action was brought, in the circuit court of the United States 
 for the district of South Carolina, by a citizen of the state of New
 
 IIO2 ST. LOUIS AND SAN FRANCISCO RY. CO. V. JAMES. 322 
 
 York against a corporation whose members were alleged to be citi- 
 zens of South Carolina. A plea to the jurisdiction was set up that 
 there were members of the defendant company who were not citizens 
 of the state of South Carolina, but of another state than New York 
 or South Carolina. In the opinion in this case, Bank of the United 
 States v. Deveaux was said to have gone too far, and that consequences 
 and inferences had been argumentatively drawn from it which ought 
 "not to be followed, and it was said that "a corporation created by a 
 state to perform its functions under the authority of that state and 
 only suable there, though it may have members out of the state, seems 
 to us to be a person, though an artificial one, inhabiting and belong- 
 ing to that state, and, therefore, entitled, for the purpose of suing and 
 being sued, to be deemed a citizen of that state," and accordingly the 
 judgment of the circuit court, overruling the plea to its jurisdiction, 
 was sustained. * * * 
 
 (Citing, and quoting from, as following the Letson case, Marshall 
 v. B. & O. R. R., 16 How. 314, 329; Covington .Drawbridge Co. v. 
 Shepherd, 20 How. 227, 233.) 
 
 The previous cases were reviewed in Ohio and Mississippi Railroad 
 v. Wheeler, i Black 286, 297. That was the case of an action 
 brought in the circuit court of the United States for the district of In- 
 diana against Wheeler, a citizen of that state, to recover the amount 
 due on his subscription to stock of the Ohio and Mississippi Railroad 
 Company. The declaration described the plaintiffs as the "president 
 and directors of the Ohio and Mississippi Railroad Company, a cor- 
 poration created by the laws of the states of Indiana and Ohio, and 
 having its principal place of business in Cincinnati, in the state of 
 Ohio, a citizen of the state of Ohio." The defendant pleaded to the 
 jurisdiction by alleging that the plaintiff company, although a corpo- 
 ration of the state of Ohio in the first instance, had been incorporated 
 by an act of assembly of the state of Indiana, and thus had become 
 a body corporate of the same state whereof he was a citizen. 
 
 The question thus raised was on a certificate of a division of opinion 
 between the judges of the circuit court, brought to this court, and was 
 answered as follows: "This suit in the corporate name is, in con- 
 templation of law, the suit of the individual persons who compose it, 
 and must, therefore, be regarded and treated as a suit in which citi- 
 zens of Ohio and Indiana are joined as plaintiffs in an action against 
 a citizen of the last mentioned state. Such an action can not be main- 
 tained in a court of the United States, where jurisdiction of the case 
 depends altogether on the citizenship of the parties. And, in such a 
 suit, it can make no difference whether the plaintiffs sue in their own 
 proper names or by the corporate name and style by which they are 
 described. The averments in the declaration would seem to imply 
 that the plaintiffs claim to have been created a corporate body, and to 
 have been endued with the capacities and faculties it possesses by the 
 co-operating legislation of the two states, and to be one and the same 
 legal being in both states. If this were the case it would not affect 
 the question of jurisdiction in this suit. But such a corporation can
 
 322 POWER TO SUE AND BE SUED. IIO3 
 
 have no legal existence upon the principles of the common law or 
 under the decision of this court in the case of the Bank of Augusta v. 
 Earle. 1 It is true that a corporation by the name and style of the 
 plaintiffs appears to have been chartered by the states of Indiana and 
 Ohio, clothed with the same capacities and powers, and intended to 
 accomplish the same objects, and it is spoken of in the laws of those 
 states as one coiporate body, exercising the same powers and fulfilling 
 the same duties in both states. Yet it has no legal existence in either 
 state, except by the law of the state. And neither state could confer 
 on it a corporate existence in the other, nor add to or diminish the 
 powers to be there exercised. It may, indeed, be composed of and 
 represent, under the corporate name, the same natural persons. But 
 the legal entity or person, which exists by force of law, can have no 
 existence beyond the limits of the state or sovereignty which brings it 
 into life and endues it with its faculties and powers. The president 
 and directors of the Ohio and Mississippi Railroad Company are, 
 therefore, a distinct and separate corporate body in Indiana from the 
 corporate body of the same name in Ohio, and they can not be joined 
 in a suit as one and the same plaintiff, nor maintain a suit in that 
 character against a citizen of Ohio or Indiana in a circuit court of the 
 United States. * * * And we shall certify to the circuit court 
 that it has no jurisdiction of the case on the facts presented by the 
 pleadings." * * * 
 
 (Citing and quoting from Memphis & Charleston R. R. v. Ala- 
 bama, 107 U. S. 581, 585, and Railway Company v. Whitton, 13 
 Wall. 270.) 
 
 One phase of the subject was before the court in the case of the 
 Pennsylvania Co. v. St. Louis, etc., Railroad, 118 U. S. 290, 295. 
 A suit had been brought in the circuit court of the United States for 
 the district of Indiana by the St. Louis, Alton and Terre Haute Rail- 
 road Company, alleging that it was a corporation organized under the 
 laws of the state of Illinois, and a citizen of that state, against the In- 
 dianapolis and St. Louis Company, a corporation organized under 
 the laws of the state of Indiana, and a citizen of that state, and against 
 other corporations mentioned in the bill as citizens of Indiana, or of 
 other states than Illinois. An objection to the jurisdiction was made 
 on the ground that the St. Louis, Alton and Terre Haute Railroad 
 Company was organized under laws of both Illinois and Indiana, 
 and was, therefore, a citizen of the latter state. In treating this ques- 
 tion this court said, by Mr. Justice Miller: "It does not seem to ad- 
 mit of question that a corporation of one state, owning property and 
 business in another state by permission of the latter, does not be- 
 come a citizen of this state also. And so a corporation of Illinois, 
 authorized by its laws to build a railroad across the state from the 
 Mississippi River to its eastern boundary, may by permission of the 
 state of Indiana extend its road a few miles within the limits of the 
 latter, or, indeed, through the entire state, * * * without thereby 
 becoming a corporation or a citizen of the state of Indiana. Nor 
 does it seem to us that an act of the legislature conferring upon this 
 
 1 13 Pet. 519.
 
 EIO4 ST. LOUIS AND SAN FRANCISCO RY. CO. V. JAMES. 322 
 
 corporation of Illinois, by its Illinois corporate name, such powers to 
 enable it to use and control that part of the road within the state of 
 Indiana as have been conferred on it by the state which created it, 
 constitutes it a corporation of the state of Indiana. It may not be 
 easy in all such cases to distinguish between the purpose to create a 
 new corporation which shall owe its existence to the law or statute 
 under consideration, and the intent to enable the corporation already 
 in existence under laws of another state to exercise its functions in the 
 state where it is so received. The latter class of laws are common in 
 authorizing insurance companies, banking companies and others to do 
 business in other states than those which have chartered them. To 
 make such a company a corporation of another state, the language 
 must imply creation or adoption in such form as to confer the power 
 usually exercised over corporations by the state, or by the legislature, 
 and such allegiance as a state corporation owes to its creator. The 
 mere grant of privileges or pow r ers to it as an existing corporation, 
 without more, does not do this, and does not make it a citizen of the 
 state conferring such powers." 
 
 So in Nashua Railroad v. Lowell Railroad, 136 U. S. 356, it was 
 held that railroad corporations, created by two or more states, though 
 joined in their interests, in the operation of their roads, in the issue 
 of their stock and in the division of their profits, so as practically to 
 be a single corporation, do not lose their identity; but each has its 
 existence and its standing in the courts of the country only by virtue 
 of the legislation of the state by w r hich it was created, and the union 
 of name, of officers, of business and property, does not change their 
 distinctive character as separate corporations. 
 
 To fully reconcile all the expressions used in these cases would be 
 no easy task, but we think the following propositions may be fairly 
 deduced from them: There is an indisputable legal presumption that 
 a state corporation, when sued or suing in a circuit court of the United 
 States, is composed of citizens of the state which created it, and hence 
 such a corporation is itself deemed to come within that provision of 
 the constitution of the United States which confei's jurisdiction upon 
 the federal courts in "controversies between citizens of different 
 states." 
 
 It is competent for a railroad corporation organized under the laws 
 of one state, when authorized so to do by the consent of the state 
 which created it, to accept authority from another state to extend its 
 railroad into such state, and to receive a grant of powers to own and 
 control, by lease or purchase, railroads therein, and to subject itself 
 to such rules and regulations as may be prescribed by the second state. 
 Such legislation on the part of two or more states is not, in the ab- 
 sence of inhibitory legislation by congress, regarded as within the 
 constitutional prohibition of agreements or compacts between states. 
 
 Such corporations may be treated by each of the states whose legis- 
 lative grants they accept as domestic corporations. 
 
 The presumption that a corporation is composed of citizens of the 
 state which created it accompanies such corporation when it does busi-
 
 3 2 2 POWER TO SUE AND BE SUED. I IO5 
 
 ness in another state, and it may sue or be sued in the federal courts 
 in such other state as a citizen of the state of its original creation. 
 
 We are now asked to extend the doctrine of indisputable citizen- 
 ship, so that if a corporation of one state, indisputably taken, for the 
 purpose of federal jurisdiction, to be composed of citizens of such 
 state, is authorized by the law of another state to do business therein, 
 and to be endowed, for local purposes, with all the powers and privi- 
 leges of a domestic corporation, such adopted corporation shall be 
 deemed to be composed of citizens of the second state in such a sense 
 as to confer jurisdiction on the federal courts at the suit of a citizen of 
 the state of its original creation. 
 
 We are unwilling to sanction such an extension of a doctrine which, 
 as heretofore established, went to the very verge of judicial power. 
 That doctrine began, as we have seen, in the assumption that state 
 corporations were composed of citizens of the state which created 
 them ; but such assumption was one of fact, and was the subject of 
 allegation and traverse, and thus the jurisdiction of the federal courts 
 might be defeated. Then, after a long contest in this court, it was 
 settled that the presumption of citizenship is one of law, not to be 
 defeated by allegation or evidence to the contrary. There we are 
 content to leave it. * * * 
 
 (After reviewing the former Arkansas legislation relative to foreign 
 corporations acquiring and operating railroads in the state, under 
 which the road in question was acquired, and showing such former 
 legislation did not attempt to make the foreign corporation an Ar- 
 kansas corporation.) 
 
 It is true that by the subsequent act of 1889, by the proviso to the sec- 
 ond section, it was provided that every railroad corporation of any 
 other state, which had theretofore leased or purchased any railroad in 
 Arkansas, should, within sixty days of the passage of the act, file a 
 certified copy of its articles of incorporation or charter with the secre- 
 tary of state, and shall thereupon become a corporation of Arkansas, 
 anything in its articles of incorporation or charter to the contrary not- 
 withstanding; and it appears that the defendant company did accord- 
 ingly file a copy of its articles of incorporation with the secretary of 
 the state. But whatever may be the effect of such legislation, in the 
 way of subjecting foreign railroad companies to control and regula- 
 tion by the local laws of Arkansas, we can not concede that it availed 
 to create an Arkansas corporation out of a foreign corporation in such 
 a sense as to make it a citizen of Ai'kansas within the meaning of the 
 federal constitution so as to subject it as such to a suit by a citizen of 
 the state of its origin. In order to bring such an artificial body as a 
 corporation within the spirit and letter of that constitution, as con- 
 strued by the decisions of this court, it would be necessary to create 
 it out of natural persons, whose citizenship of the state creating it 
 could be imputed to the corporation itself. But it is not pretended in 
 the present case that natural persons, resident in and citizens of Ar- 
 kansas, were by the legislation in question created a corporation, and 
 
 70 WIL. CASKS
 
 I 106 SHAW V. QUINCY MIN. CO. 323 
 
 that, therefore, the citizenship of the individual corporators is im- 
 putable to the corporation. * * * 
 
 The reszilt of these views is that ive answer the second question put 
 to us by the circuit court of appeals in the negative^ and this renders 
 it unnecessary to answer the other questions. 
 
 Mr. Justice HARLAN dissents. 
 
 Note. See note at end of next case. 
 
 Sec. 323; Same. In what district. 
 
 SHAW v. QUINCY MIN. CO. 1 
 
 1892. IN THE SUPREME COURT OF THE UNITED STATES. 145 U. S. 
 444, 12 Sup. Ct. Rep. 935. 
 
 [This was a petition for a writ of mandamus to the judges of the 
 circuit court of the United States for the southern district of New York 
 to command them to take jurisdiction against the Quincy Mining 
 Company upon a bill in equity filed in that court on September 3, 
 1891, by the petitioner, described in the bill as a citizen of Massa- 
 chusetts, in behalf of himself and other stockholders of the Quincy 
 Mining Company, against "the Quincy Mining Company, a corpora- 
 tion duly organized under the laws of the state of Michigan, and hav- 
 ing a usual place of business in the city, county and state of New 
 York." Upon that bill a subpena was issued, directed to the Quincy 
 Mining Company, and was served upon it within the southern district 
 of New York. The Quincy Mining Company appeared specially, 
 and moved for an order to set aside the service. 
 
 At the hearing of the motion it appeared that the law of Michigan 
 allowed, and its articles of association provided: "The business office 
 of the company shall be in the city, county and state of New York, 
 and another business office at the Quincy mine, in the county of 
 Houghton and state of Michigan." 
 
 The order to set aside the service was granted by the court, upon 
 the ground "that said Quincv Mining Company is a corporation cre- 
 ated and existing under the laws of the state of Michigan, and is an 
 inhabitant of the western district of Michigan, and not an inhabitant 
 of the southern district of New York."] 
 
 MR. JUSTICE GRAY. The single question in this case is whether 
 under the act of March 3, 1887, ch. 373, i, as corrected by the act 
 of August 13, 1888, ch. 866 (the material parts of which are copied 
 in the margin 2 ), a corporation incorporated in one state of the union, 
 
 1 Statement abridged and part of opinion omitted. 
 
 2 "The circuit courts of the United States shall have original cognizance, 
 concurrent with the courts of the several states, of all suits of a civil nature, 
 at common law or in equity, where the matter in dispute exceeds, exclusive 
 of interest and costs, the sum or value of two thousand dollars, and arising 
 
 under the constitution or laws of the United States, or treaties made, or which
 
 3 2 3 POWER TO SUE AND BE SUED. 
 
 and having a usual place of business in another state in which it has 
 not been incorporated, may be sued, in a circuit court of the United 
 States held in the latter state, by a citizen of a different state. 
 
 This question, upon which there has been a diversity of opinion in 
 the circuit courts, can be best determined by a review of the acts of 
 congress, and of the decisions of this court, regarding the original 
 jurisdiction of the circuit courts of the United States over suits be- 
 tween citizens of different states. 
 
 In carrying out the provision of the constitution which declares that 
 the judicial power of the United States shall extend to controversies 
 * 'between citizens of different states," congress, by the judiciary act 
 of September 24, 1789, ch. 20, II, conferred jurisdiction on the 
 circuit court of suits of a civil nature, at common law or in equity, 
 "between a citizen of the state where the suit is brought and a citizen 
 of another state," and provided that "no civil suit shall be brought" 
 "against an inhabitant of the United States," "in any other district 
 than that whereof he is an inhabitant, or in which he shall be found 
 at the time of serving the writ." i St., pp. 78, 79. 
 
 The word "inhabitant," in that act, was apparently used, not in 
 any larger meaning than "citizen," but to avoid the incongruity of 
 speaking of a citizen of anything less than a state, when the intention 
 was to cover not only a district which included a whole state, but also 
 two districts in one state, like the districts of Maine and Massachusetts 
 in the state of Massachusetts, and the districts of Virginia and Ken- 
 tucky in the state of Virginia, established by section 2 of the same 
 act. I St., p. 73. It was held by this court from the beginning that 
 an averment that a party resided within the state or the district in 
 which the suit was brought was not sufficient to support the jurisdic- 
 tion, because in the common use of words a resident might not be a 
 citizen, and, therefore, it was not stated expressly and beyond am- 
 biguity that he was a citizen of the state, which was the fact on which 
 the jurisdiction depended under the provisions of the constitution and 
 of the judiciary act. Bingham v. Cabot, 3 Dall. 382; Turner v. 
 Bank, 4 Dall. 8 ; Abercrombie v. Dupuis, i Cranch 343 ; Hodgson 
 v. Bowerbank, 5 Cranch 303; Brown v. Keene, 8 Pet. 112, 115. 
 The same rule has been maintained to the present day, and has been 
 
 shall be made, under their authority, or in which controversy the United 
 States are plaintiffs or petitioners, or in which there shall he a controversy be- 
 tween citizens of different states, in which the matter in dispute exceeds, ex- 
 clusive of interest and costs, the sum or value aforesaid, or a controversy 
 between citizens of the same state claiming lands under grants of different 
 states, or a controversy between citizens of a state and foreign states, citizens 
 or subjects, in which the matter in dispute exceeds, exclusive of interest and 
 costs, the sum or value aforesaid." "But no person shall be arrested in one 
 district for trial in another in any civil action before a circuit or district court ; 
 and no civil suit shall he brought before either of said courts against any per- 
 son by any original process or proceeding in anv other district than that 
 whereof he is an inhabitant; hut where the jurisdiction is founded only on 
 the fact that the action is between citizens of different states, unit shall be 
 brought only in the district of the residence of either the plaintiff or the de- 
 fendant." 25 St., p. 434.
 
 II08 SHAW V. QUINCY MIN. CO. . 323 
 
 held to be unaffected by the fourteenth amendment of the constitu- 
 tion, declaring that "all persons born or naturalized in the United 
 States, and subject to the jurisdiction thereof, are citizens of the 
 United States and of the state wherein they reside." Robertson v. 
 Cease. 97 U. S. 646; Grace v. American Ins. Co., 109 U. S. 278, 3 
 Sup. Ct. Rep. 207; Timmons v. Land Co., 139 U. S. 378, n Sup. 
 Ct. Rep. 585 ; Denny v. Pironi, 141 U. S. 121, n Sup. Ct. Rep. 966. 
 
 By the act of May 4, 1858, ch. 27, i, it was enacted that, in a 
 state containing more than one district, actions not local should "be 
 brought in the district in which the defendant resides," or, "if there 
 be two or more defendants residing in different districts in the same 
 state," then in either district, n St., p. 272. The whole purport 
 and effect of that act was not to enlarge, but to restrict and distribute, 
 jurisdiction. It applied only to a state containing two or more dis- 
 tricts, and directed suits against citizens of such a state to be brought 
 in that district thereof in which they or either of them resided. It 
 did not subject defendants to any new liability to be sued out of the 
 state of which they were citizens, but simply prescribed in which dis- 
 trict of that state they might be sued. 
 
 These provisions of the acts of 1789 and 1858 were substantially 
 re-enacted in sections 739 and 740 of the Revised Statutes. 
 
 The act of March 3, 1875, ch. 137, i, after giving the circuit 
 courts jurisdiction of suits "in which there shall be a controversy be- 
 tween citizens of different states," and enlarging their jurisdiction in 
 other respects, substantially re-enacted the corresponding provision of 
 the act of 1789, by providing that no civil suit should be brought 
 "against any person" "in any other district than that whereof he is 
 an inhabitant, or in which he shall be found" at the time of service, 
 with certain exceptions, not affecting the matter now under consid- 
 eration. 18 St., p. 470. 
 
 The act of 1887, both in its original form and as corrected in 1888, 
 re-enacts the rule that no civil suit shall be brought against any person 
 in any other district than that whereof he is an inhabitant, but omits 
 the clause allowing a defendant to be sued in the district where he is 
 found, and adds this clause: "But where the jurisdiction is founded 
 only on the fact that the action is between citizens of different states, 
 suit shall be brought only in the district of the residence of either the 
 plaintiff or the defendant." 24 St., p. 552; 25 St., p. 434. As has 
 been adjudged by this court, the last clause is by way of proviso to 
 the next preceding clause, which forbids any suit to be brought in 
 any other district than that whereof the defendant is an inhabitant; 
 and the effect is that, "where the jurisdiction is founded upon any of 
 the causes mentioned in this section, except the citizenship of the par- 
 ties, it must be brought in the district of which the defendant is an 
 inhabitant; but where the jurisdiction is founded solely upon the 
 fact that the parties are citizens of different states, the suit may be 
 brought in the district in which either the plaintiff or the defendant 
 resides." McCormick Co. v. Walthers, 134 U. S. 41, 43, 10 Sup. 
 Ct. Rep. 485. And the general object of this act, as appears upon its
 
 323 POWER TO SUE AND BE SUED. IIOQ 
 
 face, and as has been often declared by this court, is to contract, not 
 to enlarge, the jurisdiction of the circuit courts of the United States. 
 Smith v. Lyon, 133 U. S. 315, 320, 10 Sup. Ct. Rep. 303; In re 
 Pennsylvania Co., 137 U. S. 451, 454, n Sup. Ct. Rep. 141 ; Fisk 
 v. Henarie, 142 U. S. 459, 467, 12 Sup. Ct. Rep. 207. 
 
 As to natural persons, therefore, it can not be doubted that the 
 effect of this act, read in the light of earlier acts upon the same sub- 
 ject and of the judicial construction thereof, is that the phrase "dis- 
 trict of the residence of" a person is equivalent to "district whereof 
 he is an inhabitant," and can not be construed as giving jurisdiction, 
 by reason of citizenship, to a circuit court held in a state of which 
 neither party is a citizen, but, on the contrary, restricts the jurisdic- 
 tion to the district in which one of the parties resides within the state 
 of which he is a citizen ; and that this act, therefore, having taken 
 away the alternative, permitted in the earlier acts, of suing a person 
 in the district "in which he shall be found," requires any suit, the 
 jurisdiction of which is founded only on its being between citizens of 
 different states, to be brought in the state of which one is a citizen, 
 and in the district therein of which he is an inhabitant and resident. 
 
 In the case of a corporation, the reasons are, to say the least, quite 
 as strong for holding that it can sue and be sued only in the state and 
 district in which it has been incorporated, or in the state of which the 
 other party is a citizen. 
 
 In Bank v. Earle, 13 Pet. 519, 588, Chief Justice Taney said: "It 
 is very true that a corporation can have no legal existence out of the 
 boundaries of the sovereignty by which it is created. It exists only 
 in contemplation of law, and by force of the law; and where that law 
 ceases to operate, and is no longer obligatory, the corporation can 
 have no existence. It must dwell in the place of its creation, and can 
 not migrate to another sovereignty. But, although it must live and 
 have its being in that state only, yet it does not by any means follow 
 that its existence there will not be recognized in other places; and its 
 residence in one state creates no insuperable objection to its power of 
 contracting in another." 
 
 This statement has been often reaffirmed by this court, with some 
 change of phrase, but always retaining the idea that the legal exist- 
 ence, the home, the domicile, the habitat, the residence, the citizen- 
 ship of the corporation can only be in the state by which it \vas 
 created, although it may do business in other states whose laws per- 
 mit it. * * * 
 
 (Citing and quoting Insurance Co. v. French, 18 How. 404; Rail- 
 road Co. v. Koontz, 104 U. S. 5, ii, 12. See, also, Paul v. Virginia, 
 8 Wall. 168, 181 ; Railroad Company v. Harris, 12 Wall. 65, 81 ; St. 
 Clair v. Cox, 106 U. S. 350, 354, 356; Railway Co. v. Gebhard, 109 
 U. S. 527, 537; Bank v. Deveaux, 5 Cranch 61 ; Insurance Co. v. 
 Boardman, 5 Cranch 57; Sullivan v. Steamboat Co., 6 Wheat. 4^0; 
 Breithaupt v. Bank, i Pet. 238; Bank v. Slocomb, 14 Pet. 60; Rail- 
 road Co. v. Letson, 2 How. 497, 558; Marshall v. Railroad Co., 16 
 How. 314, 328; Drawbridge Co. v. Shepherd, 20 How. 227, 233;
 
 1 I 10 SHAW V. QU1NCY MIN. CO. 323 
 
 Railroad Co. v. Wheeler, i Black 286, 296; Muller v. Dows, 94 U. 
 S. 444; Steamship Co. v. Tugman, 106 U. S. 118, 121 ; Railroad 
 Co. v. Alabama, 107 U. S. 581, 585; Insurance Co. v. Francis, n 
 Wall. 210, 216.) 
 
 In Ex parte Schollenberger, 96 U. S. 369, 377, Chief Justice 
 Waite said: "A corporation can not change its residence or its citi- 
 zenship. It can have its legal home only at the place where it is 
 located by or under the authority of its charter; but it may by its 
 agents transact business anywhere, unless prohibited by its charter, or 
 excluded by local laws." The jurisdiction of the circuit court in that 
 case, as well as in Insurance Co v. Woodworth, 1 1 1 U. S. 138, 146, 
 4 Sup. Ct. Rep. 364, was maintained upon the ground that the de- 
 fendant corporation, though incorporated in another state, yet, by rea- 
 son of doing business in the state in which the suit was brought, and 
 having appointed an agent there as required by its laws, upon whom 
 process against the company might be served, was found in that state, 
 within the meaning of the act of March 3, 1875, ch. 137, i, then in 
 force, and hereinbefore cited. 
 
 The statute now in question, as already observed, has repealed the 
 permission to sue a defendant in a district in which he is found, and 
 has peremptorily enacted that, "where the jurisdiction is founded 
 only on the fact that the action is between citizens of different states, 
 suit shall be brought only in the district of the residence of either the 
 plaintiff or the defendant." In a case between natural persons, as 
 has been seen, this clause does not allow the suit to be brought in a 
 state of which neither is a citizen. If congress, in framing this clause, 
 did not have corporations in mind, there is no reason for giving the 
 clause a looser and broader construction as to artificial persons who 
 were not contemplated than as to natural persons who were. If, as 
 it is more reasonable to suppose, congress did have corporations in 
 mind, it must be presumed also to have had in mind the law, as long 
 and uniformly declared by this court, that, within the meaning of the 
 previous acts of congress giving jurisdiction of suits between citizens 
 of different states, a corporation could not be considered a citizen or 
 a resident of a state in which it had not been incorporated. * * * 
 
 Under the existing act of congress a corporation incorporated in one 
 state only, can not be compelled to answer, in a circuit court of the 
 United States held in another state in which it has a usual place of 
 business, to a civil suit, at law or in equity, brought by a citizen of a 
 different state. 
 
 Writ of mandamus denied. 
 
 Mr. Justice HARLAN dissented. 
 
 Note. Residence of corporations for purposes of suits against them. The- 
 ories : 
 
 (a) In the state, county or district where the principal office is : 1850, Clarke 
 v. Bank of Misssisippi, lOArk. 516, 52 Am. Dec. 248; 1852, Central Bank v. 
 Gibson, 11 Ga. 453; 1855, Conroe v. National Protec. Ins. Co., 10 How. Pr. 403; 
 1856, Thorn v. Central R., 2 Dutch. (N. J.) 121 ; 1858, Connecticut & P. R. Co. 
 v. Cooper, 30 Vt. 476, 73 Am. Dec. 319; 1859, Crowley v. Panama R., 30 Barb. 
 99; 1861, Adams v. Great West. R. Co., 6 Hurls. & N. 404, 30 L. J. (N. S.)
 
 324 POWER TO SUE AND BE SUED. II 1 1 
 
 Eq. 124; 1863, Jenkins v. California Stage Co., 22 Cal. 537; 1888, Holgate 
 v. Oregon Pac. R. Co , 116 Ore. 123, 20 A. & E. Corp. Cas. 527 ; 1894, Galveston, 
 H. & 8. A. R. Co. v. Gonzales, 151 U. S 496; 1895, Ireland v. Globe Milling 
 Co., 19 R. I. 180, 61 Am. St. Rep. 756; 1895, In reKeasbey, etc., 160 U. S. 221 ; 
 1896, Duke v. Taylor, 37 Fla. 64, 53 Am. St. Rep. 232; 1896, Crookston v. Cen- 
 tennial En M. Co., 13 Utah 117, 4 A. & E. Corp. Cas. N. S. 30; 1898, Hergm-r. 
 etc., Brewing Co. v. Dreyfus, 172 Mass. 154, 70 Am. St. Rep. 251 ; 1898, Tur- 
 cott v. R., 101 Tenn. 102, 70 Am. St. Rep. 661 ; 1899, Louisville, N. A. & C. 
 R. v. La. T. Co., 174 U. S. 552, 19 S. C. 819. See, also, note, p. 56, supra. 
 
 (b) Railroad and other companies, having improvements located in various 
 counties, may be sued in any county in which their lines are, and where they 
 do business: 1854, Bristol v. Chicago & Aurora R.Co., 15 III. 436; 1857, Bald- 
 win v. Mississippi R. Co., 5 Clarke (Iowa) 518; 1857, Belden v. N. Y. & Har- 
 lem R. Co., 15 How. Pr. (N. Y.) 17; 1858, Connecticut & P. R. Co. v. Cooper, 
 30 Vt. 476, 73 Am. Dec. 319, contra; 1859, Richardson v. Burlington, etc., R. 
 Co., 8 Clarke (Iowa) 260. 
 
 (c) Some cases hold that jurisdiction is not confined to locality of principal 
 office, but extends throughout the territory of the state granting the charter: 
 1845, Cromwell v. Insurance, 2 Rich. Law (S. C.) 512; 1846, Glaize v. South 
 Car. R. Co., 1 Strobh. Law (S. C.) 70; 1855, B. & O. R. Co. v. Gallahue's 
 Admr., 12 Gratt. (Va.) 655,65 Am. Dec. 254. 
 
 (d) A few cases held that corporations had no residence, but must be sued 
 where one or more corporators reside: 1839, Wood v. Hartford Fire Ins. Co., 
 13 Conn. 202, 33 Am. Dec. 395; Bank of U. S. v. Deveaux, 5 Cranch (U. S.) 
 61 ; Cooper's Lessee v. Galbraith, 3 Wash. (C. C.) 546; 1867, City of St. Louis 
 v. Wiggins Ferry Co., 40 Mo. 580, contra, and the many recent cases given in 
 (a) above. 
 
 Sec. 324. Same. Alien corporation. 
 
 BARROW STEAMSHIP COMPANY v. KANE. 1 
 
 1898. IN THE SUPREME COURT OF THE UNITED STATES. 170 
 U. S. Rep. 100-113. 
 
 MR. JUSTICE GRAY. This action was brought in the circuit court 
 of the United States for the southern district of New York against 
 the Barrow Steamship Company, by a passenger on one of its steam- 
 ships on a voyage from Londonderry, in Ireland, to the city of New 
 York, for an assault upon him by its agents in the port of London- 
 derry. The certificate of the circuit court of appeals shows that the 
 plaintiff is a citizen and resident of the state of New Jersey; that the 
 defendant is a corporation, organized and incorporated under the laws 
 of the United Kingdom of Great Britain and Ireland, and a common 
 carrier running a line of steamships from ports in that kingdom to the 
 port of New York, and does business in the state of New York, 
 through a mercantile firm, its regularly appointed agents, and upon 
 whom the summons in this action was served. 
 
 It was contended, in behalf of the steamship company, that, being 
 a foreign corporation, no suit could be maintained against it in per- 
 sonam in this country without its consent, express or implied ; that 
 by doing business in the state of New York it consented to be sued 
 only as authorized by the statutes of the state; that the jurisdiction 
 
 1 Statement except as given in the opinion omitted.
 
 I I 12 BARROW STEAMSHIP COMPANY V. KANE. 324 
 
 ot the courts of the United States held within the state depended on 
 the authority given by those statutes ; that the statutes of New York 
 conferred no authority upon any court to issue process against a for- 
 eign corporation in an action by a non-resident, and for a cause not 
 arising within the state, and, therefore, that the circuit court acquired 
 no jurisdiction of this action brought against a British corporation by 
 a citizen and resident of New Jersey. 
 
 The constant tendency of judicial decisions in modern times has 
 been in the direction of putting corporations upon the same footing 
 as natural persons in regard to the jurisdiction of suits by or against 
 them. 
 
 By the constitution of the United States the judicial power, so far 
 as depending upon citizenship of parties, was declared to extend to 
 controversies "between citizens of different states," and to those be- 
 tween "citizens" of a state and foreign "citizens or subjects." And 
 congress, by the judiciary act of 1789, in defining the original juris- 
 diction of the circuit courts of the United States, described each party 
 to such a controversy, either as "a citizen" of a state, or as "an 
 alien." Act of September 24, 1789, n; i Stat., 78; Rev. Stat., 
 629. Yet the words "citizens" and "aliens," in these provisions 
 of the constitution and of the judiciary act, have always been held by 
 this court to include corporations. 
 
 The jurisdiction of the circuit courts over suits between a citizen 
 of one state and a corporation of another state was at first maintained 
 upon the theory that the persons composing the corporation were 
 suing or being sued in its name, and upon the presumption of fact 
 that all those persons were citizens of the state by which the corpora- 
 tion had been created, but that this presumption might be rebutted, 
 by plea and proof, and the jurisdiction thereby defeated. Bank of 
 United States v. Deveaux, 5 Cranch 61, 87, 88; Hope Ins. Co. v. 
 Boardman, 5 Cranch 57; Commercial Bank v. Slocomb, 14 Pet. 60. 
 
 But the earlier cases were afterwards overruled, and it has become 
 the settled law of this court that, for the purposes of suing and being 
 sued in the courts of the United States, a corporation created by and 
 doing business in a state is, although an artificial person, to be con- 
 sidered as a citizen of the state as much as a natural person, and there 
 is a conclusive presumption of law that the persons composing the 
 corporation are citizens of the same state with the corporation. Louis- 
 ville, etc., Railroad v. Letson, 2 How. 497, 558; Marshall v. Balti- 
 more & Ohio Railroad, 16 How. 314, 329; Muller v. Dows, 94 U. 
 S. 444; Steamship Co. v. Tugman. 106 U. S. 118; St. Louis & San 
 Francisco Railway v. James, 161 U. S. 545, 555~559- * * * 
 
 (Quoting from Bank of Augusta v. Earle, 13 Pet. 519.) 
 
 The manifest injustice which would ensue, if a foreign corporation, 
 permitted by a state to do business therein, and to bring suits in its 
 courts, could not be sued in those courts, and thus, while allowed the 
 benefits, be exempt from the burdens of the laws of the state, has 
 induced many states to provide by statute that a foreign corporation 
 making contracts within the state shall appoint an agent residing
 
 324 POWER TO SUE AND BE SUED. 1 1 13 
 
 therein, upon whom process may be served in actions upon such con- 
 tracts. This court has often held that wherever such a statute exists 
 service upon an agent so appointed is sufficient to support jurisdiction 
 of an action against the foreign corporation, either in the courts of 
 the state, or, when consistent with the acts of congress, in the courts 
 of the United States held within the state, but it has never held the 
 existence of such a statute to be essential to the jurisdiction of the 
 circuit courts of the United States. Lafayette Ins. Go. v. French, 18 
 How. 404 ; Ex parte Schollenberger, 96 U. S. 369 ; New England 
 Ins. Co. v. Woodworth, in U. S. 138, 146; Shaw v. Quincy Mining 
 Co., 145 U. S. 444, 452. * * * 
 
 (Citing and quoting from Lafayette Ins. Co. v. French, 18 How. 
 408, 409; Railroad Co. v. Harris, 12 Wall. 65, 83, 84.) 
 
 In England the right of a foreign corporation doing business in 
 England to sue in the English courts was long ago recognized, and 
 its liability to be subjected to suit in those courts, by service made 
 upon one of its principal officers residing and representing it within 
 the realm, has been fully established by recent decisions. Newby v. 
 Von Oppen, L. R. 7 Q. B. 293 ; Haggin v. Comptoir d'Escompte 
 de Paris, 23 Q. B. D. 519. 
 
 In the courts of several states of the union the like view has pre- 
 vailed. Libbey v. Hodgdon, 9 N. H. 394; March v. Eastern Rail- 
 road Co. ,40 N. H. 548, 579; Day v. Essex County Bank, 13 Vt. 
 97; Moulin v. Trenton Ins. Co., i Dutcher (25 N. J. Law) 57; 
 Bushel v. Commonwealth Ins. Co., 15 S. & R. 173; North Mis- 
 souri Railroad v. Akers, 4 Kan. 453, 469; Council Bluffs Co. v. 
 Omaha Co., 49 Neb. 537. The courts of New York and Massachu- 
 setts, indeed, have declined to take jurisdiction of suits against for- 
 eign corporations, except so far as it has been expressly conferred by 
 statutes of the state. McQueen v. Middletown Manuf. Co., 16 Johns. 
 5; Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315; 
 Desper v. Continental Water Meter Co., 137 Mass. 252. But the 
 jurisdiction of the circuit courts of the United States is not created by, 
 and does not depend upon, the statutes of the several states. 
 
 In the circuit courts of the United States there have been conflicting 
 opinions, but the most satisfactory ones are those of Judge Drum- 
 mond and Judge Lowell in favor of the liability of foreign corpora- 
 tions to be sued. Wilson Packing Co. v. Hunter, 8 Bissell 429 ; 
 Hayden v. Androscoggin Mills, i Fed. Rep. 93. * * * 
 
 (Citing and quoting from Lafayette Ins. Co. v. French, 18 How. 
 407.) 
 
 The object of the provisions of the constitution and statutes of the 
 United States, in conferring upon the circuit courts of the United 
 States jurisdiction of controversies between citizens of different states 
 of the union, or between citizens of one of the states and aliens, was 
 to secure a tribunal presumed to be more impartial than a court of the 
 state in which one of the litigants resides. 
 
 The jurisdiction so conferred upon the national courts can not be 
 abridged or impaired by any statute of a state. Hyde v. Stone, 20
 
 I I 14 BARROW STEAMSHIP COMPANY V. KANE. 324 
 
 How. 170, 175; Smyth v. Ames, 169 U. S. 466, 516. It has, there- 
 fore, been decided that a statute, which requires all actions against a 
 county to be brought in the county court, does not prevent the circuit 
 court of the United States from taking jurisdiction of such an action, 
 Chief Justice Chase saying that "no statute limitation of suability 
 can defeat a jurisdiction given by the constitution." Covvles v. 
 Mercer County, 7 Wall. 118, 122; Lincoln County v. Luning, 133 
 U. S. 529; Chicot County v. Sherwood, 148 U. S. 529. So statutes 
 requiring foreign corporations, as a condition of being permitted to 
 do business within the state, to stipulate not to remove into the courts 
 of the United States suits brought against them in the courts of the 
 state, have been adjudged to be unconstitutional and void. Home 
 Ins. Co. v. Morse, 20 Wall. 445 ; Barren v. Burnside, 121 U. S. 186; 
 Southern Pacific Co. v. Denton, 146 U. S. 202. 
 
 On the other hand, upon the fundamental principle that no one 
 shall be condemned unheard, it is well settled that in a suit against a 
 corporation of one state, brought in a court of the United States held 
 within another state, in which the corporation neither does business, 
 nor has authorized any person to represent it, service upon one of its 
 officers or employes found within the state will not support the juris- 
 diction, notwithstanding that such service is recognized as sufficient 
 by the statutes or the judicial decisions of the state. St. Clair v. Cox, 
 1 06 U. S. 350; Fitzgerald Co. v. Fitzgerald, 137 U. S. 98, 106; 
 Goldey v. Morning News, 156 U. S. 518. See, also, Mexican Cen- 
 tral Railway v. Pinkney, 149 U. S. 194. 
 
 By the existing act of congress defining the general jurisdiction of 
 the circuit courts of the United States, those courts "shall have orig- 
 inal cognizance, concurrent with the courts of the several states, of all 
 suits of a civil nature, at common law or in equity, when the matter 
 in dispute exceeds, exclusive of interest and costs, the sum or value of 
 two thousand dollars," "in which there shall be a controversy be- 
 tween citizens of different states," "or a controversy between citizens 
 of a state and foreign states, citizens or subjects," and, as has been 
 adjudged by this court, the subsequent provisions of the act, as to the 
 district in which suits must be brought, have no application to a suit 
 against an alien or a foreign corporation, but such a person or corpo- 
 ration may be sued by a citizen of a state of the union in any district 
 in which valid service can be made upon the defendant. Act of 
 March 3, 1887, ch. 373, i, as corrected by the act of August 13, 
 1888, ch. 866, i; 24 Stat., 552; 25 Star.., 434; Shaw v. Quincy 
 Mining Co., 145 U. S. 444, 453; In re Hohorst, 150 U. S. 653; 
 Galveston, etc., Railway v. Gonzales, 151 U. S. 496, 503; In re 
 Keasbey & Mattison Co., 160 U. S. 221, 229, 230. 
 
 The present action was brought by a citizen and resident of the 
 state of New Jersey, in a circuit court of the United States held 
 within the state of New York, against a foreign corporation doing 
 business in the latter state. It was for a personal tort committed 
 abroad, such as would have been actionable if committed in the state 
 of New York or elsewhere in this country, and an action for which
 
 3 2 5 POWER TO SUE AND BE SUED. * 1 1 15 
 
 might be maintained in any circuit court of the United States which 
 acquired jurisdiction of the defendant. Railroad Co. v. Harris, 
 above cited; Dennick v. Railroad Co., 1031!. S. u; Huntington 
 v. Attrill, 146 U. S. 657, 670,675; Stewart v. Baltimore & Ohio 
 Railroad, 168 U. S. 445. The summons was duly served upon the 
 regularly appointed agents of the corporation in New York. In re 
 Hohorst, above cited. The action was within the general jurisdiction 
 conferred by congress upon the circuit courts of the United States. 
 The fact that the legislature of the state of New York has not seen fit 
 to authorize like suits to be brought in its own courts by citizens and 
 residents of other states can not deprive such citizens of their right to 
 invoke the jurisdiction of the national courts under the constitution 
 and laws of the United States. 
 
 The necessary conclusion is that the circuit court had jurisdiction 
 to try the action and to render judgment therein against the defend- 
 ant, and that the 
 
 Question certified must be answered in the affirmative. 
 
 Note. See, 1893, In re Hohorst, 150 U. S. 653; 1899, In re La Bourgoyne, 
 79 L. T. Rep. (N. S.) 331. 
 
 Sec. 325. In the state courts, where found doing business. 
 ST. CLAIR v. COX. 1 
 
 1882. IN THE SUPREME COURT OF THE UNITED STATES. 106 U. S. 
 
 Re P- 35-3 6 - 
 
 [Error to United States Circuit Court, eastern district of Michigan. 
 Action by Cox v. St. Clair to recover $5,000 on two notes made by 
 St. Clair to the Winthrop Mining Company, an Illinois corporation, 
 payable in Chicago, for ore and property sold by the mining company 
 to the defendant. The defense was that plaintiff purchased the note 
 after maturity, and after notice that defendant had obtained a judg- 
 ment in the Michigan courts against the mining company to the amount 
 of $10,000, which should properly be offset against the note. At 
 the trial a certified copy of the judgment was offered in evidence, but 
 on objection it was excluded, because it was not shown the state court 
 had obtained jurisdiction of the parties. Exception was taken, but 
 judgment was rendered for plaintiff for full amount. The exclusion 
 of the judgment is assigned as error.] 
 
 MR. JUSTICE FIELD. * * * The judgment of the circuit court 
 in Michigan was rendered in an action commenced by attachment. If 
 the plaintiffs in that action were, at* its commencement, residents of 
 the state, of which some doubt is expressed by counsel, the jurisdic- 
 tion of the court, under the writ, to dispose of the property attached, 
 
 1 Statement abridged; part of opinion omitted.
 
 IIl6 ST. CLAIR V. COX. 325 
 
 can not be doubted, so far as was necessary to satisfy their demand. 
 No question was raised as to the validity of the judgment to that ex- 
 tent. The objection to it was as evidence that the amount rendered 
 was an existing obligation or debt against the company. If the court 
 had not acquired jurisdiction over the company, the judgment estab- 
 lished nothing as to its liability, beyond the amount which the pro- 
 ceeds of the property discharged. There was no appearance of the 
 company in the action, and judgment against it was rendered for 
 $6,450 by default. The officer, to whom the writ of attachment was 
 issued, returned that, by virtue of it, he had seized and attached cer- 
 tain specified personal property of the defendant, and had also served 
 a copy of the writ, with a copy of the inventory of the property at- 
 tached, on the defendant, "by delivering the same to Henry J. Col- 
 well, Esq., agent of the said Winthrop Mining Company, personally, 
 in said county." 
 
 The laws of Michigan provide for attaching property of abscond- 
 ing, fraudulent and non-resident debtors and of foreign corporations. 
 They require that the writ issued to the sheriff, or other officer by 
 whom it is to be served, shall direct him to attach the property of the 
 defendant, and to summon him if he be found within the county, and 
 also to serve on him a copy of the attachment and of the inventory of 
 the property attached. They also declare that where a copy of the 
 writ of attachment has been personally served on the defendant, the 
 same proceedings may be had thereon in the suit in all respects as 
 upon the return of an original writ of summons personally served 
 where suit is commenced by such summons. 2 Comp. Laws, 1871, 
 sections 6397 and 6413. 
 
 They also provide, in the chapter regulating proceedings by and 
 against corporations, that "suits against corporations may be com- 
 menced by original writ of summons, or by declaration, in the same 
 manner that personal actions may be commenced against individuals, 
 and such writ, or a copy of such declaration, in any suit against a cor- 
 poration, may be served on the presiding officer, the cashier, the sec- 
 retary or the treasurer thereof; or, if there be no such officer, or none 
 can be found, such service may be made on such other officer or member 
 of such corporation, or in such other manner as the court in which 
 such suit is brought may direct ;" and that "in suits commenced by 
 attachment in favor of a resident of this state against any corporation 
 created by or under the laws of any other state, government or coun- 
 try, if a copy of such attachment and of the inventory of property 
 attached shall have been personally served on any officer, member, 
 clerk or agent of such corporation within this state, the same proceed- 
 ings shall be thereupon had, and with like effect, as in case of an at- 
 tachment against a natural person, which shall have been returned 
 served in like manner upon the defendant." 2 Comp. Laws, 1871, 
 sections 6544 and 6550. 
 
 The courts of the United States only regard judgments of the state 
 courts establishing personal demands as having validity or as im- 
 porting verity where they have been rendered upon personal citation
 
 325 POWER TO SUE AND BE SUED. Ill/ 
 
 of the party, or. what is the same thing, of those empowered to re- 
 ceive process for him, or upon his voluntary appearance. 
 
 In Pennoyer v. Neff we had occasion to consider at length the man- 
 ner in which state courts can acquire jurisdiction to render a personal 
 judgment against non-residents which would be received as evidence 
 in the federal courts ; and we held that personal service of citation on 
 the party or his voluntary appearance was, with some exceptions, 
 essential to the jurisdiction of the court. The exceptions related to 
 those cases where proceedings are taken in a state to determine the 
 status of one of its citizens toward a non-resident, or where a party 
 has agreed to accept a notification to others or service on them as 
 citation to himself. 95 U. S. 714. 
 
 The doctrine of that case applies, in all its force, to personal judg- 
 ments of state courts against foreign corporations. The courts render- 
 ing them must have acquired jurisdiction over the party by personal 
 service or voluntary appearance, whether the party be a corporation 
 or a natural person. There is only this difference: A corporation, 
 being an artificial being, can act only through agents, and only through 
 them can be reached, and process must, therefore, be served upon 
 them. In the state where a corporation is formed it is not difficult to 
 ascertain who are authorized to represent and act for it. Its charter 
 or the statutes of the state will indicate in whose hands the control 
 and management of its affairs are placed. Directors are readily found, 
 as also the officers appointed by them to manage its business. But 
 the moment the boundary of the state is passed difficulties arise ; it is 
 not so easy to determine who represent the corporation there, and un- 
 der what circumstances service on them will bind it. 
 
 Formerly it was held that a foreign corporation could not be sued 
 in an action for the recovery of a personal demand outside of the state 
 by which it was chartered. * * * 
 
 (Quoting and citing McQueen v. Middleton Mfg. Co., 16 Johns. 
 (N. Y.) 5; Peckham v. North Parish, 16 Pick. 274; Libbey v. 
 Hodgdon, 9 N. H. 394; Moulin v. Trenton Ins. Co., 24 N. J. Law 
 222.) 
 
 This doctrine of the exemption of a corporation from suit in a state 
 other than that of its creation was the cause of much inconvenience, 
 and often of manifest injustice. The great increase in the number of 
 corporations of late years, and the immense extent of their business, 
 only made this inconvenience and injustice more frequent and marked. 
 Corporations now enter into all the industries of the country. The 
 business of banking, mining, manufacturing, transportation and in- 
 surance is almost entirely carried on by them, and a large portion of 
 the wealth of the country is in their hands. Incorporated under the 
 laws of one state, they carrry on the most extensive operations in 
 other states. To meet and obviate this inconvenience and injustice, 
 the legislatures of several states interposed, and provided for service 
 of process on officers and agents of foreign corporations doing busi- 
 ness therein. Whilst the theoretical and legal view, that the domicile 
 of a corporation is only in the state where it is created, was admitted,
 
 IIl8 ST. CLAIR V. COX. 325 
 
 it was perceived that when a foreign corporation sent its officers and 
 agents into other states and opened offices, and carried on its business 
 there, it was, in effect, as much represented by them there as in the state 
 of its creation. As it was protected by the laws of those states, allowed 
 to carry on its business within their borders, and to sue in their courts, 
 it seemed only right that it should be held responsible in those courts 
 to obligations and liabilities there incurred. 
 
 All that there is in the legal residence of a corporation in the state 
 of its creation consists in the fact that by its laws the corporators are 
 associated together and allowed to exercise as a body certain func- 
 tions, with a right of succession in its members. Its officers and 
 agents constitute all that is visible of its existence ; and they may be 
 authorized to act for it without as well as within the state. There 
 would seem, therefore, to be no sound reason why, to the extent of 
 their agency, they should not be equally deemed to represent it in the 
 states for which they are respectively appointed when it is called to 
 legal responsibility for their transactions. 
 
 The case is unlike that of suits against individuals. They can -act 
 by themselves, and upon them process can be directly served, but a 
 corporation can only act and be reached through agents. Serving 
 process on its agents in other states, for matters within the sphere of 
 their agency, is, in effect, serving process on it as much so as if such 
 agents resided in the state where it was created. 
 
 A corporation of one state can not do business in another state 
 without the latter's consent, express or implied, and that consent may 
 be accompanied with such conditions as it may think proper to im- 
 pose. As said by this court in Lafayette Insurance Co. v. French: 
 "These conditions must be deemed valid and effectual by other 
 states and by this court, provided they are not repugnant to the con- 
 stitution or laws of the United States, or inconsistent with those 
 rules of public law which secure the jurisdiction and authority of each 
 state from encroachment by all others, or that principle of natural jus- 
 tice which forbids condemnation without opportunity for defense." 
 18 How. 404, 407; Paul v. Virginia, 8 Wall. 168. 
 
 The state may, therefore, impose as a condition upon which a for- 
 eign corporation shall be permitted to do business within her limits, 
 that it shall stipulate that in any litigation arising out of its transac- 
 tions in the state, it will accept as sufficient the service of process on 
 its agents or persons especially designated ; and the condition would 
 be eminently fit and just. And such condition and stipulation may 
 be implied as well as expressed. If a state permits a foreign corpo- 
 ration to do business within her limits, and at the same time provides 
 that in suits against it for business there done, process shall be served 
 upon its agents, the provision is to be deemed a condition of the per- 
 mission, and the corporations that subsequently do business in the 
 state are -to be deemed to assent to such condition as fully as though 
 they had specially authorized their agents to receive service of the 
 process. Such condition must not, however, encroach upon that prin- 
 ciple of natural justice which requires notice of a suit to a party before
 
 325 POWER TO SUE AND BE SUED. 1 1 Ip 
 
 he can be bound by it. It must be reasonable, and the service pro- 
 vided for should be only upon such agents as may be properly deemed 
 representatives of the foreign corporation. The decision of this court 
 in Lafayette Insurance Co. v. French, to which we have already re- 
 ferred, sustains these views. * * * 
 
 We do not, however, understand the laws of Michigan as authoriz- 
 ing the service of a copy of the writ, as a summons, upon an agent of 
 a foreign corporation, unless the corporation be engaged in business 
 in the state, and the agent be appointed to act there. We so construe 
 the words " agent of such corporation within this state." They do 
 not sanction service upon an officer or agent of the corporation who 
 resides in another state, and is only casually in the state, and not 
 charged with any business of the corporation there. * * * 
 
 (Citing and quoting to this effect Newell v. Great Western Ry. 
 Co., 19 Mich. 344; Moulin v. Trenton Ins. Co., 24 N. J. Law 222, 
 
 234-) 
 
 Without considering whether authorizing service of a copy of a writ 
 of attachment as a summons on some of the persons named in the 
 statute a member, for instance, of the foreign corporation, that is, a 
 mere stockholder is not a departure from the principle of natural 
 justice mentioned in Lafayette Insurance Co. v. French, which forbids 
 condemnation without citation, it is sufficient to observe that we are 
 of opinion that when service is made within the state upon an agent 
 of a foreign corporation, it is essential, in o % rder to support the juris- 
 diction of the court to render a personal judgment, that it should ap- 
 pear somewhere in the record either in the application for the writ, 
 or accompanying its service, or in the pleadings or the finding of the 
 court that the corporation was engaged in business in the state. The 
 transaction of business by the corporation in the state, general or 
 special, appearing, a certificate of service by the proper officer on a 
 person who is its agent there would, in our opinion, be sufficient 
 prima facie evidence that the agent represented the company in the 
 business. It would then be open, when the record is offered as evi- 
 dence in another state, to show that the agent stood in no representa- 
 tive character to the company, that his duties were limited to those of 
 a subordinate employe, or to a particular transaction, or that his agency 
 had ceased when the matter in suit arose. 
 
 In the record, a copy of which was offered in evidence in this case, 
 there was nothing to show, so far as we can see, that the Winthrop 
 Mining Company was engaged in business in the state when service 
 was made on Colwell. The return of the officer, on which alone re- 
 liance was placed to sustain the jurisdiction of the state court, gave no 
 information on the subject. It did not, therefore, appear even prima 
 facie that Colwell stood in any such representative character to the 
 company as would justify the service of a copy of the writ on him. 
 The certificate of the sheriff, in the absence of this fact in the record, 
 was insufficient to give the court jurisdiction to render a personal judg- 
 ment against the foreign corporation. The record was, therefore, 
 properly excluded. 
 
 Judgment affirmed.
 
 II2O ST. CLAIR V. COX. 32$ 
 
 Note. Service of process. 
 
 1. Domestic corporations: 
 
 (a) At common law, on officers, was sufficient: 1819, McQueen v. Middle- 
 ton Mfg. Co., 16 Johns, o; 1837, Meriwether v. Bank of Hamburg, Dud. 
 (S. C.) 36; 1846, Glaize v. South Car. E. Co., 1 Strobh. L. (S. C.) 70; 1869, 
 Newell v. Great Western R. Co., 19 Mich. 336; 1871, Hartford City Fire Ins. 
 Co. v. Carrugi, 41 Ga. 660; 1875, Barnett v. Chicago & L. H. R. Co., 4 
 Hun 114. 
 
 (b) By statutes, service may be made on general officers, such as president, 
 secretary, cashier, general superintendent, managing officers, etc. : 1854, 
 Chamberlin v. Mammoth Mining Co., 20 Mo. 96 (president) ; 1854, Willamette 
 Falls Co. v. Williams, 1 Ore. 112; 1854, Commerce Bank v. Rutland & W. R., 
 10 How. Pr. 1 (general manager) ; 1865, Carr v. Commercial Bank of Racine, 
 19 Wis. 272; 1865, Gillig v. Independent G. & S. M. Co., 1 Nev. 247 (secre- 
 tary) ; 1867, Adams Express Co. v. St. John, 17 Ohio St. 641 (general super- 
 intendent); 1872, Newby & Colts Pat. Fa. Co., L. R. 7 Ct. Q. B. 293; 1882, 
 McMurtry v. Tuttle, 13 Neb. 232 (treasurer); 1893, Taylor v. Granite State, 
 etc., Assn., 136 N. Y. 343, 32 Am. St. Rep. 749 (an attorney is not such of- 
 ficer) . 
 
 But a ticket seller (1859, Doty v. Mich. C. R. Co., 8 Abb. Pr. 427; 1900, 
 Denver, etc., R. Co. v. Roller, 100 Fed. Rep. 738); baggage master (1851, 
 Flynn v. Hudson Riv. R. Co., 6 How. Pr. 308); ship captain (1862, Upper 
 Miss. Trans. Co. v. Whittaker, 16 Wis. 220) ; or an attorney (1893, Taylor v. 
 Granite State Assn., 136 N. Y. 343, 32 Am. St. Rep. 749), are not such officers 
 as justify service unless specially provided for. 
 
 Yet generally it is now held that any agent authorized to contract the debt, 
 or represent the corporation in the particular transaction, sufficiently repre- 
 sents the corporation in accepting service of summons in a mattter arising 
 from such transaction : 1892, Klopp v. Creston City W. W. Co., 34 Neb. 808, 
 33 Am. St. Rep. 666; Am. Bell Tel. Co., 29 Fed. Rep. 17, 34; 1892, Reyer v. 
 Odd Fellows', etc.. Assn., 157 Mass. 367, 34 Am. St. Rep. 288; 1894, Foster v. 
 Betcher Lumber Co., 5 S. D. 57, 49 Am. St. Rep. 859, 23 L. R. A. 490; 1895, 
 Gude v. Dakota F. & M. Ins. Co., 7 S. D. 644, 58 Am. St. Rep. 860; 1896, Pol- 
 lock v. Building & L. Assn., 48 S. C. 65, 59 Am. St. Rep. 695; 1898, Turcott 
 v. Railroad Co., 101 Tenn. 102, 70 Am. St. Rep. 661; 1898, Conn. Mut. Ins. 
 .Co. v. Spratley, 172 U. S. 602. 
 
 2. Foreign corporations. 
 
 (a) At common law, not on an officer outside of the state creating the cor- 
 poration: 1819, McQueen v. Middleton Mfg. Co., 16 Johns. 5; 1834, Peckham 
 v. North Parish, 16 Pick. (Mass.) 274; 1875, Barnett v. Chicago & L. H. R. 
 Co., 4 Hun 114. 
 
 But see, contra, 1871, Hartford Ins. Co. v. Carrugi. 41 Ga. 660; 1875, Bawk- 
 night v. Liverpool L. & G. Ins. Co., 55 Ga. 195. 
 
 (b) Under statutes, only when the statute allows, i. e., by express statutory 
 authority, and then generally only such as are doing business and have agents 
 in the state: 1861, O. & M. R. Co. v. Wheeler, 1 Black (U. S.) 286, on 297 ; 1866, 
 Camden Rolling M. Co. v. Swede Iron Co., 32 N. J. Law 15; 1868, Howell v. 
 Chicago & N. W. R. Co., 51 Barb. (N. Y.) 378; 1873, Lathrop v. Union Pac. 
 R. Co., 1 McAr. (D. C.) 234; 1875, Dallas v. Atlantic & M. R. Co., 2 McAr. 
 (D. C.) 146; 1893, Aldrich v. Anchor Coal Co., 24 Ore. 32, 41 Am. St. Rep. 
 831 ; 1894, Foster v. Betcher Lumber Co., 5 S. D. 57, 49 Am. St. Rep. 859, 23 
 L. R. A. 490, note; 1898, Crook v. Girard Iron Co., 87 Md. 138, 67 Am. St. 
 Rep. 325; 1898, Carstens v. Leidigh" & L. Co., 18 Wash. 450, 63 Am. St. Rep. 
 906, 39 L. R. A. 548; 1898, Conn. Mut, Ins. Co. v. Spratley, 172 U. S. 602; 
 1899, Mecke v. Valleytown M. Co., 93 Fed. Rep. 697; 1900, Denver & R. G. R. 
 Co. v. Roller, 100 Fed. Rep. 738; 1900, J. W. Thompson v. Whitehead, 185 
 111. 454. 
 
 While it is held that only an officer named in the statute can accept service, 
 1895, First Nat'l Bk. v. Huntington Dis. Co., 41 W. Va. 530, 56 Am. St. Rep. 
 878, yet it would seem that any agent that is authorized to do the business is 
 sufficient if he regularly represents the company in such business. See supra, 
 Domestic corporations "(b).
 
 326 POWER TO SUE AND BE SUED. 1 12 1 
 
 But service on agent temporarily in the state, is not generally sufficient 
 'see cases above), though there are a few cases to the contrary: 1877, Hiller 
 v. B. & M. R. Co., 70 N. Y. 223; 1887, Childs v. Harris Mfg. Co., 104 N. 
 Y. 477. 
 
 Sec. 826. What is doing business so as to authorize service. 
 
 RYERSON v. WAYNE CIRCUIT JUDGE. 1 
 
 1897. IN THE SUPREME COURT OF MICHIGAN. 114 Mich. Rep. 
 
 352-354- 
 
 [Mandamus by Ryerson to compel the circuit judge of Wayne 
 county to vacate an order setting aside the service of summons against 
 a foreign corporation.] 
 
 MOORE, J. March n, 1897, relator, a resident of Detroit, com- 
 menced a suit by summons in 'the Wayne Circuit Court against the 
 Beach & Clarridge Company, a Massachusetts corporation, for a 
 cause of action accruing in Wayne county. The service was made 
 upon H. L. Baker, who is said by relator to be the traveling agent of 
 said corporation. Motion was made to set aside the service, because 
 unauthorized. The service was set aside and the proceedings dis- 
 missed. It is sought to review that action here. 
 
 It is claimed the service was authorized by Act No. 61 of the Pub- 
 lic Acts of 1895, which reads: 
 
 "Suits may be commenced at law or in equity in the circuit court 
 for any county of this state where the plaintiff resides * * 
 
 against any corporation not organized under the laws of this state, in 
 all cases where the cause of action accrues within the state of Michi- 
 gan, by service * * * upon any officer or agent of the corpora- 
 tion," etc. 
 
 The record shows that Mr. Baker was a traveling salesman of the 
 Massachusetts corporation. His business was the taking of orders 
 for goods in this and a number of other states. He had no office in 
 this state. He did not have charge of any men under him. His 
 duties were those of the ordinary traveling agent, selling goods to 
 retail dealers. * * * 
 
 It is the claim of the respondent that Mr. Baker was not such an 
 agent as is meant by the statute, where it authorizes service upon an 
 agent; citing Newell v. Railway Co., 19 Mich. 336; Watson v. 
 Wayne Circuit Judge, 24 Mich. 38; Lake Shore, etc., R. Co. v. 
 Hunt, 39 Mich. 469; Pettit v. Booming Co., 74 Mich. 214; Kirby 
 Carpenter Co. v. Trombley, 101 Mich. 447. These cases do not 
 throw much light upon the discussion, as the statute construed by 
 them is quite different from the one to be construed here. In the last 
 three cases the statute reads that service might be made on certain of- 
 ncers, and the "general or special agent, superintendent or other prin- 
 cipal officer." 
 
 1 Part of opinion omitted. 
 71 WIL. CAS.
 
 I 122 EXCHANGE BANK V. CAPPS. 327 
 
 Counsel also cites Maxwell v. Railroad Co., 34 Fed Rep. 286. In 
 this case Justice Brown held: "It does not appear to me that the law 
 of this state with respect to suits against foreign corporations (2 How. 
 Stat. , 8145) cuts any figure in the case, since it provides for service 
 of process upon the agent of a foreign corporation only where the 
 cause of action arises within this state," and he held that the cause of 
 action did not arise in this state, and for that reason the court did not 
 get jurisdiction. In the case of Fairbank & Co. v. Cincinnati, etc., 
 R. Co., 4 C. C. A. 403, 54 Fed. Rep. 420, there was a dissenting 
 opinion, which we think is more in harmony with the later decisions 
 of this court, which we shall hereafter cite, than the prevailing opinion. 
 In Gottschalk Co. v. Distilling, etc., Co., 50 Fed. Rep. 681, it was 
 held that the person called a "distributing agent" was not an agent, 
 but was a purchaser of the goods of defendant. 
 
 We think the record fairly discloses that the Massachusetts corpora- 
 tion was doing business in this state, and that it was done through the 
 agency of Mr. Baker, its traveling agent, and that the case comes 
 within the provisions of the statute. There can be no doubt of the 
 right of this corporation to do business in this state, and of its right to 
 sue its debtors in the courts of this state. When it undertakes to do 
 business here, it must do so in compliance with our laws, which pro- 
 vide for the bringing of suits and the method of service. Vorheis v. 
 People's Mut. Ben. Soc. , 86 Mich. 31 ; Shafer Iron Co. v. Iron Cir- 
 cuit Judge, 88 Mich. 464; Turner v. Tunnel Co., 102 Mich. 574. 
 
 We think the service of process was good. The writ will issue as 
 prayed. 
 
 The other justices concurred. 
 
 Note. See, 1894, Foster v. Betcher Lumber Co., 5 S. D. 57, 23 L. R. A. 
 490, note; 1895, Florsheim, etc., Dry Goods Co. v. Lester, 60 Ark. 120, 46 St. 
 Rep. 162; 1896, Cornm. Bank v. Sherman, 28 Ore. 573, 52 Am. St. Rep. 811 ; 
 1898, Crook v. Girard Iron Co., 87 Md. 138, 67 Am. St. Rep 325; 1898, Conn. 
 Mut. L. Ins. Co. v. Spratley, 172 U. S. 602; 1898, Mearshon v. Pottsville L. 
 Co., 187 Pa. St. 12, 67 Am. St. Rep. 560; 1899, Wall v. Ches. & O. R. Co., 95 
 Fed. Rep. 398; 1899, In re La Bourgogne, 79 L. T. (N. S.) 331. 
 
 But see, 1895, State v. Bristol Sav. Bk., 108 Ala. 3, 54 Am. St. Rep. 141. 
 
 Sec. 327. Pleading. 
 
 Corporation plaintiff need not allege corporate existence. 
 EXCHANGE NATIONAL BANK v. L. J. CAPPS ET AL. 1 
 
 1891. IN THE SUPREME COURT OF NEBRASKA. 32 Nebraska Rep. 
 242-245, 29 Am. St. Rep. 433. 
 
 [Suit by the bank upon a promissory note made payable to the order 
 of the Exchange National Bank. The petition read simply that 
 "Plaintiff complains," etc., without alleging it was a corporation, or 
 stating under what law it was organized. A demurrer to the petition 
 was sustained, and this is the error assigned.] 
 
 1 Statement abridged.
 
 3 2 7 POWER TO SUE AND BE SUED. I 123 
 
 MAXWELL, J. * * In Platte Valley Bank v. Harding, i 
 Neb. 461, it was held that the maker of a note payable to a bank, in 
 an action on the note, can not raise the question of the bank's incor- 
 poration. In Angell & Ames on Corporations, section 632, it is 
 said: "It is, however, generally admitted that a corporation may de- 
 clare in its corporate name, without setting forth in the declaration 
 the act of incorporation or averring that it is a corporation if the act 
 be private." 
 
 At common law it is not necessary to set forth in the declaration 
 the act of incorporation when an action is brought in the corporate 
 name. The code was designed to simplify procedure. There is no 
 requirement of the statute that the act of incorporation shall be 
 averred, and it seems to be sufficient to bring the action in the cor- 
 porate name. 
 
 In Stanley v. R. & D. R. Co., 89 N. C. 331, it is said: "It is dif- 
 ficult to assign any sufficient reason why a corporation suing or sued 
 should be designated by any further description than its corporate 
 name, which does not apply with equal force to a natural person, the 
 only purpose in either case being to point out the party to the action. 
 The appearance and plea to the merits or answer is a concession of 
 the sufficiency of the designation of the person, natural or artificial, 
 and, if intended to be disputed, it should be under the present prac- 
 tice by answer." 
 
 So under the section of the Iowa code in regard to actions on writ- 
 ten instruments, when "suit may be brought by or against any of the 
 parties thereto, by the same name and description as those by which 
 they are designated in such instrument." (Harris Mfg. Co. v. Marsh, 
 49 Iowa 11,4 Am. & Eng. Ency. of Law 285.) TJiere is no require- 
 ment of the code that authorizes a court to insist upon setting out the 
 act of incorporation in an action brought in the corporate name. The 
 common law prevails in this state in all matters where there is no 
 statute to the contrary. The code has not changed the common law 
 in this respect. It was, therefore, unnecessary to aver the act of in- 
 corporation. 
 
 The judgment of the district court is reversed, and the cause re- 
 manded for further proceedings. 
 
 Reversed and remanded. 
 
 The other judges concur. 
 
 Note. See, also, 1860, Central Bank v. Knowlton, 12 Wis. 624, 78 Am. Dec. 
 769; 1867, Stein v. Ind. Bldg. & L. Assn., 18 Ind. 237, 81 Am. Dec. 353; 1894, 
 Norfolk, etc., R. Co. v. Hoover, 79 Md. 253, 47 Am. St. Rep. 392; 1896, Shirk 
 v. Citizens' Enterprize Co., 15 Ind. App. 329,57 Am. St. Rep. 230; 1897, 
 Holden v. Great W. El. Co., 69 Minn. 527, 65 Am. St. Rep. 585; 1898, Emer- 
 son v. Nimocks, 88 Fed. Rep. 280; 1898, Parker v. Carolina Sav Bk., 53 S. C. 
 583, 69 Am. St. Rep. 888; 1899, Wood v. Friendship Lodge, 20 Ky. L. K>|>. 
 2002, 50 S. \V. Rep. 836; 1899, Moynihan v. Drobaz, 124 Cal. 212, 71 Am. St. 
 Rep. 46; 1901, Brady v. National Supply Co., 64 O. S. 267, 83 Am. St. Rep. 
 753. 60 N. E. 218. 
 
 See following case, contra.
 
 1 124 HOLLOWAY V. THE MEMPHIS PACIFIC R. R. CO. 328 
 
 Sec. 328. Same. Contra, must allege corporate existence. 
 
 R. W. HOLLOWAY v. THE MEMPHIS, EL PASO AND PACIFIC R. 
 
 R. CO. 1 
 
 1859. IN THE SUPREME COURT OF TEXAS. 23 Texas Rep. 465-468, 
 
 76 Am. Dec,. 68. 
 
 [Suit by the corporation (without alleging its corporate existence) 
 against Holloway upon a written contract of subscription to the stock 
 of the railroad company. The defendant demurred, the court over- 
 ruled the demurrer, and this is the error assigned.] 
 
 WHEELER, C. J. It is the settled rule of the English law, and it 
 is the rule in New York, Virginia and some of the other states, that 
 where a body politic institutes legal proceedings, either on a contract 
 or to recover property, it must, at the trial, under the general issue, 
 prove the fact of incorporation. (Angell & Ames on Corp., 632, 
 4th edit., and cases cited.) In the case of The Bank v. Simonton, 
 
 2 Texas Rep. 531, this court held that the plaintiffs must aver and 
 prove that they were a body corporate, duly constituted by competent 
 authority, to enable them to maintain this action. That was the case 
 of a foreign corporation. But the principle of the decision applies 
 equally to a domestic corporation, created by private act, of which the 
 court can not judicially take notice. 
 
 In some of the states a different rule obtains, and it is held that, if 
 in a suit by a corporation the defendant plead the general issue, it is 
 an admission of the corporate existence of the plaintiffs, on the prin- 
 ciple, it seems, th#t by pleading to the merits, the defendant admits 
 the capacity of the plaintiffs to sue. (Angell & Ames on Corp.. 
 633.) Those courts, however, make an exception in the case of 
 foreign corporations. (Angell & Ames on Corp., 633.) But the 
 reason for a distinction in this respect is not very clearly discoverable. 
 A foreign corporation is required to prove its corporate legal exist- 
 ence, because the court can not judicially know the legal being of 
 such a corporation. The court can not take notice, ex afficio, of the 
 foreign law, by which it is created a body corporate. The same rea- 
 son applies to a domestic corporation, created by a private act. The 
 court can not judicially take notice of a private statute, and there 
 would seem to be the same reason for requiring the proof to be made 
 in the one case as in the other. 
 
 The English rule seems most in consonance with principle. The 
 merely naming themselves a company shows the fact of an associa- 
 tion acting under a particular name, but not that they have the legal 
 capacity to act, and prosecute suits by that name; nor can the court 
 know that they have such capacity, unless they are constituted a body 
 corporate by public law, or are recognized as such by a law, of which 
 the court can judicially take notice. It would seem, therefore, on 
 
 1 Statement abridged ; arguments omitted.
 
 329 POWER TO SUE AND BE SUED. 112$ 
 
 principle, that a private domestic corporation, equally with a foreign 
 corporation, must aver and prove the fact of incorporation. 
 
 The question raised by the demurrer is, whether it was necessary 
 for the plaintiffs to aver that they are a corporation. In The Bank v. 
 Simonton, it was held to be a necessary averment to enable the plaintiffs 
 to maintain the action. We are of opinion that the present is not dis- 
 tinguishable from that case in principle, and that the petition want- 
 ing the averment is insufficient. 
 
 It is insisted that the defendant, by contracting with the plaintiffs 
 in their corporate name, has admitted that they are duly constituted 
 a body corporate under that name. This question was also consid- 
 ered in the case of The Bank v. Simonton, in reference to the authori- 
 ties now cited by the plaintiffs' counsel, and the contrary was decided. 
 The mere fact that in a contract with the company the defendant has 
 designated it by a name which is appropriate to a corporate body, 
 does not admit its corporate legal existence, unless it be distinctly 
 stated in the contract that the company is an incorporated company. 
 (7 Wend. 540; 8 Wend. 480; 15 Wend. 316.) It admits only the 
 existence of an association acting under that name. 
 
 If it be an inconvenience and hardship to require a private corpora- 
 tion to prove its corporate existence in actions brought by it, it can 
 easily be obviated by an act of the legislature declaring the act of 
 incorporation a public law, or dispensing with the necessity of plead- 
 ing the act in suits by the corporation. 
 
 We are of opinion that the court erred in overruling the exceptions 
 to the petition, and that the judgment be reversed and the cause re- 
 manded for further proceedings. 
 
 Reversed and remanded. 
 
 Note. See, 1897, Citizens' Bank v. Corkinge, 9 S. D. 614, 62 Am. St. Rep. 
 891; 1899, Pryse v. Three Forks, etc., Bank, 20 Ky. L. Rep. 1057, 48 S. W. 
 Rep. 415. 
 
 See preceding case, contra. 
 
 Sec. 329. Pleading, plaintiff need not allege that defendant is a 
 corporation, if name implies it is not a natural person. 
 
 WOOLF v. THE CITY STEAMBOAT COMPANY. 
 
 1849. IN THE ENGLISH COURT OF COMMON PLEAS. 7 Man., Gr. 
 & S. (62 Eng. C. L.) *io3, *io4. 
 
 Assumpsit. The declaration commenced thus: "The plaintiff 
 complains of The City Steamboat Company, who have been sum- 
 moned to answer the plaintiff," etc. 
 
 Special demurrer assigning for causes, that the names of the de- 
 fendants were not stated, that it did not appear whether they were 
 sued as a corporation or a company completely registered, or by virtue 
 of what act of Parliament they were entitled to be sued by the name 
 of a company.
 
 I 126 STATE V. CHICAGO, MILWAUKEE & ST. PAUL R. CO. 330 
 
 Hugh Hill, in support of the demurrer. The question in this case 
 is, whether the plaintiff may, in his declaration, describe the defend- 
 ants as a company, without showing whether or not they are a corpo- 
 ration or a registered company. In the doubtful state of the allegation 
 the defendants could not safely plead nul tie! corporation. (Cress- 
 well, J. Is not this the usual form of declaring against a corpora- 
 tion? It may be that the defendants are a chartered company ; how 
 does it appear that they are not?) In Thompson v. The Universal 
 Salvage Company, i Exch. 694 which was an action against a regis- 
 tered company upon a promissory note the declaration stated that 
 the company had been duly registered under the statute 7 & 8 Viet., 
 c. no. (Maule, J. If the defendants in fact are a corporation, the 
 declaration is correct; if they are not, they may traverse it.) In The 
 Queen v. West, I Q. B. 826, a coroner's inquisition stating that cer- 
 tain goods and chattels were the goods and chattels of the proprietors 
 of the Hull and Selby Railway, was held bad, because it did not show 
 that there was any corporation so intituled. (Cresswell, J. That 
 case would have been more to the purpose if the defendants here had 
 been described as "the proprietors of the City Steamboats.") Since 
 the statutes creating these registered corporations, it is essential that 
 they should in all proceedings be described according to the truth. 
 (Cresswell, J. How can the mode of describing them in pleading 
 be affected by the statutes?) It is important that the true character 
 in which a party sues or is sued should appear upon the record. 
 
 Hawkins, contra, was not called upon. 
 
 MAULE, J. The mode of pleading is governed either by positive 
 rules or by a known course of precedents. There is no positive rule 
 that I am aware of which requires such a mode of description as the 
 defendant's counsel insists upon in this case, nor is the description 
 which is given at all out of the usual form ; it impliedly amounts to 
 an allegation that the defendants are a corporate body. I think the 
 plaintiff is entitled to judgment. 
 
 The rest of the court concurring. Judgment for the plaintiff. 
 
 Note. See to same effect, notes 29 Am. Dec. 375; 76 Am. Dec. 68; 35 Am. 
 St. Eep. 291 ; 1893, Lake Erie & W. R. Co. v. Griffin, 8 Ind. App. 47, 52 Am. 
 St. Rep. 463; 1897, Holden v. Great W. El. Co., 69 Minn. 527, 65 Am. St. Rep. 
 585; 1899, Moynihan v. Drobaz, 124 Cal. 212, 71 Am. St. Rep. 46. 
 
 See following case, contra. 
 
 Sec. 380. Same. Plaintiff suing a corporation should allege it is 
 such. 
 
 STATE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. 1 
 
 1893. IN THE SUPREME COURT OF SOUTH DAKOTA. 4 S. D. 
 Rep. 261-264, 46 Am. St. Rep. 783. 
 
 CORSON, J. This was an action by the state to enjoin the defend- 
 ant from continuing an alleged nuisance. The defendant demurred 
 
 1 Statement, except as in the opinion of the court, and part of the opinion 
 omitted.
 
 330 POWER TO SUE AND BE SUED. II2/ 
 
 to the complaint on the ground that it did not state facts sufficient to 
 constitute a cause of action, and the same was sustained by the court. 
 From the order sustaining the demurrer the plaintiff appeals. The 
 defendant specifies as the particular ground of objection, in the brief 
 filed in this court, that there is no allegation in the complaint that the 
 defendant is a corporation. The only indication of the character in 
 which the defendant is sued is in the title. The learned counsel for 
 the respondent contend that the defendant is sued by a name indicat- 
 ing that it is not a natural person, but a company of some kind, and 
 that no facts are stated to show that it is an artificial being, capable 
 of being sued. 
 
 It is true that by section 2908, Comp. Laws, it is provided that "in 
 all civil actions brought by or against a corporation it shall not be 
 necessary to prove on the trial of the cause the existence of such cor- 
 poration, unless the defendant shall, in the answer, expressly aver that 
 the plaintiff or defendant is not a corporation." But an allegation 
 that the defendant is a corporation is, we think, still necessary, and 
 the language of the section presupposes that the defendant is sued as 
 a corporation. In what manner can, a court be advised that the de- 
 fendant is sued as a corporation, unless it is so alleged in the com- 
 plaint? In the recent case of People v. Cent. Pac. R. Co., 83 Cal. 
 393' 2 3 Pac. Rep. 303 (decided in 1890), the supreme court of that 
 state, in passing upon this question, says: "The defendant is sued by 
 a name indicating that it is not a natural person, but a company of 
 some kind ; but there is no averment of the fact of incorporation, or 
 of any fact to show that it, is an artificial being, capable of being sued. 
 Nor, if incorporated, is there any averment to show where, or under 
 what law, so that the court may determine where the jurisdiction of 
 its person lies. An averment of defendant's corporate existence is 
 necessary in every count of a complaint against a corporation. Loup 
 v. Railroad Co., 63 Cal. 97." Mechanics' Banking Association v. 
 Spring Valley Shot and Lead Co., 13 How. Pr. 227. Judge Bliss, 
 in his work on Code Pleading (section 258), says: "But a corporation 
 is an artificial personality, not presumed to exist even, and the phrase 
 may stand for such personality, or for a joint stock company, or for a 
 partnership, or for a private person, or for nothing at all. The allega- 
 tion, then, that the plaintiff is a corporation, even if permitted to be 
 made in general terms, would seem to be essential to show its right to 
 bring the suit." And in section 260 he says: "In regard to actions 
 against corporations, the same general rule should prevail." We are 
 of the opinion that the rule laid down by Judge Bliss and the supreme 
 court of California is the safer and better rule, though there are courts 
 holding a contrary rule. In the case of Express Co. v. Harris, 120 
 Ind. 73, 16 Am St. Rep. 315, 21 N. E. Rep. 340, decided by the su- 
 preme court of Indiana in 1889, that court says: ' The name of the 
 defendant (Adams Express Company) imports that it is a corporation, 
 and it was, therefore, not necessary to specifically aver that it was a 
 corporation." But, with great respect for that court, we can not 
 agree with its conclusions. As was said in the California case, the
 
 I 128 BANK OF JAMAICA V. JEFFERSON. 331 
 
 name indicates "that it is not a natural person, but a company of 
 some kind," but whether a corporation or an unincorporated associ- 
 ation does not appear. We are not aware of any principle of law 
 that will authorize a court to presume that it is a corporation any more 
 than it would presume that it was an unincorporated association. A 
 similar view as to the necessity of alleging in the complaint that the 
 defendant is a corporation was taken by the supreme court of North 
 Carolina in Stanley v. Raih'oad Co., 89 N. C. 331. * * * 
 Affirmed. . 
 
 Note. See, 1892, Miller v. Pine M. Co., 2 Idaho 1206, 35 Am. St. Rep. 289 n. 
 291, 41 Am. & Eng. Corp. Cas., p. 1, and note p. 3. 
 See preceding case, contra. 
 
 Sec. 331. Pleading general issue at law does not raise question 
 of corporate existence; the rule is otherwise in equity. 
 
 BANK OF JAMAICA v. JEFFERSON. 1 
 
 1893. IN THE SUPREME COURT OF TENNESSEE. 92 Tenn. Rep. 
 537-542, 36 Am. St. Rep. 100. 
 
 [Suit in equity by the bank, alleging itself to be a corporation un- 
 der the laws of New York, to recover upon a note.] 
 
 WILKES, J. * * * Again it is assigned as error that complain- 
 ant sues as a foreign corporation, and it is insisted that no recovery 
 can be had unless that allegation is sustained by proof, and that no 
 proof was offered on this point in the court below. 
 
 On the other hand, it is insisted that this allegation of the bill is not 
 denied in the answer, that the character in which plaintiff sues is not 
 put in issue by the answer, and that, under a general denial, or the 
 general issue, proof of the character in which the suit is brought is 
 not necessary to be made. 
 
 This latter contention is unquestionably correct in actions at law, in 
 which actions, if the plaintiff alleges that it is a corporation, even 
 though it be a foreign corporation, that fact need not be proven unless 
 it is put in issue by a specific denial, and the general issue would not 
 be sufficient, and pleading to the merits would be an admission of the 
 character in which the plaintiff sues. 2 Beach on Private Corpora- 
 tions, 867-869; 4 Am. & Eng. Enc. of Law, 285-6, and notes; 
 Union Cement Co. v. Noble, 15 Fed. Rep. 502 ; Harrison v. Mar- 
 tinsville Railroad Co., 16 Ind. 505, 79 Am. Dec. 447; Orono v. 
 Wedgewood, 44 Me. 49, 69 Am. Dec. 81 ; West Winstead Asso. v. 
 Ford, 27 Conn. 282, 71 Am. Dec. 66; Marble Co. v. Black, 89 
 Tenn. 118, 120, 121. 
 
 We do not think the cases of Jones v. State, 5 Sneed 346, 348; 
 Owen v. State, 5 Sneed 493, 495, and Augusta Mfg. Co. v. Vertrees, 
 4 Lea 75, 78, are in conflict with this ruling. The cases of Jones v. 
 
 1 Statement abridged, and part of opinion and other points omitted.
 
 $ 332 POWER TO SUE AND BE SUED. I 129 
 
 The State and Owen v. The State are criminal prosecutions, in which 
 greater strictness of proof is required, and the case of Augusta Mfg. 
 Co. v. Vertrees, was an action of ejectment, in which by statute (M. 
 & V. Comp., 3963) it is provided that under the general plea of not 
 guilty the defendant may avail himself of all legal defenses. 
 
 The rule is different in chancery cases. At law every fact alleged 
 in the declaration, and not denied in the plea, is taken as true. Code, 
 2910; M. & V., 3620. But in chancery every allegation of fact 
 not admitted, whether denied or not, must be proved, the failure to 
 admit or deny being equivalent to a denial. Hill v . Walker, 6 Cold. 
 429, 98 Am. Dec. 465; Hardeman v. Burge, 10 Yer. 202 ; Smith v. 
 St. Louis Ins. Co., 2 Tenn. Ch. 602; Gibson's Suits in Chancery, 
 section 457. 
 
 The fact that complainant is a foreign corporation is alleged in the 
 bill, and it is a fact material to the right to recover. It is not ad- 
 mitted in the answer, and there is a general denial of all matters not 
 admitted. It should, therefore, have been proven, and, for the fail- 
 ure to prove this, we are constrained to reverse the decree of the court 
 below, and remand the cause for proof of the corporation and for 
 further proceedings under the statute. Code, 3170. 
 
 Note. See note, 41 Am. & Eng. Corp. Caa., p. 3; 1861, Harrison v. Rail- 
 road Co., 16 Ind. 505, 79 Am. Dec. 447, note 449; 1899, Wood v. Friendship 
 Lodge, 20 Ky. L. Rep. 2002, 50 S. W. Rep. 836 ; 1899, Ludington v. Luding- 
 ton, 119 Mich. 480, 78 N. W. Rep. 558; 1899, Moynihan v. Drobaz, 124 Cal. 
 212, 71 Am. St. Rep. 46. 
 
 Sec. 332. Same. Contra, under general issue corporate exist- 
 ence must be proved. 
 
 SUTHERLAND, J., IN BANK OF UTICA v. SMALLEY. 
 
 1824. IN THE SUPREME COURT OF NEW YORK. 2 Cowen (N. 
 Y.) Rep. 770, on 778, 14 Am. Dec. 526. 
 
 [Suit by the bank in its corporate name to recover of defendants as 
 indorsers upon a note payable at the bank.] 
 
 It is contended that the judge erred in deciding that the plaintiffs 
 were not bound to prove themselves a corporation upon the general 
 issue pleaded. 
 
 This objection is well taken. When a corporation sues they need 
 not sef forth, by averment, in the declaration, how they were incor- 
 porated, but upon the general issue pleaded they must prove that they 
 are a corporation. (Kyd on Corp., 292; Norris v. Staps, Hob. 211, 
 Jackson, ex dcm. Trustees of Union Academy, v. Plumbe, 8 Johns. 
 378 ; Dutchess Cotton Manufacturing Company v. Davis, 14 Johns. 
 238 on 245, opinion of Thompson, Ch. J. ; Bank of Auburn v. Weed, 
 19 Johns. 300.) 
 
 Note. 1832, Welland Canal Co. v. Hathaway, 8 Wend. 480, 24 Am. Dec. 51, 
 note 58; 1836, Harris v. Muskingum Mfg. Co., 4 Blackf. 267, 29 Am. Dec. 372 
 and note.
 
 1130 DAVIS V. NEBRASKA NAT'L BANK. 333 
 
 Sec. 383. Pleading general denial under the code. 
 
 S. K. DAVIS ET AL. v. NEBRASKA NATIONAL BANK OF OMAHA. 
 
 1897. IN THE SUPREME COURT OF NEBRASKA. 51 N. E. Rep. 
 401-402, 6 Am. & Eng. Corp. Cas. (N. S.) 593. 
 
 IRVINE, C. The Nebraska National Bank of Omaha sued the 
 plaintiffs in error on a promissory note alleged by the petition to have 
 been made by the defendants below to the order of the Nebraska Na- 
 tional Bank of Beatrice, and by the latter bank indorsed and trans- 
 ferred to the plaintiff. The plaintiff recovered judgment for the 
 amount of the note. The petition alleged that the plaintiff was a 
 corporation organized under the laws of the United States. The 
 answer specifically denied plaintiff's corporate existence. No evi- 
 dence was introduced on the subject. The instructions of the court 
 entirely ignored the issue, and the court refused a peremptory instruc- 
 tion to find for the defendants, as well as a special instruction sub- 
 mitting to the jury for determination the corporate existence of the 
 plaintiff. 
 
 It will be observed that there existed no privity of contract between 
 the defendants and the plaintiff bank whereby the defendants were es- 
 topped to deny the corporate capacity of the plaintiff, nor are any other 
 grounds of estoppel pleaded. The defense interposed was, therefore, 
 a valid defense in this action. It has been several times held that a 
 general denial does not present the issue, but that it must be raised by 
 a specific denial in the nature of a plea in abatement. Insurance Co. 
 v. Robinson, 8 Neb. 452; Dietrichs v. Railroad Co., 13 Neb. 43, 13 
 N. W. Rep. 3; Herron v. Cole Bros., 25 Neb. 692, 41 N. W. Rep. 
 765; Swift & Co. v. Crawford, 34 Neb. 450, 51 N. W. Rep. 1034. 
 But a special denial of the character indicated is sufficient to present 
 the defense (Sunapee v. Eastman, 32 N. H. 470; Greenwood v. Rail- 
 road Co., 10 Gray 375)* an d such a plea casts the burden of proof of 
 corporate existence upon the plaintiff (see cases cited in 5 Enc. PL & 
 Prac. 82). At the common law there existed some controversy as to 
 whether nul tiel corporation should be pleaded in abatement or 
 whether it might be pleaded in bar. The Nebraska cases cited in- 
 timate that this court has considered it to be in the nature of a plea in 
 abatement. But this is immaterial, because under our code defenses 
 of both characters may be presented in one answer. Hurlburt v. 
 Palmer, 39 Neb. 158, 57 N. W. Rep. 1019; Association v. Peter- 
 son, 41 Neb. 897, 60 N. W. Rep. 373; Herbert v. Wortendyke 
 (Neb.), 68 N. W. Rep. 350. It is probable, as suggested in the 
 bank's brief, that this and other defenses were purely technical and 
 devoid of merit. The plea was, however, one of which the defend- 
 ants might legally avail themselves. The bank was notified by the 
 special plea that it would be called upon to establish its corporate ex- 
 istence. It entirely failed to do so, and the judgment must for that 
 reason be reversed. 
 
 Reversed and remanded.
 
 334 POWER TO SUE AND BE SUED. I 13 1 
 
 Sec. 334. Proof of corporate existence special charter. 
 
 UNITED STATES BANK v. STEARNS. 1 
 1836. IN THE SUPREME COURT OF NEW YORK. 15 Wend. (N. 
 
 Y.) 
 
 [Assumpsit by the bank to recover overpaid money.] 
 
 The cashier of the Buffalo Branch Bank testified that the plaintiffs 
 had a banking house in Philadelphia, where they had carried on bank- 
 ing business for many years, under their charter. The defendant in- 
 sisted that the plaintiffs were bound to prove themselves a corporation 
 by the production of their charter. The judge decided that the char- 
 ter need not be produced, because the act of incorporation of the 
 Bank of the United States was a public act, which, for certain pur- 
 poses, constituted the bank the financial agent of the general govern- 
 ment, and gave the United States an interest in the stock, and because 
 the presentation of the checks and the receipt of the money was an 
 implied admission of the existence of the corporation. The jury 
 found for the plaintiffs. The defendant asks for a new trial. 
 
 SAVAGE, C. J. * * * The least proof which has been held 
 sufficient is the production of an exemplification of the act incorpo- 
 rating the plaintiffs, and evidence of user, under their charter, i 
 Wendell 555. In one case it was held that the act of incorporation 
 might be read from the statute book, printed by the printer to the 
 state. 9 Covven 2056. The evidence of user in this case was 
 enough, but there was no evidence at all of the act of incorporation. 
 No exemplification was produced, nor even the act read or produced 
 in the statute book. One or the other is indispensable when the suit 
 is brought by corporations created by our own statutes But when a 
 suit is brought by a foreign corporation, as the plaintiffs must be con- 
 sidered in this court, I apprehend an exemplification should be pro- 
 duced, if required. The courts of the state of New York have no 
 judicial knowledge of acts of congress creating corporations. When 
 they are necessary, as evidence, they must be proved as the acts of 
 our sister states must be proved. In my opinion the proof of the ex-- 
 istence of the corporation was insufficient. The transaction of busi- 
 ness by the defendant with the plaintiffs was probably an admission 
 that they had capacity to transact business as a company, but not that 
 they were an incorporated company. Many commercial companies 
 not incorporated do business by officers and agents, and are capable 
 of suing, but not otherwise than in their individual capacities. * * * 
 
 New trial granted. 
 
 N"te. See next case, and Packard v. Old Colony R. Co., 168 Mass. 92; 
 supra, 142; also, President, Directors, etc., of Bank of U. S. v. Dandridge, 
 12 Wheat (U. S.), 64; supra, 237. 
 
 1 Statement abridged ; only part of opinion given.
 
 I 132 BALTIMORE, ETC., R. R. CO. V. BAPTIST CHURCH. 335 
 
 Sec. 385. Proof of corporate existence under general incorporation 
 laws. 
 
 BALTIMORE AND POTOMAC R. R. CO. v. FIFTH BAPTIST CHURCH. 1 
 
 1891. IN THE SUPREME COURT OF THE UNITED STATES. 137 U. 
 
 S. Rep. 568-576. 
 
 [Action on the case by the church against the railroad company for 
 damages for maintaining a continuous nuisance by noise and smoke to 
 plaintiff's enjoyment of its property. Judgment below for the church. ] 
 
 MR. JUSTICE GRAY. * * * The declaration was headed "The 
 Fifth Baptist Church of Washington, D. C., by its Trustees, v. The 
 Baltimore and Potomac Railroad Company," and alleged that the 
 plaintiff was a body corporate in the District of Columbia, under 
 and by virtue of the general corporation act of May 5, 1870, ch. 80, 
 2; 16 Stat. 99, 100 ; Rev. Stat. D. C., 533-544. 
 
 The defendant pleaded in bar: i. "That the said plaintiff was not 
 at the time of commencement of this suit, and never was, a body cor- 
 porate or politic, as set forth and alleged in and by said declaration." 
 2. Not guilty. The plaintiff joined issue on these pleas. 
 
 The plaintiff, upon the issue presented by the first plea, and to 
 prove its user of corporate rights, offered the following evidence, 
 which was admitted against the defendant's objection and exception: 
 
 i. The original of the following certificate of incorporation, signed 
 and sealed by the six persons named therein: 
 
 "We, C. C. Meador, George M. Kendall, John N. Henderson, 
 Samuel M. Yeatman, James C. Deatley and Samuel S. Taylor, of 
 Washington City, in the District of Columbia, do hereby certify 
 that we have been duly elected 'Trustees of the Fifth Baptist Church 
 of Washington City, D. C.' (commonly called 'the Island Baptist 
 Church'), and that this certificate is made, signed and sealed for the 
 purpose of obtaining corporate rights and privileges for the said 'Fifth 
 Baptist Church,' a religious society worshipping at present in their 
 church edifice on D street, south, between Four-and-a-half and Sixth 
 streets, in said City of Washington, under the provisions of an act of 
 congress approved May 5, 1870, entitled 'An act to provide for the 
 creation of corporations in the District of Columbia by general law.' 
 
 "In testimony whereof, we hereunto set our hands and affix our seals 
 this twenty-fourth day of August, in the year of our Lord one thou- 
 sand eight hundred and seventy-one." 
 
 Annexed to this paper were a notary public's certificate of its 
 acknowledgment on the same day by these six persons, an affidavit of 
 one of them, dated May i, 1885, that the statements in the certificate 
 of incorporation were true, a memorandum of the recorder that the 
 paper was recorded September 5, 1871, and another memorandum 
 that it was recorded May i, 1885. 
 
 1 Statement abridged. Only the part of the opinion relating to proof of cor- 
 porate existence is given.
 
 335 POWER TO SUE AND BE SUED. 1133 
 
 2. A recorder's copy of the certificate of incorporation, acknowl- 
 edgment and affidavit, as recorded May i, 1885. 
 
 3. That in the year 1871 it became necessary for the plaintiff, in 
 order to complete its church edifice, to borrow money upon a mort- 
 gage of its land, and that to promote this object, and upon the recom- 
 mendation of its finance committee, a special meeting was called, and 
 was held on July 2, 1871, at which the church (which had been known 
 as the Island Baptist Church) resolved to become incorporated under 
 the name stated in the above certificate of incorporation, and elected 
 as its trustees the six persons named therein, and fixed their term of 
 office at three years, and thereupon that certificate was prepared and 
 signed by the trustees and recorded. 
 
 4. Three deeds, respectively dated September 26, 1871, Septem- 
 ber 18, 1872, and November 10, 1874, from the six persons named 
 in the above certificate of incorporation, describing themselves as 
 "trustees of the Fifth Baptist Church of Washington City, D. C.," 
 reciting its incorporation under the general corporation act, and its 
 resolution authorizing them to execute the deeds, and conveying the 
 church building and land, in trust and by way of mortgage, to secure 
 the payment of various sums of money. 
 
 5. Two deeds of release of the same building and land, dated No- 
 vember 9, 1874, from the grantees to the grantors in the first two of 
 the trust deeds aforesaid. 
 
 6. The record of the judgment in the former action between these 
 parties. 
 
 The plaintiff also introduced, without objection, evidence tending 
 to show "that its present church edifice was begun about the year 
 1866, and was completed at a cost of about $22,000, exclusive of the 
 ground ; that the property is worth about $30,000, and has been occu- 
 pied and used by the plaintiff's society or congregation since the year 
 1867 as its place of religious worship, and that during the period cov- 
 ered by this suit its actual church membership, consisting, as in all 
 Baptist churches, of persons who have been baptized after a pro- 
 fession of faith, numbered about four hundred persons, exclusive of 
 the persons attending services there as members of the congrega- 
 tion who were not members of the church." 
 
 It may be that, as held by the court below in 4 Mackey 43, at a 
 former stage of one of these cases, the original certificate of incor- 
 poration, not stating the date of election or the term of office of the 
 trustees, nor supported by affidavit, as required by statute, was not 
 sufficient of itself to prove the plaintiff's existence as a corporation, 
 either de jure or de facto; and that the adding of an affidavit to the 
 certificate, and recording it anew, since the commencement of these 
 actions, could not avail the plaintiff. 
 
 But the certificate of incorporation, as originally drawn up, taken 
 in connection with the other evidence now introduced, and especially 
 the record of the former action in which this plaintiff as a corporation 
 recovered judgment against this defendant without any objection being 
 taken to the plaintiff's capacity to sue, is clearly competent and suf-
 
 I 134 SHUTE V. KEYSER. 336 
 
 ficient, as between these parties, to prove that the plaintiff had in good 
 faith attempted to legally organize as a corporation, and had long acted 
 as such, and was at least a corporation de facto, which is all that is 
 necessaiy to enable it to maintain an action against any one, other than 
 the state, who has contracted with the corporation, or who has done 
 it a wrong. Bank of United States v. Dandridge, 12 Wheat. 64, 72; 
 Conard v. Atlantic Ins. Co., i Pet. 386, 450; Chubb v. Upton. 95 
 U. S. 665; Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391 ; 
 Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315; Cincinnati, etc., 
 Railroad v. Danville & Vincennes Railroad, 75 111. 113; Stockton & 
 Linden Co. v. Stockton & Copperopolis Railroad, 45 Cal. 680. 
 
 It is objected that the evidence admitted, if sufficient to prove that 
 the plaintiff was a corporation, did not prove that it was the corpora- 
 tion which brought this action, because the evidence was that the cor- 
 porate name was "The Fifth Baptist Church of Washington, D. C.," 
 whereas the action, as stated in the declaration, was brought by u The 
 Fifth Baptist Church of Washington, D C., by its Trustees." 
 
 It may well be doubted whether the words "by its trustees," as 
 here used, are part of the name of the plaintiff. They may have been 
 inserted, like "by attorney" or "by next friend," to indicate by whose 
 agency, and not in whose behalf, the action is brought. By the gen- 
 eral corporation act, both the title in real estate, and the right to sue, 
 are vested in the trustees "by the name and style assumed as afore- 
 said," that is to say, in the name and behalf of the corporation. Act 
 of May 5, 1870, ch. 80, 2; 16 Star.., 99, 100; Rev. Stat. D. C., 
 
 53.4, 539, 54- 
 
 But if these words in the declaration can be taken as part of the 
 
 plaintiff's name, the most that is shown is a mistake in that name. 
 While nul tiel corporation, or that the plaintiff is not and never was 
 a corporation, is a good plea in bar, because it goes to show that the 
 plaintiff can never maintain any action whatever; yet misnomer, or 
 mere mistake in the name of a corporation plaintiff, which does not 
 affect its capacity to sue in the right name is pleadable in abatement 
 only, and is waived by pleading to the merits. Bro. Ab. Misnomer, 
 73; Society for Propagating the Gospel v. Pawlet, 4 Pet. 480, 501 ; 
 Christian Society v. Macomber, 3 Met. 235, 237; Gould PL, ch. 5, 
 79. * * * 
 
 Affirmed. 
 
 Note. See note preceding case. 
 
 Sec. 336. Power to confess judgment. 
 
 SHUTE v. KEYSER. 
 
 1892. IN THE ARIZONA SUPREME COURT. 37 Am. & Eng. Corp. 
 
 Cas. 6163. 
 
 KIBBEY, J. * * * Appellants very earnestly contend that a corpora- 
 tion has no power to confess a valid judgment; that, therefore, the pre- 
 tended judgment against the Old Dominion Copper Mining Company
 
 336 POWER TO SUE AND BE SUED. I 135 
 
 is void, and plaintiff's title thereunder, and, consequently, his cause of 
 action in this case must fail. Counsel do not cite us a case wherein the 
 power of the corporation to confess a judgment is denied. We do not 
 know, and are not informed by the record what were the powers of 
 the Old Dominion Copper Mining Company. It was a corporation 
 organized under the laws of the state of New York, whether by special 
 charter or under general incorporation laws does not appear. That 
 it is a private corporation fairly appears, for it is hardly conceivable 
 that a public corporation, organized under the laws of New York, 
 should be engaged in business, in Arizona. It is admitted by the de- 
 murrer that it was engaged in transacting business in Arizona, neces- 
 sarily, then, entering into contracts. 
 
 A domestic private corporation has the power to sue, is liable to be 
 sued, and may appear in court and defend when it is sued; may, we 
 suppose, of course, suffer default and judgment hereby ; and we see 
 no reason, in absence of proof to the contrary, to presume that the 
 same attributes do not attach to a foreign private corporation. ' There 
 are attributes so universally incident to private corporations in modern 
 times that it would be totally at variance with the probabilities to pre- 
 sume otherwise. Indeed, it is said by the text writers that it is neces- 
 sarily implied that a corporation, from the mere fact of its incorpora- 
 tion, may sue and be sued. Field Corp., 360 ; Mor. Priv. Corp., 356. 
 Incident to the right to sue, and the liability to be sued, we think is 
 unquestionably the right to confess judgment. In no case to which 
 our attention has been called has the power of a corporation to con- 
 fess judgment been doubted or called in question. In 12 How. Pr. 
 , a case cited by appellant, a doubt of such power was not sug- 
 gested. Black, in his recent work on Judgments, discusses the power 
 of agents of a corporation to confess a judgment, but does not even 
 intimate that to confess a judgment is ultra vires of a corporation. 
 Indeed, while he does not in terms assert that power to exist, yet the 
 inference is necessary from his statement that the corporation is bound 
 by a confession of a judgment by its officer upon whom summons 
 might have been served in a contested action, i Black Judgm., 59 ; 
 and see Freem. Judgm., 545. Morawetz lays down the broad rule 
 that the managing agents of a corporation have authority to confess 
 judgment whenever they deem it to be to the interest of the corpora- 
 tion. Mor. Priv. Corp., 430. In Miller v. Bank of British Colum- 
 bia, 2 Ore. 291, wherein a judgment by confession against a corpora- 
 tion was under discussion, the question was whether the president had 
 virtute officii the power to confess for his principal ; that the confes- 
 sion was ultra -vires the corporation was not even suggested. In 
 McMurray v. St. Louis Oil Manufacturing Co., 33 Mo. 377, the ques- 
 tions were as to the power, virtute officii, of the president of a 
 corporation to confess judgment, the sufficiency of the statutory state- 
 ment required to accompany such confession, and the power of the 
 corporation to create a lien by such a judgment, the statute prohibit- 
 ing it from mortgaging their property or giving any lien thereon. In 
 Joliet, etc., Co. v. Ingalls, 23 111. App. 45, a judgment against a cor-
 
 1136 HORNE V. IVY. 337 
 
 poration by confession was under consideration. The question whether 
 the corporation had the power to confess a judgment was not sug- 
 gested. The matter considered was the authority of the particular 
 officer who did confess the judgment to do so. And so in Stokes v. 
 New Jersey Pottery Co., 46 N. J. Law 237, 6 Am. & Eng. Corp. 
 Cas. 240; Thew v. Porcelain Manufacturing Co., 5 S. C. 415 ; White 
 v. Crow, 17 Fed. Rep. 98. And in all these cases there was a direct 
 attack upon the judgment, and not a collateral one, as in this case. 
 We do not entertain a doubt of the general right of a private corpo- 
 ration to confess a judgment. * * * 
 Affirmed. 
 
 Note. See Stokes v. New Jersey Pottery Co., 46 N. J. Law 237, 6 A. & E. 
 Corp. Cas. 240, note 246; 1898 Solomon v. C. M. Schneider & Co., 56 Neb. 680, 
 77 N. W. Rep. 65; 1898, Chicago Tp. & T. Co. v. Chicago Nat'l Bank, 176 
 111. 224. 
 
 Sec. 337. What may be taken on execution. 
 
 See The Louisville, N. A. & C. Ry. Co. v. Boney, 117 Ind. 501, 
 infra, p. 1842. 
 
 ARTICLE VII. RIGHT TO HAVE AND USE A SEAL. 
 
 Sec. 338. i. Necessity of a seal, 
 (a) At common law. 
 
 HORNE v. IVY. 1 
 IN THE KING'S BENCH. 20 Car. 2 (1668), i Mod. 18. 
 
 Trespass for taking away a ship. The defendant justifies as serv- 
 ant under the patent whereby The Canary Company is incorporated, 
 and whereby it is granted, "That none but such and such should trade 
 thither, on pain of forfeiting their ships and goods," etc., and says, 
 that the defendant did trade thither, etc. The plaintiff demurs. 
 
 Pollexfen, for the plaintiff, contended that the defendant ought to 
 have shown the deed whereby he was authorized by the company to 
 seize the goods; though he agreed, that for ordinary employments 
 and services a corporation may appoint a servant without deed, as a 
 cook, a butler, etc. A corporation can not license a stranger to fell 
 trees without deed. Nor can they make a disseisor without deed, 
 nor deliver a letter of attorney without deed. 
 
 TWISDEN, Justice. For the first point, I think, they can not seize 
 without deed, no more than they can enter for a condition broken 
 without deed. 
 
 See note, 50 Am. St. R., p. 150. 
 
 1 Part of argument and opinion of Kelynge, C. J., omitted.
 
 339 RIGHT TO HAVE AND USE A SEAL. I 137 
 
 Sec. 339. Same. 
 
 See President, etc., of Bank of the United States v. Dandridge, 
 12 Wheat. (25 U. S.) 64, supra, p. 854. 
 
 See notes to following cases. 
 
 Sec. 340. Same. 
 
 (b) Now generally unnecessary, except where required 
 of a natural person also. 
 
 MUSCATINE WATER COMPANY, APPELLEE, v. MUSCATINE LUMBER 
 
 COMPANY. 1 
 
 1892. IN THE SUPREME COURT OF IOWA. 85 Iowa Rep. 112-119, 
 39 Am. St. Rep. 284. 
 
 [Action to recover damages for loss of a mill by fire alleged to be 
 due to the failure of the water company to extend its water system to 
 place where water could be had, in accordance with a contract entered 
 into between the lumber and the water company, whereby the latter 
 agreed to so extend its water system. Judgment for plaintiff, and de- 
 fendant appeals.] 
 
 ROBINSON, C. J. * * * The appellant contends that the con- 
 tract in suit is invalid for the reason that no seal of either corporation 
 is attached to it. Section 2112 of the code contains the following: 
 4 'The use of private seals in written contracts, except the seals of 
 corporations, is abolished." It is argued from this that the use of 
 private seals by corporations is governed by the rules of the common 
 law, and that such seals must be affixed to all contracts not covering 
 the scope of the ordinary, every-day functions of the corporations. 
 That is not the law of this state. On the contrary, it was said in 
 Merrick v. Plank Road Co., n Iowa 76, that "the doctrine is now 
 well settled that corporations of all kinds may be bound by contracts 
 not under their seal. They may make a binding contract in writing 
 without using the seal, and so they may be held liable on verbal con- 
 tracts ; and as they may make, so they may ratify and adopt as their 
 own, without the use of the seal, that which has been done by an- 
 other or an officer out of the usual line of his duties." In i Mora- 
 wetz on Private Corporations, section 338, this language is used: "It 
 is now a rule well settled throughout the United States that a corpo- 
 ration may make a contract without the use of a seal in all cases in 
 which this may be done by an individual." A corporation organized 
 under the laws of this state may have a common seal, but it is not 
 required to have one ; and it is a matter of common knowledge that 
 corporations in large numbers organize and do business in the state, 
 making contracts and conveying property, without using or having a 
 seal. There is nothing in this case to show any requirement on the 
 
 1 Only the part of opinion relating to seal is given. 
 72 WIL. CAS.
 
 1138 GARRETT V. BELMONT LAND COMPANY". 341 
 
 part of either party to the agreement in question that its contracts 
 should be under seal, nor that either had a seal. There is no pre- 
 sumption, in the absence of evidence to that effect, that the agreement 
 was invalid for want of a seal ; and no presumption of that kind is 
 raised by anything contained in the record. * * * 
 Affirmed. 
 
 Note. Seal is unnecessary, where not necessary in case of a natural person : 
 1813, Bank of Col. v. Patterson's Admr., 7 Cr. 299; 1823, Mott v. Hicks, 1 
 Cow. (N. Y. ) 513,13 Am. Dec. 550; 1825, The Banks v. Poitianx,3 Rand (Va.) 
 136, 15 Am. Dec. 706; 1825, Fitzhugh v. Bank of Shepherdsville, 3 T. B. Mon. 
 (Ky.) 126, 16 Am. Dec. 90; 1829, Barker v. Mechanics, etc.. Co., 3 Wend. (N. 
 Y.) 94, 20 Am. Dec. 664; 1831, Garrison v. Combs, 7 J. J. Marshall (Ky.) 84, 
 22 Am. Dec. 120; 1837, Everett v. United States, 6 Porter (Ala.) 166, 30 Am. 
 Dec. 584; 1839, Lathrop v. Commercial Bank, 8 Dana (Ky.) 114, 33 Am. Dec. 
 481; 1840, Commercial Bank v. Newport Co., 1 B. Mon. (Ky.) 13, 35 Am. 
 Dec. 171 ; 1848, Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361 ; 1857, 
 Goodwin v. Union Screw Co., 34 N. H. 378; 1862, Topping v. Bickford, 4 Al- 
 len 120; 1867, Pixley v. R. Co., 33 Cal. 183; 1867, Sherman v. Fitch, 98 Mass. 
 59; 1868, Racine, etc., R. Co. v. Farmers' L., etc., Co., 49 111. 331, 95 Am. 
 Dec. 595; 1890, Duke v. Markharn, 105 N. C. 131, 18 Am. St. R 889; 1892, 
 Roberts v. Demi ng Wood Working Co., Ill N. C. 432: 1895, Sarmiento v. 
 Davis Boat, etc., Co., 105 Mich. 300, 55 Am. St. R. 446; 1895, B. S. Green Co. 
 v. Blodgett, 159 111. 169, 50 Am. St. R. 146; 1896, Ford v. Hill, 92 Wis.188, 53 
 Am. St.'R. 902; 1899, Speirs v. Drop-Forge Co., 174 Mass. 175, 54 N. E. Rep. 
 497 ; 1899. State, ex rel. Grimm, v. Manhattan Rubber Co., 149 Mo. 181 ; 1900, 
 Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S. W. Rep. 1095. If seal is 
 not present officer's authority must be shown: 1900, Fontana v. Pacific Can. 
 Co., 129 Cal. 51, 61 Pac. Rep. 580. 
 
 See note next case. Also, notes 50 Am. St. R. 150, and 64 Am. St. R. 260; 
 1900, Garland Mfg. Co. v. Northumb. Paper Co., 31 Ont. 40. 
 
 Sec. 341. Same. 
 
 (c) In deeds conveying land, the corporate seal is re- 
 quired in some states. 
 
 GARRETT v. BELMONT LAND COMPANY. 1 
 1895. I N THE SUPREME COURT OF TENNESSEE. 94 Tenn. Rep. 
 
 [Action of ejectment by Garrett against the land company. Both 
 parties trace title to a common source, but the complainant's title was 
 through a deed in which the ''Second National Bank conveys, remises, 
 and releases" and concludes "In testimony whereof, the Second Na- 
 tional Bank hath hereunto set its hand, by its president, James Mc- 
 Laughlin, this i3th day," etc. "(Signed) James McLaughlin, pres- 
 ident Second National Bank." 
 
 No seal, or any impression of one, though the bank had one, was 
 
 1 Statement abridged ; only that part of the opinion relating to the necessity 
 of the seal to make a valid conveyance is given.
 
 34 1 RIGHT TO HAVE AND USE A SEAL. 1 139 
 
 affixed to the instrument. It was shown that it was not the custom of 
 the bank to seal deeds, or other instruments, except stock certificates. 
 The defendant contends that this deed was insufficient to pass title to 
 complainants. The court below held the deed sufficient, and this is 
 one of the errors assigned.] 
 
 WILKES, J. * * * (After stating the facts, and holding with 
 Combe's Case, 9 Co. 75, after an excellent review of the cases, that 
 "When any one has authority as attorney to do any act, he ought to 
 do it in his name who gives the authority ; for he appoints the attorney 
 to be in his place and to represent his person; and, therefore, the 
 attorney can not do it in his own name, nor as his proper act, but in 
 the name and as the act of him who gives the authority," and 
 hence this was not the deed of the bank, proceeds as to the want of 
 seal as follows:) 
 
 Prior to the adoption of the code of 1858, the seal of the grantor 
 was necessary to the validity of any deed made by an individual or a 
 corporation. The use of seals by individuals arose out of necessity, 
 as, in former days, many persons of extensive estates were too illiter- 
 ate to make their manual signatures. Its adoption and use by cor- 
 porations, however, arose out of their nature and constitution, being 
 invisible, intangible bodies, composed of an aggregation of individ- 
 uals, who must speak, at least in weighty matters, through a common 
 seal. It was accordingly held that the affixing of the seal, and that 
 alone, united the several assents of the individuals who composed the 
 corporation, and gave expression to the act as the assent of the whole, 
 and that a corporation could enter into no contract of importance ex- 
 cept under seal. The tendency of modern legislation and the trend of 
 more recent decisions is toward the abolition of the strict rules for- 
 merly prevailing as to sealed instruments, and in many states statutes 
 have been passed doing away, in whole or in part, with the distinction 
 between sealed and unsealed instruments, and in most of the states 
 the use of the seal is now regulated by statute. There is a difference 
 kept up, however, in many of the states between the use of seals by 
 corporations and by individuals. While it is laid down broadly that 
 corporations may enter into contracts to the same extent as individuals 
 without using a seal, this clearly has reference to other contracts than 
 the conveyance of lands, and none of the cases to which we have 
 been cited hold that the use of a seal is not required in conveyances 
 of land. See Taylor on Corporations, section 248; Morawetz on 
 Corporations (2d ed.), section 338; Waterman on Corporations, 
 sections 89, 90; Mus. W. Co. v. Mus. L. Co., 37 Am. & Eng. Corp. 
 Cases 119; Gottfield v. Miller, 104 U. S. 527; Merrick v. Burling- 
 ton Plank-Road Co., n Iowa 74-76; Gary Holliday Lumber Co. v. 
 Cain et al., 13 So. Rep. 239. 
 
 These conveyances did not involve conveyances of real estate, and 
 none of the citations are authority for the proposition that a corpora- 
 tion can execute a deed without usiner a seal. But we think the con- 
 trary is held, more or less directly, in the following, as well as other 
 authorities: Spelling on Private Corporations, section 195; Beach on
 
 I 140 GARRETT V. BELMONT LAND COMPANY. 341 
 
 Private Corporations, 376, and section 742 as to mortgages ; Jones on 
 Mortgages, section 128; i Waterman on Corporations, section 95, 
 p. 303 ; Boone on Corporations, section 54 ; 3 Washburn on Real 
 Estate, p. 288, section 7; Leggett v. N. J. M. & B. Co., 23 
 Am. Dec. 746, note; 4 Am. & Eng. Ency. of Law, p. 240; 2 
 Am. & Eng. Ency. of Law, p. 910; Osborne v. Temis, 23 N. 
 J. Law 633, 658; Duke v. Markam, 18 Am. St. Rep. 889, note; 
 Miner's Ditch Co. v. Zellerbach, 37 Cal. 543 ; Hutchins v. Byrnes, 9 
 Gray 367; Flint v. Clinton Co., 12 N. H. 430; Tenney v. East War- 
 ren Lumber Co., 43 N. H. 343; Hatch v. Barr, i Ohio 390; Savings 
 Bank v. Davis, 8 Conn. 191 ; Isham v. Bennington Iron Co., 19 Vt. 
 230; Zollerv. Ide, i Neb. 439; Brinley v. Mann, 2 Cush. 337; Koch- 
 ler v. Iron Co., 2 Black 715, 721. 
 
 By the code of Tennessee of 1858, it is provided (M. & V., 2478) 
 that "the use of private seals in written contracts, except the seals of 
 corporations is abolished, and the addition of a private seal to an in- 
 strument of writing hereafter made shall not affect its character in any 
 respect whatever." 
 
 Did the act change the rule as to conveyances by corporations in 
 Tennessee so as to dispense with the necessity of a seal ? There is 
 certainly nothing in the act to so indicate, but the fact that seals of 
 corporations are excepted by its provisions is an indication that the 
 seal was to be used by corporations after the act was passed, as had 
 been done before its passage, at least in some cases. Statutes similar 
 to this have been passed in Alabama, Arkansas, Delaware, Florida, 
 Kentucky, Iowa, Kansas, Maryland, Minnesota, Mississippi, Nebraska, 
 North Carolina, Ohio, Indiana, Texas, Pennsylvania and West Vir- 
 ginia. Nevertheless, in most of these States corporations are still re- 
 quired to use their seals in making conveyances, as in Ohio, Indiana, 
 Kentucky, Maryland, Minnesota, Mississippi, Pennsylvania, Ne- 
 braska, Kansas and Texas. See 3 Wash, on Real Prop., p. 288. 
 And not only must the deed be sealed, but the seal must be affixed by 
 some one authorized to affix it. 3 Wash, on Real Prop., p. 289. 
 
 The conveyance of real estate is one of the most solemn and im- 
 portant acts a corporation is called upon to perform, and if the seal 
 is required for any purpose, it is difficult to conceive of any other act 
 for which its use is more necessary. If it was intended to abolish the 
 use of seals by corporations altogether, why was the saving or except- 
 ing clause inserted in the act? And if the seal is to be required in 
 any case, in what case is it more important than in a conveyance of 
 real estate, either absolutely or under mortgage? 
 
 Prior to the code, the use of an individual or private seal worked 
 various effects, as for example; If not under seal, it was necessary to 
 aver and prove a consideration in all contracts, oral or written, except 
 in cases of bills and notes. Roper v. Stone. Cooke 499; Shelton v. 
 Bruce, 9 Yer. 26; Read v. Wheeler, 2 Yer. 50; Brown v. Parks, 8 
 Hum. 297. The consideration of a sealed instrument could not be 
 inquired into in an action of law. Nivens v. Merrick, i Tenn. 314; 
 Coleman v. Sanderlin, 5 Hum. 563. And the statute of limitations
 
 34 1 RIGHT TO HAYK AND USE A SEAL. I 141 
 
 was different in cases of sealed and unsealed instruments. Anderson 
 v. Settle, 5 Sneed 203 ; Thompson v. Thompson, 2 Head 407, and 
 other cases. A release was required to be under seal. Evans v. 
 Pigg, 3 Cold. 397, 398; Simpson v. Moore, 6 Bax. 373. A sealed 
 contract merged one not under seal. Nunnelly v. Dunn, i Yer. 31 ; 
 Bishop on Contracts, section 31. A person could not bind another by 
 seal unless authorized by seal. Nunnelly v. Dougherty, i Yer. 27; 
 Turbeville v. Ryan, i Hum. 113. Creditors under scaled instru- 
 ments had certain preferences at common law in estates of deceased 
 persons., Anson on Contracts, p. 48. 
 
 The application of this section of the code, No. 2478, finds ample 
 scope in altering these rules derived from the common law in regard 
 to contracts and conveyances by individuals, without extending it to 
 the deeds and other solemn instruments to be executed by corpora- 
 tions, and, in view of the saving clause excepting corporation seals, 
 we can not infer that the legislature intended to abolish the use and 
 necessity for corporate seals altogether. 
 
 We are of opinion that this act, 2478 M. & V. Code, does not 
 change the rule of the common law requiring corporations to use their 
 seals in all conveyances of real estate, and a conveyance not under 
 seal, made by a corporation, does not vest a legal title in the grantee, 
 except, it may be, cases of corporations created under the act of 1875, 
 and which have no common seal, in which case that act provides that, 
 in such corporations, having no common seal, the signing of the name 
 of the corporation, by any duly authorized agent, shall be legal and 
 binding. See act 1875, ch. 142, section 5; M. & V., 1704. 
 
 The corporation now in question was not created under the act of 
 1875, but under the acts of congress providing for national banks, 
 and we are not called upon to say whether, under this act of 1875, a 
 corporation may convey without seal in any case. That question is 
 in no way involved in this case. We are of opinion that the deed in 
 question in this case was not properly signed nor sealed, and hence 
 did not vest the legal title to the lots in controversy in complainants, 
 but only operated to create in them an equitable interest and title. 
 Poineroy's Eq. Juris., section 418; Devlin on Deeds, section 246; 
 Beardsley v. Knight, 33 Am. Dec. 193; Frost v. Wolf, 19 Am. State 
 Rep. 761, 764; Allis v. Jones, 45 Fed. Rep. 148; Brinkley v. Bethel, 
 9 Heis. 786. * * * 
 
 Reversed. 
 
 Note. See Accord: 1839, Kinzie v. Chicago, 2 Scammon (111.) 187, 33 Am. 
 Dec. 443; 1855, Baltimore, etc., R. Co. v. Gallahue, 12 Gratt. (Va.) 655, 65 
 Am. Dec. 254; 1867, Gashwiler v. Willis, 33 Cal. 11, 91 Am. Dec. 607; 1885, 
 City of Tiffin v. Shawhan, 43 Ohio St. 178, 184; 1890. Shropshire v. Behrons 
 & Castles ft al., 11 Texas 275; 1891, Danville Seminary v. Mott et al., l.Hn 111. 
 289; 1893, Brown v. Supply Co., 23 Ore. 541; 1897, Allen v. Brown, 6 Kan. 
 App. 704, 50 Pac. Rep. 505. 
 
 But see, contra, 1808, Sandford v. Tremlett, 42 Mo. 384 ; 1900, Pullis v. Pullia 
 Bros. Iron Co., 157 Mo 56-'), 57 S. W. Rep. 1095. 
 
 An equitable title will pans if the corporate seal is not present: 1899, 
 Precious Blood Society v. Elsythe, 102 Tenn. 40, 50 S. W. Rep. 759.
 
 I 142 GLOBE ACCIDENT INSURANCE CO. V. REID. 342 
 
 Sec. 342. Same. 
 
 (d) Signing in some way is now generally of more im- 
 portance than sealing. 
 
 GLOBE ACCIDENT INSURANCE COMPANY v. REID. 1 
 
 1898. IN THE APPELLATE COURT OF INDIANA. 19 Ind. App. Rep. 
 
 203-222. 
 
 Action by the widow of John Reid to recover on a policy of insur- 
 ance on his life. There was a judgment by default; defendant 
 claimed there was error by the court, upon application, in not setting 
 aside service of summons, and also that the complaint was insufficient 
 on its face, for the reason that it showed the policy was not signed by 
 the insurance company.] 
 
 BLACK, J. * * * The objection urged against the complaint 
 is, that the policy, as shown by the copy thereof made an exhibit, is 
 not signed by the insurance company or by any person. 
 
 The policy so set forth commences as follows: "Globe Accident 
 Insurance Company, Indianapolis, Indiana. * * * insures John 
 A. Reid," etc. And the exhibit concludes as follows: 
 
 "In witness the Globe Accident Insurance Company affixes its cor- 
 porate seal and signature of its president and secretary, 23 January, 
 1894." 
 
 [L. S.] 
 
 Thus the policy appears to have been sealed, the lettering or de- 
 vice of the seal not being indicated except as above, but the policy, 
 as shown by the complaint, was not signed. The exhibit must be 
 regarded as controlling the averments of the pleading. Something 
 has been said in argument to the effect that parol contracts of insur- 
 ance may be made when not prohibited by the charter of the insurance 
 company, and that no special form of words is necessary ; but the 
 complaint before us is so plainly founded upon the written instrument, 
 not embodied in the pleading, but filed with it as an exhibit, that no 
 pretense to the contrary could have any plausible support. It is only 
 as the foundation of the action that the court can take notice of the 
 exhibit. Unless the policy has been executed in some valid manner, 
 it can not be regarded as a written contract. By its language, in pre- 
 scribing the form in which it is to be executed, it provides not only 
 for the affixing of the corporate seal, but also for the signature of the 
 president and secretary of the corporation. It can not be said to have 
 been completely executed according to its own provisions. At com- 
 mon law, as is well known, a corporation spoke only by its common 
 seal. Its contracts were valid only when its seal was affixed by a duly 
 authorized agent, and a sealing was a sufficient execution of its deed 
 without signing. Where a statute expressly provides that a corpora- 
 
 1 Only that part of opinion relating to signing the policy is given.
 
 34 2 RIGHT TO HAVE AND USE -A SEAL. I 143 
 
 tion may have and use a common seal, it is but declaratory of an in- 
 cidental power which a duly organized corporation possessed formerly 
 at common law and still possesses. But the old common law require- 
 ment of the use of a seal by a corporation has been discarded, and 
 where a corporation is merely authorized by statute to have and use a 
 common seal, it need not use it in the execution of its ordinary con- 
 tracts. Unless its charter or some statute requires it, a corporation 
 need not use a seal except where a natural person would be required 
 to use one ; and no particular efficacy attaches now to a seal affixed 
 to a contract merely because it is the seal of a corporation. Where 
 it is used it must be affixed by an authorized officer or agent, but it 
 has no greater effect or higher virtue upon the contract of the corpo- 
 ration than has the seal of a natural person affixed to his contract. 
 
 Our statute, section 454, Burns' R. S. 1894(450, Horner's R. S. 
 1897), provides that "there .shall be no difference in evidence between 
 sealed and unsealed writings; and every writing not sealed shall have 
 the same force and effect that it would have if sealed." 
 
 The next section provides: "The execution of an instrument is the 
 subscribing and delivering it, with or without affixing a seal." 
 
 In this state it is not required by any statute that a policy of insur- 
 ance issued by a domestic corporation shall be sealed. The provis- 
 ions of sections 454, 455? Burns' R. S. 1894, above quoted, are ap- 
 plicable to such a written instrument. 
 
 In Peoria, etc., Ins. Co. v. Walser, 22 Ind. 73, the action was 
 founded on a policy of insurance which was exhibited with the com- 
 plaint. The policy commenced thus: "The Peoria Marine and Fire 
 Insurance Company do insure," etc. ; and it concluded thus: "In 
 witness whereof, the president of said insurance company has hereunto 
 subscribed his name and caused the same to be attested by their secre- 
 tary, at," etc. "But the same shall not be valid until countersigned 
 by A. Andrews, agent at," etc. It was countersigned by said agent, 
 but it was not signed by the president or attested by the secretary. 
 The complaint was held insufficient on demurrer, because the policy 
 was but partially executed, and was therefore invalid. In McMillen 
 v. Terrell, 23 Ind. 163, it was said: "Ordinarily, written obligations 
 are executed by signing the names of the parties to be bound thereby 
 at the bottom or close of the instruments. But this mode of execu- 
 tion is not essential to the validity of the instrument. The law does 
 not prescribe the particular place where the obligor's name must be 
 placed ; it may be at the beginning or in the body, at the close' or 
 perhaps on the margin of the instrument ; but wherever placed, it 
 must be done with the intention of thereby executing it as the obliga- 
 tion of the party so signing it. If the signature is placed at the close, 
 at the ordinary place of signature, the inference is that it was so placed 
 as the final execution of the instrument. This inference, however, 
 does not necessarily arise when the name is found at the commence- 
 ment or in the body. In such case there should be some evidence, 
 either in the form of the instrument or the circumstances attending
 
 I 144 GLOBE ACC.IDENT INSURANCE CO. V. REID. 342 
 
 the signature, showing that it was the intention of the party thereby 
 to execute it." 
 
 In the Wild Cat Branch v. Ball, 45 Ind. 213, the action was upon 
 a bond exhibited with the complaint, not sealed, containing the name 
 of the principal in the body, and signed by the sureties, but not signed 
 by the principal. It was held that the complaint was insufficient as 
 against the principal on demurrer. The court held that under our 
 statute a seal was not necessary to the execution or validity of the 
 bond ; and referring to the section of the statute quoted above as sec- 
 tion 555 [455], Burns' R. S. 1894, said that this section answered the 
 question as to what was necessary to the valid execution of the instru- 
 ment, that it is the subscribing and delivering it. The court was of 
 the opinion that in construing the statute (which does not prescribe a 
 signing, but requires a subscribing) it should be regarded as intending 
 a writing under, at the bottom or at the end of the instrument, and 
 that though the name of the principal hi the beginning of the bond 
 were written there by himself, this could not be regarded as a sub- 
 scribing, and that he could not be held liable upon any supposition 
 that he adopted the name at the beginning; that whatever may have 
 been the rule previously, he was not, according to the statute, bound 
 by the bond, because he did not subscribe it. 
 
 Without regard to this strict construction of the statute, we could 
 not consider the name of the appellant in the beginning of the policy 
 as the signature of the insurer. Aside from the fact that a corpora- 
 tion can not sign its own name, which can only be signed by an au- 
 thorized agent, and aside from all other considerations pertinent to 
 the subject, the policy at its conclusion indicates that its contemplated 
 execution was to include signing by the president and secretary at the 
 end of the instrument, and therefore the name at the beginning was 
 not intended as the subscribing of the policy. 
 
 The statute prescribing what constitutes execution of an instrument 
 can not be ignored. The seal, if not required by some other statute, 
 is wholly immaterial. It does not constitute a subscribing, and with- 
 out subscribing as well as delivery, the instrument is not fully executed. 
 Prather v. Ross, 17 Ind. 495; Nicholson v. Combs, 90 Ind. 515; 
 Crumrine v. Estate of Crumrine, 14 Ind. App. 641. * * * 
 
 Reversed. 
 
 Note. See, 1808, Jackson v. Walsh, 3 Johns. (N. Y.) 226; 1825, Decker v. 
 Freeman, 3 Maine 338; 1836, Lovett v. Steam Saw Mill Ass'n, 6 Paige (N. Y.) 
 54 ; 1847, Isham v. Bennington Iron Co., 19 Vt. 230; 1857, Hutching v. Byrnes, 
 9 Gray (Mass.) 367; 1862, Haven v. Adams, 4 Allen (Mass.) 80; 1873, N. W. 
 Distilling Co. v. Brant, 69 111. 658, 18 Am. Rep. 631. 
 
 But if seal is not present officer's authority must be shown : 1900, Fontana 
 v. Pacific Can. Co., 129 Cal. 51, 61 Pac. Rep. 580; and at common law sealing 
 alone was sufficient without. signing; 1858, Johnston v. Crawley, 25 Ga. 316, 
 71 Am. Dec. 173; and Cook, Corp., 722, savs the Equitable Life Insurance 
 Co. now discharges mortgages by attaching its seal to the discharge without 
 other signature. 
 
 As to the proper method of signing, see supra, p. 862, and IV Thonij>. 
 Corp., 5090.
 
 343 RIGHT TO HAVE AND USE A SEAL. 1 145 
 
 Sec. 343. 2. Sufficiency and effect of a seal, 
 (a) Presumptions. 
 
 JACKSONVILLE, MAYPORT, PABLO RY. & NAV. CO. v. HOOPER. 1 
 
 1896. IN THE SUPREME COURT OF THE UNITED STATES. 160 U. 
 
 S. Rep. 514-530. 
 
 [Action by Hooper to enforce covenants under a lease of a hotel 
 to the railway company by plaintiffs. The declaration was in cove- 
 nant, and an exhibit was attached purporting to be the lease sued 
 upon, to which the signature of the company was as follows: 
 "Jacksonville, Mayport, Pablo Railway and Navigation 
 
 "Company. [Seal] 
 
 "By Alex. Wallace, President." 
 
 The defendant denied it had executed the lease, or that Wallace 
 had authority to execute it. Decision below for the plaintiff, overrul- 
 ing defendant's demurrer. Error brought.] 
 
 MR. JUSTICE SHIRAS. * * * The defendant demurred on sev- 
 eral grounds, one of which was as follows: 
 
 "That attached to the said declaration is a paper purporting to be 
 the contract which is the basis of this suit, which paper is alleged to 
 be a lease between the defendant company and the plaintiffs, and 
 which paper is referred to in each and every count of said declaration, 
 and asked and prayed and made a part of said declaration ; that each 
 and every count of same declares in covenant, and yet the same con- 
 tains on the face thereof and the face of the paper made part thereof 
 that the said cause of action will not lie because the said paper is not 
 under seal ; that there is no seal of the defendant company to said 
 paper." 
 
 The theory of this demurrer appears to be that there should have 
 been an averment on the face of the instrument that the seal attached, 
 on behalf of the company, was its common or corporate seal. How- 
 ever, there was an averment that the parties had set their hands and 
 seals to the paper, and the attesting clause alleged that the railroad 
 company had signed, sealed and delivered in the presence of two 
 witnesses, who signed their names thereto. On demurrer this was 
 plainly sufficient. 
 
 But it is urged in the third and fourth assignments that it was error 
 to permit to be put in evidence the certified copy of the lease, as like- 
 wise the duplicate lease, because they were not shown to be under the 
 seal of the company, but appeared to be under the private seal of Al- 
 exander Wallace, the president of the company. But, in the absence 
 of evidence to the contrary, the scroll or rectangle containing the word 
 "seal" will be deemed to be the proper -and common seal of the 
 company. A seal is not necessarily of any particular form or figure. 
 
 1 Only that part of opinion relating to seal is given.
 
 1146 JACKSONVILLE, MAYPORT, ETC., CO. V. HOOPER. 343 
 
 In Pillow v. Roberts, 13 How. 472, 474, this court said, through 
 Mr. Justice Grier, when discussing an objection that an instrument 
 read was improperly admitted in evidence because the seal of the cir- 
 cuit court authenticating -the acknowledgment was an impression 
 stamped on paper and not "on wax. wafer, or any other adhesive or 
 tenacious substance," said: "It is the seal which authenticates, and 
 not the substance on which it is impressed ; and where the court can 
 recognize its identity, they should not be called upon to analyze the 
 material which exhibits it. In Arkansas the presence of wax is not 
 necessary to give validity to a seal ; and the fact that the public officer 
 in Wisconsin had not thought proper to use it, was sufficient to raise 
 the presumption that such was the law or custom in Wisconsin, till 
 the contrary was proved. It is time that such objections to the valid- 
 ity of seals should cease. The court did not err in overruling the 
 objections to the deed offered by the plaintiff." Price v. Indseth, 
 106 U. S. 546, is to the same effect. 
 
 Whether an instrument is under seal or not is a question for the 
 court upon inspection ; whether a mark or character shall be held to 
 be a seal depends upon the intention of the executant, as shown by 
 the paper. Hacker's Appeal, 121 Pa. St. 192; Pillow v. Roberts, 
 ub. supra. 
 
 The defendant did not produce the original in order that it might 
 be compared in the particular objected to with the copy and duplicate 
 offered. The defendant's attorney, Mr. Buckman, was called, and 
 testified that he was one of the attesting witnesses to the instrument 
 offered, and that he, as a notary public, took the acknowledgment 
 thereto of Alexander Wallace, that he executed the same for and in 
 behalf of the company, and that the said lease was the act and deed 
 of the defendant company for the uses and purposes therein expressed. 
 
 Whether, therefore, the instrument put in evidence was merely a 
 copy, in which event it would not be expected that a wax or stamped 
 seal of the company would appear upon it, but merely a scroll, repre- 
 senting the original seal, or whether the so-called copy was really the 
 original paper, as certified by one of defendant's witnesses, would 
 not, in our opinion, be material. The presumption would be, if the 
 paper were a copy, that the original was duly sealed, or, if it were 
 the original, that the scroll was adopted and used by the company as 
 its seal, for the purpose of executing the contract in question. * * * 
 
 Affirmed. 
 
 Note. As to the sufficiency of the seal, it seems that any device adopted 
 by the corporation for the purpose will be sufficient: 1826, Perry v. Price, 1 
 Mo. 664, 14 Am. Dec. 316; 1839, Kinzie v. Chicago, 2 Scam. (111.) 187, 33 Am. 
 Dec. 443; 1848, Brinley v. Mann, 2 Cash. (Mass.) 337,48 Am. Dec. 669; 
 1858, Johnson v. Crawley, 25 Ga. 316, 71 Am. Dec. 173; 1868, Royal Bank v. 
 Grand June., etc., Co., 100 Mass. 444,97 Am. Dec. 115; 1889, Penn. Nat. Gas 
 Co. v. Cook, 123 Pa. St. 170; 1895, Sarmiento v. Davis Boat Co., 105 Mich. 
 300, 55 Am. St. Rep. 446; 1897, Thayer v. Nehalem Mill Co., 31 Ore. 437, 51 
 Pac. Rep. 202; 1899, Ellison v. Branstrator, 153 Ind. 146, 54 N. E. Rep. 433. 
 
 If the seal alone is present, it must be proved to be the corporate seal 
 it does not prove itself: 1800, Den v. Vreeland, 2 Halst. (N. J.) 352, 11 Am.
 
 344 RIGHT TO HAVE AND USE A SEAL. 1147 
 
 Dee. 5->l ; 1820, Berks Turnpike Road v. Myers, 6 S. & R. 12, 9 Am. Dec. 
 402; 1826, Perry v. Price, 1 Mo. 664, 14 Am. Dec. 316. 
 
 But if the contract is shown to have been executed by the proper officers 
 with authority, any seal present will be presumed to be the corporate seal : 
 18o2, Susquehanna, etc., Co. v. General Co., 3 Md. 305, 56 Am. Dec. 740; 
 185o, Phillips v. Coffee. 17 111. 154, 63 Am. Dec. 357; 1867, Museer v. John- 
 son, 42 Mo. 74, 97 Am. Dec. 316 ; 1894, Benbow v. Cook, 115 N. C. 324, 44 Am. 
 St. Rep. 454. 
 
 See next case and note. 
 
 Sec. 344. (b) As evidence of agents' or officers' authority. 
 
 LITTLE SA7T MILL VALLEY TURNPIKE OR PLANK ROAD COM- 
 PANY v. FEDERAL STREET AND PLEASANT VALLEY PASSEN- 
 GER RAILWAY CO. 1 
 
 1899. IN THE SUPREME COURT OF PENNSYLVANIA. 194 Pa. St. 
 Rep. 144, 75 Am. St. R. 690. 
 
 [Action by road company upon a contract made with it by the 
 president of the railway company, whereby the latter guaranteed to 
 pay annually to the road company any deficiency in its tolls, due to 
 the change of the motive power of the railway company using the 
 road, from horse power to electricity.] 
 
 BROWN, J. * * * It is insisted, however, that the railroad 
 company was not bound by the contract, because it was made by the 
 president without authority from the corporation or its board of di- 
 rectors. It is signed by the president. The corporate name attached 
 was apparently in the handwriting of the secretary, and the common 
 seal was affixed. Neither officer was called to deny authority to act, 
 and the presumption was that it had been given. The maxim, Omnia 
 praesumuntztr rite esse acta, applies to acts done on behalf of cor- 
 porations, and it can never be presumed that a corporate agent is act- 
 ing wrongfully; or that an act which might have been a proper act to 
 d > on behalf of the corporation was done under circumstances render- 
 ing it improper: Taylor on Private Corporations, section 204. 
 "Where a party deals with a corporation in good faith the transac- 
 tion is not ultra vires and he is unaware of any defect of authority 
 or other irregularity on the part of those acting for the corporation, 
 and there is nothing to excite suspicion of such defect or irregularity, 
 the corporation is bound by the contract, althDugh such defect or 
 irregularity in fact exists. If the contract can be valid under any cir- 
 cumstances, an innocent party in such a case has a right to presume 
 their existence, and the corporation is estopped to deny them." Mer- 
 chants' Bank v. State Bank, 10 Wall. 644. "When the common 
 seal of a corporation appears to be affixed to an instrument, and the 
 signatures of the proper officers are proved, the courts are to presume 
 that the officers did not exceed their authority, and the seal itself is 
 prima facie evidence that it was affixed by proper authority." Angell 
 and Ames on Corporations, section 224. The second point submitted 
 
 1 Statement abridged. Only the part relating to the effect of the corporate 
 seal is given.
 
 1148 MAYOR V. THE NORFOLK RAILWAY COMPANY. 345 
 
 by defendant was properly refused. The second and third assign- 
 ments of error are overruled and the judgment affirmed. 
 
 Note. The presence of the corporate seal is prima facie evidence of the 
 agent's authority to act for the corporation, and to affix the seal, and also 
 that the corporation has taken the necessary steps to authorize the contract 
 to be entered into: 1820, Berk's Turnpike Road v. Myers, 6 Serg. & R. 12, 9 
 Am. Dec. 402; 1832, Leggett v. New Jersey, etc., Co., 1 Saxton Ch. (N. J.) 
 541, 23 Am. Dec. 728; 1833, Gordon v. Preston, 1 Watts (Pa.) 385, 26 Am. 
 Dec. 75; 1839, Kinzie v. Chicago, etc., 2 Scam. (111.) 187, 33 Am. Dec. 443; 
 1840, Bun-ill v. Nahant Bank, 2 Met. 163, 35 Am. Dec. 395; 1859, St. Louis 
 Pub. Schools v. Risley, 28 Mo. 415, 75 Am. Dec. 131 ; 1863, Koehler v. Black 
 River Falls, etc., Co., 2 Black 715; 1867, Musser v. Johnson, 42 Mo. 74, 97 
 Am. Dec. 316; 1867, Sheehan v. Davis. 17 Ohio St. 571; 1869, Miner's Ditch 
 Co. v. Zellerhach, 37 Cal. 543, 99 Am. Dec. 300; 1874, Central Nat'l Bank v. 
 Charlotte, etc., R., 5 S. C. 156, 22 Am. Rep. 12; 1890, Sherman, etc., Co. v. 
 Swigart, 43 Kan. 292, 19 Am. St. Rep. 137; 1891, Mullanphy Sav. Bank v. 
 Schott, 135 111. 600, 25 Am. St. Rep. 401 ; 1894, Benbow v. Cook, 115 N. C. 324, 
 44 Am. St. Rep. 454; 1895, B. S. Green Co. v. Blodgett, 159 111. 169, 50 Am. 
 St. Rep. 146, note 150; 1899, Ellison v. Branstrator, 153 Ind. 146; 1900, In re 
 West Jersey Tract. Co., 59 N. J. Eq. 63, 45 Atl. Rep. 282; Contra, 1898, Mor- 
 rison v. Wilder Gas Co., 91 Maine 492, 64 Am. St. Rep. 257 but see note 
 here, p. 260. 
 
 The corporation can be shown to have no authority to make the contract : 
 1832, Leggett v. New Jersey, etc., Co., 1 Saxton Ch. (N. J.) 541, 23 Am. Dec. 
 728; 1866, Conine v. Junction R. Co., 3 Houst. 288, 89 Am. Dec. 230. 
 
 So, too, the agent's authority may be questioned : 1845, Gibson v. Gold- 
 thwaite, 7 Ala. 281, 42 Am. Dec. 592; 1876, Luse v. Isthmus, etc., Co., 6 Ore. 
 25 Am. Rep. 506. 
 
 Sec. 345. (c) As evidence of a consideration. 
 
 LORD CAMPBELL, C. J., IN THE MAYOR, ETC., OF NORWICH v. THE 
 NORFOLK RAILWAY COMPANY. 
 
 1855. IN THE QUEEN'S BENCH. 82 Eng. C. L. (4 El. & Bl.) 
 Rep. * 3 6;, on *443~6. 
 
 [Action against the railway company on a covenant under their 
 seal to pay^i,ooo in case certain works were not completed, whether 
 a certain act of parliament should be obtained or not, as agreed under 
 seal. It was averred that the works were not completed, though 
 plaintiff had performed all conditions precedent.] 
 
 Although the agreement be under seal, we may examine to see 
 whether there was any, and what consideration for the contract to pay 
 money, when we are to determine whether the contract was or was 
 not ultra vires. The mere circumstance of a covenant by directors 
 in the name of the company being ultra vires, as between them and 
 the shareholders, does not necessarily disentitle the covenantee to sue 
 upon it. For example, if the directors of a railway company were 
 to enter into a contract under the seal of the company for the purchase 
 of a large quantity of iron rails and to pay for them at a fixed price, 
 as the vendor had reasonable ground for supposing that the rails were 
 wanted for the purpose of the railroad, it would be no defense to an
 
 345 RIGHT TO HAVE AND USE A SEAL. I 149 
 
 action for the price, or for not accepting them, that the rails were 
 illegally purchased on speculation, to be resold by the directors for 
 their own profit. But suppose that the directors of a railway com- 
 pany should purchase a thousand gross of green spectacles, as a specu- 
 lation, and should put the seal of the company to a deed covenanting 
 to pay for these goods, here would be a clear excess of authority on 
 the part of the directors ; this excess of authority would necessarily 
 be known to the covenantee ; and, he being in part dclicto, I conceive 
 that the maxim would apply potior est conditio possidentis. This 
 would be an illegal contract to misapply the funds of the company; 
 and the illegality might be set up as a defense. So, if, without any 
 consideration whatever, the directors of a railway company were to 
 put the company's seal to a deed covenanting to pay a mere stranger 
 ;i,ooo, this would be ultra vires, to the knowledge of the covenan- 
 tee, and he could not maintain an action to recover the ^i,cxx> from 
 the funds of the company in fraud of the shareholders. When the 
 excess of authority, with the knowledge of both parties, is shown 
 by plea, this joint violation of the law, I apprehend, is a bar to the 
 action. 
 
 It has been contended, I am aware, that the deeds of such com- 
 panies are to be treated like the deeds of individuals or of common 
 partnerships. But there seems to be an essential distinction between 
 them. The individual may do what he likes with his own, and he 
 may bind himself by a deed disposing of his property, however 
 capriciously, and without any consideration, so that no fraud has been 
 practiced upon him. In such a case, want of consideration is imma- 
 terial; no one is injured, and there is no illegality to be pleaded. "To 
 look upon a railway company," says Lord Langdale, in Coleman v. 
 Eastern Counties Railway Company, 10 Beav. I, 14, "in the light of 
 a common partnership, and as subject to no greater vigilance than 
 common partnerships are, would, I think, be greatly to mistake the 
 functions which they perform, and the powers which they exercise. of 
 interference, not only with the public, but with the private rights of 
 all individuals in this realm. We are to look to these powers as given 
 to them, in consideration of a benefit which, notwithstanding all other 
 sacrifices, it is to be presumed and hoped, on the whole, will be ob- 
 tained by the public;" "and I am clearly of opinion, that the powers 
 which are given by an act of parliament like that now in question, 
 extend no farther than is expressly stated in the act, or is necessarily 
 and properly required for carrying into effect the undertaking and 
 works which the act has expressly sanctioned." The same learned 
 iudge, in answer to an argument that the directors may apply the 
 funds of the company as they please, so that their object is to increase 
 the traffic upon the railway, and thereby to increase the profits of the 
 shareholders, exclaims, "surely that has nowhere been stated; there 
 is no authority for saying anything of that kind." "Unless acts so 
 done can be proved to be in conformity with the powers given by the 
 statutes under which those acts are done, they furnish no authority 
 whatever."
 
 1 1 50 CHASE NATIONAL BANK V. B. C. FAUROT. 346 
 
 The equity reports abound with cases in which injunctions have 
 been granted against the application of the funds of such companies 
 to purposes not authorized by the acts of parliament creating them, 
 although professedly for the benefit of the shareholders: and I appre- 
 hend that a contract, against the performance of which an injunction 
 would be granted in equity, must be considered illegal and void at 
 law, on proof that, to the knowledge of both parties, it is beyond the 
 power of the directors, and leads to a misapplication of the funds 
 of the company. On this principle proceeded the solemn decision of 
 the court of common pleas in The East Anglian Railways Company 
 v. The Eastern Counties Railway Company, n Com. B. 775 (E. C. 
 L. R., vol. 73), where a railway company having, by a deed under 
 their seal, covenanted with another railway company to take a lease 
 of their railway, and to pay the expenses incurred by them in solicit- 
 ing certain bills in parliament, which were then pending, whether 
 these bills should pass into law or not, and the bills not having 
 been obtained, the covenantees sought to recover the amount of these 
 costs. It was decided that the covenantors had a limited authority, 
 and were a corporation only for making and maintaining the railway 
 sanctioned by their act, and that the funds of the company could only 
 be applied to these purposes; so that, as the contract sued upon was 
 not justified by the act of parliament, it was consequently void, and 
 could not be made the foundation of an action. 
 
 Note. See contra, 1868, Royal Bank of Liverpool v. Grand June., etc., Co., 
 100 Mass. 444,97 Am. Dec. 1J5; and compare, 1879, Best v.Thiel, 79 N. Y. 15; 
 1895, Taft v. Church, 162 Mass. 527. 
 
 Sec. 346. (d) Upon a negotiable instrument. 
 
 CHASE NATIONAL BANK, RESPONDENT, v. B. C. FAUROT, APPELLANT. l 
 
 1896. IN THE COURT OF APPEALS OF NEW YORK. 149 N. Y. 
 Rep. 532-539, 35 L. R. A. 605. 
 
 BARTLETT, J. The plaintiff seeks to recover of defendant as in- 
 dorser of a promissory note for $16,787.02, signed "New York Con- 
 struction Company, by T. P. Graf, secretary." 
 
 Impressed upon the face of the note were the words "New York 
 Construction Company, seal." The note did not recite a seal and no 
 effort was made at the trial to prove the seal, or that it was affixed by 
 authority of the "New York Construction Company," save reading 
 the note in evidence. The note was executed and payable in the 
 state of Ohio and the contract of indorsement was made in the state 
 of New York. The facts upon this appeal are undisputed, and the 
 plaintiff's counsel insists that the seal on the note in suit was not 
 proved within the rule laid down by this court in Weeks v. Esler 
 
 1 Part of opinion on another point omitted.
 
 346 RIGHT TO HAVE AND USE A SEAL. ll$l 
 
 ( 143 N. Y. 374) ; that a note is negotiable, and having been pur- 
 chased in good faith and before maturity, as found by the jury, the 
 recovery below must be sustained. 
 
 The defendant's counsel, while admitting that the rule in Weeks v. 
 Esler is opposed to certain of his contentions on this appeal, urges 
 with much earnestness and ability that this court should reconsider 
 the doctrines of that case; he also argues that even assuming the note 
 to be negotiable in form, it never had a legal inception, and defend- 
 ant is not liable as indorser. 
 
 We held in Weeks v. Esler that the presumption attaching ordi- 
 narily to seals of corporations when affixed to deeds, or other instru- 
 ments did not exist as to the promissory notes of a corporation, and that 
 in the absence of any recital that the seal of the corporation was af- 
 fixed and of any evidence to show the fact of sealing, or that the 
 corporate seal was impressed, or that it was the corporate seal, the 
 notes could not be regarded as sealed instruments. 
 
 We think this rule a reasonable one in view of the vast business 
 transactions of corporations, and see no occasion to reconsider it. 
 
 In the case at bar we shall assume for the purposes of this appeal 
 that the note in suit was a sealed instrument, and will place our de- 
 cision on broader grounds than those laid down in Weeks v. Esler. 
 
 In view of the law as settled by this court and the courts of other 
 jurisdictions as to what instruments are negotiable, we hold that the 
 commercial paper of a corporation negotiable in form does not lose 
 the quality of negotiability by having attached thereto the corporate 
 seal. 
 
 The following are a few of the cases showing the evolution of the 
 modern doctrine that a seal does not deprive corporate obligations of 
 negotiability : 
 
 Bank of Rome v. Village of Rome (19 N. Y. 20). The village 
 had issued bonds under its corporate seal in aid of a railroad com- 
 pany, and the latter sold certain of them to a bona Jide holder, and 
 the question was whether the purchaser was subject to a defense avail- 
 able against the railroad company. 
 
 Comstock, J., said: "The bonds were payable to bearer, and 
 although under the corporate seal of the village, they were negotiable 
 instruments in such a sense as would exempt them, in the hands of a 
 bona fide holder, from a defense which might be available against 
 the railroad company." (Citing State of Illinois v. Delafield, 8 
 Paige 527; State of Illinois v. Delafield on appeal, 2 Hill 159, 177; 
 Mechanics' Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. 625, 627; 
 Morris Canal & B. Co. v. Fisher, 3 Am. L. Reg. 423.) 
 
 Brainerd v. New York & Harlem Railroad Company (25 N. Y. 
 496). It was held that the bond of a railroad corporation, payable 
 to an individual or his assigns, is in the nature of commercial paper, 
 negotiable by delivery under an assignment in blank, and not a 
 specialty subject to equities between the corporation and the person 
 named in the bond as the primary payee. 
 
 Denio, Ch. J., said: "The questions of law which the appeal
 
 I 1 52 CHASE NATIONAL BANK V. B. C. FAUROT. 346 
 
 presents are, whether these instruments are commercial paper, so as 
 to be negotiable, and whether they were legally negotiated by deliv- 
 ery under the blank assignment. These might have been very grave 
 questions in this state a few years ago. But they have been 
 settled against the defendant in this state by a series of decisions 
 which it is impossible at this day to depart from. * * * The 
 point of objection, when it is sought to bring such securities within 
 the law of commercial paper, is that, being under seal, they are deeds, 
 and commercial instruments are simple contracts. But when such 
 obligations are issued to secure the payment of money upon time, and 
 contain on their face an expression showing that they are expected to 
 pass from one person to another, and thus to perform the office of bills 
 and notes or of money, as the words 'bearer,' or 'assigns,' or 'holder/ 
 or the like, the courts of this country, with a single exception, and those 
 of this state, without any exception, have concurred in attaching to them 
 the attributes of commercial paper." (See cases cited in this opinion.) 
 
 This case also laid down the rule that no distinction could be made 
 between private corporations and those which are created for govern- 
 mental or municipal purposes. 
 
 Dinsmore v. Duncan (57 N. Y. 573). It was held that the nego- 
 tiability of a United States treasuiy note is not strained or affected 1>\ 
 the fact that it is under the treasury seal. 
 
 Dwight, C., said: "There are several objections urged to the 
 negotiability of this instrument. One is, that it is under the seal of 
 the United States treasury. There are, no doubt, decisions that an 
 instrument under seal is not negotiable. These cases refer to private 
 obligations between individuals. (Clark v. Farmers' Woolen Manu- 
 facturing Co., 15 Wend. 256; Steele v. Oswego Cotton Manufactur- 
 ing Company, 15 Wend. 265.) They are not to be extended to the 
 case of public securities like those issued by the government, and in- 
 tended to seek for a market throughout the civilized world. The 
 seal was not placed there to restrain their negotiability, but rather to 
 stamp them as genuine, wherever they might be in circulation." 
 
 Evertson v. National Bank of Newport (66 N. Y. 14) holds in- 
 terest coupons of railroad bonds payable to bearer at a specified time 
 and place are negotiable promises for the payment of money. (See 
 cases there cited.) 
 
 Marine, etc., Mfg. Co. v. Bradley (105 U. S. 175) was the case of 
 an instrument issued by a South Carolina corporation under seal agree- 
 ing to pay a certain sum of money, and by an indorsement under seal 
 the company agreed, in consideration of forbearance, to pay a higher 
 rate of interest on the money to bearer. 
 
 Mr. Justice Matthews, passing upon the validity of the indorsement, 
 said: "It is a negotiable note within the meaning of the law mer- 
 chant, according to the law of the place of the contract, notwithstand- 
 ing it is an instrument under seal" (p. 180). 
 
 In Mercer County v. Racket (i Wall. 83), the United States 
 supreme court held county bonds under seal to be negotiable instru-
 
 347 POWER TO MAKE BY-LAWS. 1 1 53 
 
 ments. Mr. Justice Grier said, in speaking of the bonds issued un- 
 der seal: "But there is nothing immoral or contrary to good policy 
 in making them negotiable if the necessities of commerce require 
 that they should be so. A mere technical dogma of the courts or the 
 common law can not prohibit the commercial world from inventing or 
 issuing any species of security not known in the last century." 
 
 The following authorities further illustrate the point under discus- 
 sion: Mason v. Frick (105 Pa. St. 162 and cases cited); Barrett v. 
 Schuyler Co. (44 Mo. 197) ; Morris Canal, etc., Co. v. Fisher (9 N. 
 J. Eq. 699) ; Haven v. Grand June. R. R. & D. Co. ( 109 Mass. 88) ; 
 Murray v. Lardner (2 Wall, no); National Exchange Bank v. 
 Hartford, P. & F. R. R. Co. (8 R. I. 375); Daniel on Neg. Inst., 
 150x5 and 1501 and cases cited; Morawetz on Corp., 341; 
 Tiedman on Com. Pap., 117. 
 
 In Blewitt v. Boorum (142 N. Y. 357) Judge Peckham, in a 
 learned and interesting opinion, reviews the history of seals upon in- 
 struments and points out their immateriality on contracts which do 
 not require them in order to be valid. 
 
 The note in suit being negotiable under the law of this state, and 
 the contract of indorsement having been made here, it is unnecessary 
 to consider many of the points ai'gued by appellant under the as- 
 sumption that the defendant had indorsed a non-negotiable instru- 
 ment. * * * 
 
 Affirmed. 
 
 Note. See cases cited in note to 238, supra, p. 864 ; and 1895, Am. Nat'l 
 Bank v. Am. Wood Paper Co., 19 R. I. 149. 
 
 ARTICLE VIII. POWER TO MAKE BY-LAWS. 
 
 Sec. 347. I. Definition and purpose, differs from regulation. 
 STATE v. ISAAC S. OVERTON. 1 
 
 1854. IN THE SUPREME COURT OF JUDICATURE OF NEW JERSEY. 
 24 N. J. Law (4 Zabriskie) Rep. 435-443, 61 Am. Dec. 671. 
 
 Overton, a conductor on the Morris & Essex R. R., forcibly ejected 
 a passenger from one of the trains, and was convicted of an assaul) 
 and battery therefor. A motion for new trial on account of misdirec- 
 tion of the court was overruled. This was assigned as error. The 
 passenger had purchased a ticket from N. to M. At a way station 
 between these stations he left the train, having first obtained a con- 
 ductor's check printed "Conductor's check to M." About an hour 
 afterward he took the train of Overton, to complete his journey to M. 
 
 1 Statement abridged. Only that part of opinion relating to one point is 
 given. 
 
 73 WIL. CAS.
 
 I 1 54 STATE V. ISAAC S. OVERTON. 347 
 
 Overtoil refused to recognize the conductor's check, demanded the 
 fare, and upon refusal to pay, put the passenger off without unneces- 
 sary violence. Some years before the company had adopted a rule, 
 and given public notice of it that conductor's checks were not trans- 
 ferable from one train to another. This action of the company was 
 submitted to the jury as if it were a by-law or regulation of the com- 
 pany affecting the rights of passengers, upon the reasonableness and 
 validity of which the jury were to decide. This was assigned as 
 error. 
 
 GREEN, C. J. * * * In this the court erred. Here was no evidence 
 of any by-law, or of any regulation made by the company affecting the 
 rights of passengers upon the reasonableness, or validity of which 
 either court or jury were called upon to decide. The right of the 
 passenger rested upon his contract. The notice given by the com- 
 pany was in strict conformity with his rights under the contract. Upon 
 the evidence in the cause, if no proof had been offered of the notice 
 given by the company, that conductors' checks were not transferable, 
 the defendant would have been entitled to a verdict. Proof of that 
 notice certainly placed him in no worse position. The company have 
 an unquestionable right, under their chai'ter, independent of any by- 
 law or regulation, to charge different rates by different trains, or a 
 higher price for traveling over the road as a way-passenger, by dif- 
 ferent journeys, than for a through passenger. This was in reality 
 all that was involved in the evidence of the action by the company, 
 as proved upon the trial. The case does not fall within the opera- 
 tion of the principle, by which it was held to be controlled. 
 
 Assuming at the bar, as was done upon the trial, that the guilt or 
 innocence of the defendant depended upon the validity of a regulation 
 made by the company, affecting the rights of passengers, the question 
 was elaborately argued whether the validity of such regulation can in 
 any case be submitted as a question of fact to be decided by a jury, 
 and the broad principle was assumed that the validity of every regu- 
 lation made by a railroad company, regulating the concerns and af- 
 fecting the rights of the road, is a question of law, to be decided by 
 the court, and never can be submitted to a jury ; that the company is 
 bound to make regulations for the comfort and convenience of pas- 
 sengers ; that the power is regulated by their charter ; that what is 
 lawful is reasonable, and that, therefore, every regulation is reason- 
 able which is not unlawful. 
 
 The validity of the by-law of a corporation is purely a question of 
 law. Whether the by-law be in conflict with the law or with the char- 
 ter of the company, or be in a legal sense unreasonable, and therefore 
 unlawful, is a question for the court and not for the jury. Common- 
 wealth v. Worcester, 3 Pickering 462 ; Paxon v. Sweet, i Green 196; 
 Ang. and Ames on Corps., 357. But the by-laws of a private corpo- 
 ration bind the members only by virtue of their assent, and do not 
 affect third persons. All regulations of a company affecting its busi- 
 ness, which do not operate upon third persons, nor in any way affect 
 their rights, are properly denominated by-laws of the company, and
 
 347 POWER TO MAKE BY-LAWS. I I 55 
 
 may come within the operation of the principle. Within this limit it is 
 the peculiar and exclusive office of the court to decide upon the validity 
 of the regulation. 
 
 But there is another class of regulations, made by corporations, as 
 well as by individuals, who are common carriers of passengers, which 
 operate upon, and affect the rights of others which are not, properly 
 speaking, by-laws of the corporation, and which do not fall within 
 the operation of the principle. Of this character are all regulations 
 touching the comfort and convenience of travelers, or prescribing 
 rules for their conduct to secure the just rights of the company. It is 
 not perceivable of this class of regulations, that they are never un- 
 reasonable unless they are unlawful. On the contrary, they are un- 
 lawful because they are unreasonable, or an unnecessaiy infringement 
 of the rights and liberty of the passengers. The reasonableness and 
 validity of a regulation, that passengers by railroad or steamboat 
 should exhibit their tickets when reasonably requested ; that they 
 should not smoke or indulge in other filthy, or offensive practices; 
 that male passengers should not enter a car or a saloon, especially ap- 
 propriated to females, might be conceded, and the right of the com- 
 pany to enforce them, even by excluding, in case of necessity, the of- 
 fending passenger from the train. But it would scarcely be contended 
 that a regulation requiring passengers continually, or as often as 
 the caprice or malice of a conductor might require it, to exhibit 
 their tickets ; forbidding them to speak, or change their seats from 
 one part of a car or saloon to another, when the right of no other 
 passenger was affected, was a regulation lawful in itself or which 
 might safely be enforced. This latter class of regulations are no 
 more in violation of the charter of the company, or of any particular 
 statute, than the former. But they would be held unlawful, because 
 they are unreasonable, and an unnecessary infringement of the rights 
 and liberty of travelers. The distinction between such regulations as 
 are necessary, and conducive to the comfort and convenience of trav- 
 elers, or to protect the rights of the company, must from its very 
 nature be a question of fact rather than of law. The reasonableness 
 and unreasonableness of the regulation is properly for the considera- 
 tion, not of the court, but of the jury. * * * 
 
 But there was in reality no such question involved in the present 
 case. The right to transfer conductors' checks, resulted upon a con- 
 tract which the company had a clear and unquestionable legal right to 
 enforce. The question was improperly submitted to the jury, and 
 the verdict is against law, and contrary to the evidence. * * * 
 
 New trial granted. 
 
 Note. See note 85 Am. Dec. 617, et seq ; 1886, L. S. & M. S. R. Co. v. Rosen- 
 zoweig, 113 Pa. St. 519; 1892, Am. Liv. St. Co. v. Chicago L. S. Ex., 143 HI. 
 210, 36 Am. St. Rep. 385; 1899, Northport, etc., Ass'n v. Perkins, 93 Maine 
 235, 74 Am. St. Rep. 342.
 
 I 1 56 NORRIS V. STAPS. 348 
 
 See. 348. 2. Power to make, 
 (a) Incidental. 
 
 HOBART, J., IN NORRIS v. STAPS. 
 c. 1625, Hobart's Rep. 211 a. 
 
 "I am of the opinion that though power to make laws is given by 
 special clause in all incorporations, yet it is needless ; for I hold it to 
 be included, by law, in the very act of incorporating, as is also the 
 power to sue, to purchase, and the like. For as reason is given to 
 the natural body for the governing of it, so the body corporate must 
 have laws, as a politic reason to govern it; but those laws must ever 
 be subject to the general law of the realm, as subordinate to it. And 
 therefore, though there be no proviso for that purpose the law sup- 
 plies it." 
 
 Note. See 1613, Button's Hospital, 10 Co. 23a., supra, 264, on 266; 1815, St. 
 Luke's Church v. Mathews, 4 Dessaus. (S. C.) 578, 6 Am. Dec. 619; 1819, 
 Commw. v. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628; 1832, Leggett v. 
 N. J. M. & B. Co., 1 Saxton Ch. (N. J.) 541, 23 Am. Dec. 728; 1834, Taylor v. 
 Griswold, 2 Green Law (N. J.) 222, 27 Am. Dec. 33; 1895, Engelhardt v. Fifth 
 Ward, etc., Ass'n, 148 N. Y. 281, 35 L. R. A. 289; 1899, Bailey v. Association 
 of Master Plumbers, 103 Tenn. 99, 46 L. R. A. 561. 
 
 Note, 85 Am. Dec. 618. 
 
 Sec. 349. Same. 
 
 (b) This power resides in the shareholders or members, 
 unless otherwise provided. 
 
 THE MORTON GRAVEL ROAD CO. v. WYSONG. 1 
 1875. IN THE SUPREME COURT OF INDIANA. 51 Ind. Rep. 4. 
 
 [Action to recover a penalty for violating a by-law regulating tolls. 
 Judgment below for plaintiff. The by-law was adopted by the direct- 
 ors, and not by the corporation at large. The statute provided : "Such 
 company may * * * make, enact, and publish any and all ordi- 
 nances and by-laws," etc.] 
 
 DOWNEY, J. This is in conformity to the statute on the subject, en- 
 entitled "An act establishing general provisions respecting corpora- 
 tions," i G. & H. 267, section 2 of which provides that "corporations 
 shall, where no other provision is specially made, be capable, in their 
 corporate name, * * * to make necessary by-laws," etc. 
 
 The power to make by-laws resides in the members of the corpora- 
 tion at large, where there is no law or valid usage to the contrary. 
 
 1 Statement abridged. Only that part of opinion relating to the one point 
 is given.
 
 350 RIGHT TO MAKE BY-LAWS. I I 57 
 
 In Angell & Ames on Corp., section 327, it is said: "Unless by 
 the charter, or some general statute to which the charter is made sub- 
 ject, or by immemorial usage, this power is delegated to particular 
 officers or members of the corporation, like every other incidental 
 power, it resides in the members of the corporation at large, to be 
 exercised by them in the same manner in which the charter may direct 
 them to exercise other powers or transact their general business, and 
 if the charter contain no such direction, to be exercised according 
 to the rules of the common law," etc. We must, therefore, treat the 
 by-law in question as invalid, and as having nothing to do with {he 
 question to be decided. * * * 
 
 Judgment reversed. 
 
 Note. See, also, 1827, Union Bank v. Ridgley, 1 Har. & G. (Md.) 324; 1868, 
 Stevens v. Davison, 18 Gratt. (Va.) 819, 98 Am. Dec. 692; 1873, People v. 
 Crossley, 69 111. 195; 1880, Carroll v. Mullanphy Sav. Bank, 8 Mo. App. 249; 
 1887, State Savings Assn. v. N. J. P. Co., 25 Mo. App. 642; 1893, Brinker- 
 hoff-Farris, etc., Co. v. Lumber Co., 118 Mo. 447, infra, p. 1162; 1899, North 
 Milwaukee T. S. Co. v. Bishop, 103 Wis. 492, 45 L. R. A. 174; note 85 Am. 
 Dec. 618. 
 
 But the shareholders may delegate authority to make by-laws to the direct- 
 ors, or the statute or charter may authorize them to do so: 1845, Cahill v. K. 
 M. I. Co., 2 Douglass (Miss.) 124, 43 Am. Deo. 457; 1875, Spurlock v. Pacific 
 R., 61 Mo. 326. 
 
 Sec. 350. (c) Limits on power to make. 
 I . Forfeitures. 
 
 IN THE MATTER OF THE ELECTION OP DIRECTORS OF THE LONG ISLAND 
 
 R. R. CO. 1 . 
 
 1837. IN THE SUPREME COURT OF NEW YORK. 19 Wendell's 
 (N. Y.) Rep. 37-45. 3 2 Am - D - 4 2 9- 
 
 [Motion to set aside an election, for refusing to permit Edwin Lord 
 vote 1 200 shares of stock, for the reason "that the stock had already 
 been declared forfeited for default in payment of the calls." If these 
 shares had been voted the result of the election might have been 
 changed. The forfeiture was declared under a by-law enacted for that 
 purpose.] 
 
 NELSON. C. J. * * * The corporation possess the power to make 
 by-laws not inconsistent -with any existing law , for the management of 
 its property, the regulation of its affairs, and for the transfer of stock. 
 (2 R. S. 602, i, sub. 6. This is the broadest general power con- 
 ferred upon it; but it is not new, and would have existed as inci- 
 dental. When taken as incidental it must be exercised in conformity 
 to the general law of the land, that being the rule to regulate the pro- 
 ceedings of artificial bodies, as well as the conduct of natural per- 
 sons, independently of express provisions of the charters of those 
 
 a Only so much of opinion as relates to the one point is given.
 
 1158 DIRECTORS OF THE LONG ISLAND R. R. CO. 350 
 
 companies to the contrary. This general law has ascertained the 
 rights of person and of property of the citizen, and established modes 
 of proceeding in case of a violation of them ; and corporate bodies 
 must conform to them, in seeking redress, the same as individuals. 
 The former can no more take the remedy into their own hands than 
 can the latter. So strict has this salutary principle of subjection been 
 held in England, that even a by-law in pursuance of an express power 
 in a charter granted by the king, is void, if contrary to the common 
 law or act of parliament, (i KydonCorp., 109; Willcock on Corp., 
 95; Angel & Ames, 186; 8 Co. 125, a, 127, b; 2 Inst. 47; i T. R. 
 118.) Thus a by-law imposing a forfeiture of goods is void, though 
 the letters patent authorized it ; and a power granted to a corporation 
 of dyers to search, and if they found cloth dyed with logwood, to 
 seize it as forfeited, was adjudged void as contrary to magna charta. 
 
 On the same principle, by-laws in restraint of trade are adjudged 
 void, (n Co. 53; i Burr. 12; 4 Burr. 1951; 7 Dowl. & Ryl. 601 ; 
 i Bacon's Abr. 547; Angel & Ames, 184; Willcock, 142.) So a 
 by-law that may be lawful can not be enforced by an extraordinary 
 penalty, such as imprisonment or forfeiture of goods, or by distress 
 and sale of goods, for, by the general law of the kingdom, no man is 
 to be imprisoned, or dispossessed of his goods and chattels nisi per 
 legale judicium parium suorum, vel per legem terrce: and if such 
 penalties were allowed, corporations would be enabled to set up pri- 
 vate particular laws in contradiction to the laws of the land, which is 
 against the nature and essence of a by-law. (Clark's Case, 5 Co. 
 64; 3 Salk. 76; Willcock, 98; i Bacon's Abr. 551.) Even an act 
 of parliament does not by implication invest the corporation with any 
 extraordinary authority; and if it is intended to be given, it must be 
 by express words to that effect. In Kirk v. Nowill (i T. R. 118), 
 which was an action of trespass for seizing and taking a quantity of 
 forks, the defendant justified under an act of parliament incorporating 
 the inhabitants of the Liberty of H. into a company of cutlers, and 
 under a by-law of the company. The act authorized the adoption of 
 such by-laws as appertained to good regulation and workmanship in 
 the manufacturing of cutlery wares, with power to impose reasonable 
 pains, penalties and punishment, by fine or amercement, in case of 
 violation, and which was to be levied to the use of the corporation 
 for the benefit of the poor. The company ordained that the search- 
 ers (officers recognized in the act) should search for unworkmanlike 
 wares, and seize, carry away and destroy the same. The property 
 was seized under and by virtue of this by-law. 
 
 Lord Mansfield observed that a corporation in the definition of it, 
 is a creature of the crown, created by letters patent ; that such a cor- 
 poration, with the power of making by-laws, can not make any such 
 law to incur a forfeiture ; that those corporations which are created 
 by act of parliament have no other additional powers incident to them 
 than those have which are created by charters, unless they be expressly 
 given, and that no such extraordinary power of making by-laws to in- 
 cur a forfeiture, appearing upon the plea to have been conferred, it
 
 35! RIGHT TO MAKE BY-LAWS. 1 1 59 
 
 was impossible for the court to say that the by-law in that case could 
 be supported by the act. Buller, J., remarked, that taking it gen- 
 erally as a by-law creating a forfeiture, the act of parliament not hav- 
 ing given the corporation the power to make such a by-law, it was 
 bad on that ground. In all the cases where his power to declare a 
 forfeiture of stock as expressly given by the charter has been inci- 
 dentally noticed by the courts, it has been regarded as a new and 
 cumulative remedy to the one existing at common law. (i Caines* 
 Cas. in Error, 8^; i Caines, 389, Radcliff, J. ; 9 Johns. R. 218; 6 
 Mass. R. 40; 2 Bibb, 576.) This has also been the understanding 
 of the legislature, for, on examination, it will be found that the power 
 has been usually conferred by an express provision in the charters, 
 from the earliest period down to the present time. Upon the whole, 
 I am entirely satisfied the directors possessed no authority under the 
 charter to declare a forfeiture of the stock; that their acts in this re- 
 spect were wholly void, and left the rights of the stockholders in full 
 force, and that the sales which were made, and attempted transfers of 
 the supposed forfeited shares, passed no title to or interest in them to 
 the purchasers. * * * 
 
 Election set aside. 
 
 Note. 1887, Budd v. Multnomah St. R. Co., 15 Ore. 413, 3 Am. St. Rep. 
 169, infra, p. 1669; 1892, Gemmel v. Davis, 75 Md. 546, 32 Ain. St. Rep. 412; 
 1894, Morris v. Mettalline L. Co., 164 Pa. St. 326, 44 Am. St. Rep. 614; 1897, 
 Elizabeth City Cotton Mills v. Dunstan, 121 N. C. 12, 61 Am. St. Rep. 654, 
 holding that "a corporation may be empowered to provide by its by-laws for 
 forfeiture of shares for non-payment, and if reasonable, it will be enforced." 
 
 See notes, 68 Am. Dec. 88; 43 Am. St. Rep. 156; 61 Am. St. Rep. 656. 
 
 On the general subject of forfeiture, and sale of stock for non-payment, 
 see, 1821, Franklin Glass Co. v. Alexander, 2 N. H. 380, 9 Am. Dec. 92, note 
 97; 1843, Selma & Tenn. R. Co. v. Tipton, 5 Ala. 787, 39 Am. Dec. 344; 1850, 
 Hightower v. Thornton, 8 Ga. 486, 52 Am. Dec. 412; 1855, New Hampshire 
 R. v. Johnson, 30 N. H. 390, 64 Am. Dec. 300, n. 308; 1860, Leevey's Island 
 R. Co. v. Bolton, 48 Maine 451, 77 Am. Dec. 236; 1869, Germantown, etc., R. 
 Co. v. Fitler, 60 Pa. St. Rep. 124, 100 Am. Dec. 546, and note; 1893, Carpen- 
 ter v. Am. Bldg. Ass'n, 54 Minn. 403, 40 Am. St. Rep. 345, note 348. 
 
 Sec. 351. Same. 
 
 2. Transfers. 
 THE VICTOR G. BLOEDE CO v. VICTOR G. BLOEDE. 1 
 
 1896. IN THE COURT OF APPEALS OF MARYLAND. 84 Md. Rep. 
 129-142, 57 Am. St. R. 373. 
 
 Appeal by the company from a decree ordering it to transfer nine 
 shares of stock to appellee, plaintiff below, standing in name of Y. 
 
 A by-law of the defendant corporation provided that if any stock- 
 holder should desire to dispose of his stock, he shall, before a trans- 
 
 1 Statement of facts taken from syllabus. Only that part of opinion given 
 relating to validity of by-law.
 
 II6O VICTOR G. BLOEDE CO. V. VICTOR G. BLOEDE. 35 1 
 
 fer, notify the president of his intention to sell and of the price he can 
 obtain, which notice shall be communicated to the other stockholders, 
 who shall have the option to purchase the stock at the price named, 
 in pro rata amounts, and the corporation shall have the right to take 
 any such stock not taken by the shareholders. A large number of 
 shares were originally issued to plaintiff for value. He afterwards 
 caused some of the shares to be transferred to other parties, including 
 a certificate for nine shares made out in the name of Y. Plaintiff al- 
 leged that the certificate was so made out in order to give Y. an op- 
 portunity to purchase them if he wished, while defendant alleged that it 
 was done in pursuance of an agreement between plaintiff and the 
 other chief owner of the stock that neither of them should own a ma- 
 jority of the shares. This allegation of the defendant w r as held not to 
 be established by proof. Y. refused to accept or pay for the shares 
 made out in his name, and assigned the certificate to the plaintiff, who 
 demanded a transfer of the same back to himself. The defendant re- 
 fused to make the transfer. 
 
 McSnERRY, C. J. * * * But the by-law itself can, when invoked by 
 the company, interpose no obstacle to the transfer of these shares for 
 the reas'on that it is invalid. It is an unreasonable and a palpable re- 
 straint upon the alienation of property. As a general rule stockhold- 
 ers indisputably have the right to sell their shares at pleasure. Tris- 
 coni v. Winship, 43 La. Ann. 45. That the power to regulate 
 transfers of stock does not include authority to control its transfera- 
 bility by prescribing to whom the owner may sell and to whom not, 
 or upon what terms ; and that the mere power to regulate transfers 
 does not authorize a refusal to allow a transfer of shares to even an 
 insolvent is decided in Chouteau Spring Co. v. Harris, 20 Mo. 383. 
 And so a by-law pi'ohibiting the alienation of shares of stock or im- 
 posing any restrictions on its exercise is declared to be in restraint of 
 trade and against public policy and void in Moore v. Bank of Com- 
 merce, 52 Mo. 377; Re Klaus, 67 Wis. 401; Brinkerhoff Farris 
 Trust & Sav. Co. v. Home Lumber Co., 118 Mo. 447; Feckheimer 
 v. Nat. Ex. Bk. of Norfolk, 79 Va. 80. And in Am. Nat. Bk. 
 v. Oriental Mills, 17 R. I. 551, in considering a similar by-law it was 
 held, without passing on its validity, that no one but the stockholders 
 could take advantage of the non-compliance with the by-law, and 
 that they had the power to waive it. And in Ireland v. Globe Milling 
 and Reducing Co., 19 R. I. 100, 29 L. R. A. 429, it was decided 
 that a by-law giving the corporation the first right to purchase stock 
 which is for sale by any of its members, is not valid under a statute 
 specifying several subjects upon which by-laws may be enacted, but 
 making no reference to the question of stock-transfers. See, also, 
 Farmers' Bk. v. Wasson, 48 Iowa 339 ; Sargent v. Franklin Ins. Co., 
 8 Pick. 90. 
 
 The cases in 36 Md. 491, and 48 Md. 473, and others cited are 
 distinguishable, for there the invalidity relied on by the stockholders 
 was invoked to defeat the claim of a creditor.
 
 352 RIGHT TO MAKE BY-LAWS. Il6l 
 
 As we shall affirm the decree appealed from, we have not thought 
 it worth while to consider the motion made to dismiss the appeal. 
 Decree affirmed -with costs above and belou'. 
 
 Note. See, 1829, Sargent v. Franklin Ins. Co., 8 Pick. 90, 19 Am. Dec. 306; 
 1878, Farmers', etc., Bank v. Wasson, 48 Iowa 336, SO Am. Rep. 398; 1893, 
 Bank of Atchison v. Durfee, 118 Mo. 431, 40 Am. St. Rep. 396; 1893, Trust 
 and Savings Co. v. Home Lumber Co., 118 Mo. 447 ; 1894, New England Trust 
 o. v. Abbott, 162 Mass. 148, 27 L. R. A. 271 , and note ; 1895, Ireland v. Globe 
 Milling, etc., Co., 19 R. I. 180, 61 Am. St. Rep. 756, 29 L. R. A. 429; 1897, 
 McNulta v. Corn Belt Bank, 164 111. 427, 56 Am. St. Rep. 203; 1898, Ireland 
 v. Globe Milling Co., 20 R. I. 192, 38 L. R. A. 299, 8 A. & E. C. C. N. S. 136, 
 n. p. 141. 
 
 See note to Brinkerhoff-Farris Trust, etc., Co. v. Lumber Co., 118 Mo. 447, 
 infra, p. 1162, and note, 57 Am. St. Rep. 379, 384. 
 
 Sec. 352. Same. 
 
 3. Liens. 
 
 CHILD VERSUS HUDSON'S BAY COMPANY. 1 
 
 1723. IN THE HIGH COURT OF CHANCERY. 2 Peere Williams Re- 
 ports 207209. 
 
 Sir Stephen Evans was one of the proprietors of the stock of the 
 Hudson 's Bay Company, which company are made a corporation by 
 charter, and are thereby empowered to make by-laws for the better 
 government of the company, and for the management and direction 
 of their trade to Hudson's Bay. 
 
 Accordingly they made a by-law, that if any of their members 
 should be indebted to the company, his stock in the. company should 
 be in the first place liable to the debts which such member should owe 
 the company, and that the company might seize and detain the said 
 stock for the debts due to them. 
 
 [Evans became bankrupt, and his assignees brought a bill against 
 the company asking for an accounting of the profits and dividends on 
 Evans's stock ; the company insisted that Evans was indebted to them, 
 and that his stock ought to be liable to pay the debt. It was argued 
 for the plaintiffs that the stock or its proceeds should not be made 
 specially liable to pay any one debt, but should be applied to all, and 
 that no by-law could be made in this way to the prejudice of any third 
 person. The debt of Evans was not direct to the company, but to 
 J. S. in trust for the company, upon an insurance project of that com- 
 pany.] 
 
 MACCLESFIELD, L. C. This is a good by-law, for the legal interest 
 of all the stock is in the company, who are trustees for the several 
 members, and may order that the dividends to be made shall be under 
 particular restrictions, or terms; and by the same reason that this by- 
 law is objected to, the common by-laws of companies, to deduct the 
 
 1 Statement of facts abridged.
 
 Il62 BRINKERHOFF-FARRIS CO. V. HOME, ETC., CO. 353 
 
 calls out of the stocks of the members refusing to pay their calls, may 
 be said to be void. 
 
 As to the other part of the by-law, empowering the company to de- 
 tain and seize the stock of such member, that is also good ; but then 
 there ought to be some acts done by the company, to order or declare, 
 that the stock of such member is seized for the debt due to the said 
 company ; but this being a by-law, to the prejudice of other creditors, 
 it shall be taken strictly, and not to extend to such debt as the mem- 
 ber does not owe in law, but only in equity, and in the present case 
 this is in law a debt due to J. S. 
 
 A corporation has an implied power to make by-laws ; but where 
 the charter gives the company a power to make by-laws, they can only 
 make them in such cases as they are enabled to do by the charter, for 
 such power given by the charter implies a negative, that they shall 
 not make by-laws in any other cases. 
 
 Thus, where the company, in the principal case, have a power given 
 them by the charter to make by-laws for the management of their 
 trade to Hudson 's ay, this power implies a negative, that they can 
 not make any other by-laws ; a fortiori they can not make by-laws 
 in relation to projects and insurances, which by act of parliament are 
 declared to be illegal. 
 
 Note. See note next case. 
 
 Sec. 353. Same. 
 
 BRINKERHOFF-FARRIS TRUST AND SAVINGS CO. v. HOME LUMBER 
 
 COMPANY, APPELLANT. 1 
 
 1893. IN THE SUPREME COURT OF MISSOURI. 118 Missouri Rep. 
 
 .447-463. 
 
 [In 1888 the Trust Company loaned Cleland $13,000, and accepted 
 as collateral security two certificates of stock of par value of $5,000 
 each in the lumber company, transferable only on the books of the com- 
 pany upon surrender of the certificates. Cleland having made default, 
 the trust company sold the stock, and through its president became 
 purchaser, and afterward presented the certificates for transfer on the 
 books of the lumber company; this was refused because Cleland was 
 indebted to the lumber company and it, by virtue of its by-laws, claimed 
 a lien on the stock. The trust company claimed it had no notice of 
 such by-law, and it was therefore void as to it. The by-law pro- 
 vided "any transfer of stock shall be subject to the lien of the com- 
 pany thereon for any indebtedness due the company from the holder."] 
 
 GANTT, P. J. * * * The court found the issue in favor of the 
 plaintiff and assessed the damages at the par value of the stock and 
 interest from date of demand. Motions for a new trial and in arrest 
 were duly made and overruled and exceptions were duly taken to the 
 admission and exclusion of evidence and giving and refusing instruc- 
 tions, and the case is brought to this court by appeal. 
 
 1 Statement abridged. Arguments omitted. Only part of opinion given.
 
 353 RIGHT TO MAKE BY-LAWS. 1163 
 
 i . The defendant is a business corporation organized and existing 
 under the provisions of article 8, chapter 21, of Revised Statutes of 
 1879, and the general provision of article i, of said chapter 21, so 
 far as applicable. 
 
 By section 709, Revised Statutes 1879, the directors of a corpora- 
 tion like this are only empowered to make "by-laws to direct the 
 manner of taking the votes of stockholders on the question of increas- 
 ing or diminishing the number of directors or trustees, or of changing 
 the corporate name." The power to make all other needful or neces- 
 sary by-laws is conferred upon the corporation itself, and can only be 
 exercised by the stockholders. Rex v. Westwood, 7 Bing. i ; Bank 
 v. Bank, 17 Mass. 33; Carroll v. Bank, 8 Mo. App. 249; State 
 Savings Association v. Printing Co., 25 Mo. App. 642; Albers v. 
 Merchants' Exchange, 39 Mo. App. 583. 
 
 It was very clearly pointed out by Judge Hayden in Carroll v. Bank, 
 supra, that in the cases of Mechanics' Bank v. Merchants' Bank, 45 
 Mo. 513, and Ins. Co. v. Goodfellow, 9 Mo. 149, and Spurlock v. 
 Railroad, 61 Mo. 326, the directors in each case received their au- 
 thority to make the by-laws in question in those cases directly from 
 the legislature. 
 
 It is very clear that the attempt of the directors of the defendant 
 company to adopt the by-laws, restricting the rights of its stockhold- 
 ers to convey their stock to any one until the said directors had re- 
 fused to purchase it or while indebted to the corporation, was without 
 warrant or authority of law, and as such is not binding, either on the 
 stockholders or those purchasing from them. The company itself 
 had no right to pass such a by-law. Moore v. Bank, 52 Mo. 377. 
 
 But it is claimed by appellant that the so-called by-law and the 
 resolution, although not valid as a by-law, is nevertheless binding as 
 a valid agreement on all who were parties to it, and that, as Mr. Cle- 
 land was then the president of defendant and a director, he was bound 
 by it, and that plaintiff, as a purchaser from Cleland, took only an 
 equity, and was chargeable with notice of this lien, asserted by de- 
 fendant, and that all [as] the certificates of stock are not negotiable 
 papers, plaintiff can not occupy the position of an innocent purchaser 
 for value and without notice. * * * 
 
 The spirit of all modern legislation is opposed to secret liens. At 
 common law a corporation has no lien on the stock of its stockholders 
 for any indebtedness to it. Accordingly, when such a lien is asserted, 
 it should clearly appear to be authorized by public law, or by a duly 
 adopted by-law, or valid agreement, of which the purchasers of the 
 stock have notice. None of these conditions existed as to the stock 
 in suit when it was transferred as security for plaintiff's loan, and 
 consequently plaintiff took it without being bound by so-called by-law 
 and resolution. 
 
 By section 739, Revised Statutes 1879, this stock was expressly de- 
 clared to be personal estate and transferable in the manner pre- 
 scribed by the by-laws, and no shares should be transfcred until all 
 previous calls thereon should be fully paid. The only restriction on
 
 Il64 BRINKERHOFF-FARRIS CO. V. HOME, ETC., CO. 353 
 
 the transfer by this section is upon the stock which was not fully paid 
 up ; a restriction not applicable here, because this stock was fully 
 paid up in the beginning. The purpose of permitting the company 
 to require a transfer on the books was clearly to advise the company 
 of the change of ownership in order that only the owners of the stock 
 should participate in the corporate election, and to enable the corpo- 
 ration to pay dividends without risk, or make assessments upon the 
 holders of its stock, but certainly it was not intended that under this 
 power to regulate transfers, the company should create or reserve a 
 secret lien upon the stock. Without reference to its ^^a^z'-negotiable 
 character, the pledge or sale of this stock was simply a pledge or sale 
 of personal property, and the pledgee or vendee, without notice of 
 the lien, took it discharged therefrom. He did. not purchase a mere 
 equity in paper, but he purchased personal property. If that property 
 was bound by a lien of which he had lawful notice, he took subject 
 to it, and if he had no such notice he took it discharged therefrom. 
 The mere recital that "it was only transferable on the books of the 
 company" was not notice, either of a restriction on sale, or of a lien 
 thereon. * * * 
 
 [Upon the question of value, the court held the measure of damages 
 for conversion is its actual value, which, if it has no market value, is 
 presumptively its face value, but may be established by proof of its 
 dividend-earning capacity (though an expert's opinion on this point 
 is not competent), or by value of corporate assets, or by individual 
 sales not under compulsion.] 
 
 Affirmed. 
 
 Note. By the weight of authority valid liens upon shares can not be created 
 by by-law alone, so as to prevent the transfer of the shares, divested of the lien, 
 to persons having no notice of such lien : 1825, Fitzhugh v. Bank, 3 T. B. Mon. 
 (Ky.) 126, 16 Am. Dec. 90, note; 1829, Sargent v. Franklin Ins. Co., 8 Pick. 
 90/19 Am. Dec. 306; 1878, Farmers', etc., Bank v. Wasson, 48 Iowa 336, 30 
 Am. R. 398; 1880, Bank of Holly Springs v. Pinson, 58 Miss. 421, 38 Am. R. 
 330; 1892, Gemmel v. Davis, 75 Md. 546, 32 Am. St. R. 412, note; 1893, Bank 
 of Atchison Co. v. Durfee, 118 Mo. 431, 40 Am. St. R. 396; 1896, Bloede Co. 
 v. Bloede, 84 Md. 129. 57 Am. St. R. 373, note 379, supra, p. 1159; 1897, Boyd 
 v. Redd, 120 N. C. 335, 58 Am. St. R. 792; 1898, Dorr v. Life, 71 Minn. 38, 70 
 Am. St. R. 309. See also notes 11 Am. Dec. 581, 85 Am. Dec. 619, 57 Am. 
 St. R. 379. 
 
 Contra, 1822, Morgan v. Bank, 8 Serg. & R. 73, 11 Am. Dec. 575; 1870, 
 Mechanics' Bank v. Merchants' Bank, 45 Mo. 513, 100 Am. Dec. 388. See 
 also cases given in notes 11 Am. Dec. 581, and 85 Am. Dec. 619. 
 
 Such valid lien, however, may be created by express statutory or charter 
 provision or authority. 1859, Reese v. Bank, 14 Md. 271, 74 Am. Dec. 536; 
 1896, Bloede Co. v. Bloede, 84 Md. 129, 57 Am. St. R. 373, note 379; 1898. 
 Dorr v. Life, 71 Minn. 38, 70 Am. St. R. 309. 
 
 Or by contract contained in the certificate of stock: 1899, Stafford v. Pro- 
 duce Exchange Banking Co., 61 O. S. 160, 76 Am. St. Rep. 371.
 
 354 RIGHT TO MAKE BY-LAWS. 1 165 
 
 Sec. 354. Same. 
 
 4. Expulsion of members. 
 
 EVANS v. THE PHILADELPHIA CLUB. 1 
 
 1865. IN THE SUPREME COURT OF PENNSYLVANIA. 50 Pa. St. 
 
 Rep. 107-127. 
 
 Certificate from the court at A T isi Prius. Evans petitioned for 
 mandamus to be restored to membership in the club, claiming to have 
 been expelled for an insufficient cause. The decision of the court at 
 Nisi Prius was delivered by WOODWARD, C. J., as follows: 
 
 "This case touches the power of a private corporation to disfran- 
 chise one of its members, and it will be necessary and proper to ex- 
 amine, somewhat minutely, the authorities of the law bearing upon 
 the point. 
 
 "The leading case upon this branch of law is that of James Bagg, 
 decided in the reign of James I (A. D. 1616), and reported in Coke's 
 Reports, part xi, p. 93. Bagg was one of twelve chief burgesses 
 of the borough of Plymouth, in England, and having been guilty of 
 the most scandalous and disorderly speeches to the mayor and his fel- 
 low burgesses, was expelled, but the King's Bench restored him by 
 mandamus. Among other things it was resolved, 'That no freeman 
 of any corporation can be disfranchised by the corporation, unless they 
 have authority to do it, either by the express words of the charter or 
 by prescription ; but if they have not authority, neither by charter nor 
 prescription, then he ought to be convicted by course of law before he 
 can be removed.' And in support of this, Lord Coke quotes that 
 famous clause of Magna Charta, beginning 'Nullus liber homo* etc. 
 
 "Though much was said about disfranchisement in Bagg's case, it 
 was really a case of amotion, and not of disfranchisement. Bagg 
 was removed from the office of burgess, and not expelled from the 
 borough by the action of the corporation. Mr. Willcock, in his ex- 
 cellent treatise on Corporations, page 270, defines amotion as applica- 
 ble only to officers, and says it causers a cessation of the particular of- 
 fices from which they are amoved, but in no manner affects their 
 right to the freedom of the municipality ; whilst disfranchisement is 
 applicable only to the freedom, and cuts off the corporator from all 
 rights and privileges of the corporation. It appears, he says, that 
 there is not an incidental right in corporations to disfranchise their 
 members, but it must be claimed by prescription or express grant of 
 the charter. For this he refers himself to Bagg's case, which, he says, 
 has never been expressly overruled ; the cases in which it has been 
 questioned having been cases of amotion. He then goes on to make 
 some general observations on the subject, all of which are so excel- 
 lent, and some of which are so pertinent to the case in hand, that I 
 am tempted to transcribe them. He says: 'At the time when James 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 Il66 EVANS V. THE PHILADELPHIA CLUB. 354 
 
 Bagg's case was before the court, their attention had been rarely at- 
 tracted to the consideration of corporate causes, and the distinction 
 between the right to the offices and the right to the freedom of a 
 municipality had been little considered. The particular case was of 
 amotion from office ; the arguments were in general more applicable 
 to disfranchisement. But there is a material difference in principle. 
 The enjoyment of office is not for the private benefit of the corpora- 
 tor, but an honorable distinction which he holds for the welfare of 
 the corporation, and therefore, though it be an office of a freehold 
 nature, it is entirely conditional. * * * But the franchise of a 
 freeman is wholly for his own benefit, and a private right; a right in 
 the municipality similar to that of a natural subject in the state, of 
 which he ought not to be deprived for any minor offense against his 
 corporate fealty, any more than that for which, as a subject, he ought 
 to be deprived of his franchise as a liegeman. For this reason, all 
 minor corporate offenses, such as improper behavior to his fellcnv- 
 corporators, where not punishable by the general law of the land, as 
 well as violations of his corporate duties, ought to be punished by 
 penalties imposed by the ordinances of the municipality, and not by 
 disfranchisement. But such offenses against the general law as occa- 
 sion a forfeiture of all civil rights, import in themselves a forfeiture 
 of the corporate franchise ; and offenses against the corporation which 
 tend to its destruction, such as defacing the charters, altering the cor- 
 porate records so as to destroy the evidence of their title to privileges, 
 or that of the title of his fellow-corporators to their franchises, are of 
 course causes of disfranchisement.' 
 
 "These observations relate to municipal corporations; but why are 
 they not equally applicable to private corporations? The interest or 
 'freedom' which a member has in a private corporation is as truly a 
 'franchise' as that which any of the burgesses mentioned in Bagg's 
 case had in the borough of Plymouth, and may often be a much more 
 valuable franchise. Where it has been obtained by the payment of a 
 pecuniary consideration, and property is held in connection with it, it 
 is a vested estate, and certainly ought not to be sacrificed on account 
 of minor offenses, which would not be permitted to forfeit individual 
 interests in a municipal corporation. And if a power to disfranchise 
 in a municipal corporation does not exist unless expressly granted, it 
 is very safe to conclude that it is not inherent in a private corporation, 
 and must have an express grant to support it. 
 
 "The extent to which Bagg's case has been overruled is clearly in- 
 dicated in Lord Bruce's Case, 2 Strange 819, which was a case of 
 amotion, not disfranchisement, and where it was said 'the modern 
 opinion has been that a power of amotion is incident to the corpora- 
 tion, though Bagg's case seems contrary.' Richardson's Case, i Burr. 
 517, was amotion from a municipal office that of portman of the 
 borough of Ipswich. Lord Mansfield went very fully into the law of 
 corporations, and whilst the amotion was not sustained, he sanctioned, 
 very distinctly, the 'modern opinion' referred to in Lord Bruce's case,
 
 354 RIGHT TO MAKE BY-LAWS. 1167 
 
 and stated three sorts of offenses for which an officer or a corporator 
 may be discharged: 
 
 " 'i. Such as have no immediate relation to his office; but are in 
 themselves of so infamous a nature as to render the offender unfit to 
 execute any public franchise. 
 
 " '2. Such as are only against his oath and the duty of his office as 
 a corporator, and amount to breaches of the tacit condition annexed to 
 his franchise or office. 
 
 " '3. Such as are of a mixed nature, as being an offense not only 
 against the duty of his office, but also a matter indictable at common 
 law.' 
 
 "Of these distinctions, limited originally to municipal corporations, 
 I shall have something to say hereafter, when I come to speak of them 
 in connection with private corporations. 
 
 "In Earle's Case, Carthew 173, it was held that a member of a 
 corporation can not be disfranchised except for that which works to 
 the destruction of the body corporate, or of the liberties and privileges 
 thereof, and not for any personal offense of one member to another. 
 
 "Tidderly's Case, i Siderfin 14, was a question of restoring a mu- 
 nicipal officer who had voluntarily resigned, and Chief Justice Hale 
 held that every corporation had power to receive a resignation, and 
 might, for good cause, amove. 
 
 "These cases are sufficient to reflect the opinion of the English 
 courts on Bagg's case. A more full reference to the authorities will 
 be found in the notes to Willcock's chapter on disfranchisement, in 
 his work on Corporations. The result seems to be that the resolu- 
 tion I quoted from Bagg's case has been so far modified that the 
 power of amotion is inherent in the nature of corporations and not 
 dependent upon prescription or charter, but the authorities do not 
 establish the point that corporations have inherent power to disfran- 
 chise a private member. But Bagg's case is an authority against the 
 power of disfranchisement no farther than the reasonings therein are 
 entitled to respect, for the point of the case had not reference either 
 to private corporations or the power of disfranchisement. Whilst, 
 therefore, the very point of the case may be regarded as overruled, 
 the reasonings, as expounded by Mr. Willcock, are such as to com- 
 mend them to universal acceptance. Where corporations are founded 
 upon private capital, the modern English cases are very unanimous 
 in holding that no stockholder can be disfranchised, and thereby de- 
 prived of his interest in the property of the corporation, without an 
 express authority for the purpose in the charter. 
 
 "In Pennsylvania, The Commonwealth, ex rcL John Binns, v. 
 The St. Patrick Benevolent Society, 2 Binn. 441, is the leading case. 
 The society, under a power conferred by its charter, made a by-law 
 that vilifying a member by another member should be punished as a 
 crime against the society, by removal from office, fine, or expulsion. 
 Binns having been convicted of grossly vilifying a fellow-member, 
 was expelled therefor under this by-law. The supreme court restored 
 him upon mandamus, mainly on the ground that the by-law was not 

 
 Il68 EVANS V. THE PHILADELPHIA CLUB. 354 
 
 necessary for the good government and support of the affairs of the 
 corporation that it subjected the rights of membership to the uncer- 
 tain will of a majority that 'the offense of vilifying a member, on a 
 private quarrel, is totally unconnected with the affairs of the society, 
 and therefore its punishment can not be necessary for the good gov- 
 ernment of the corporation.' Chief Justice Tilghmah, delivering the 
 opinion of the court, quoted Lord Mansfield's three sorts of offenses 
 as laid down in Richardson's case, and said Binn's offense did not 
 come within either of them, and he concluded by declaring that 
 'without an express power in the charter, no man can be disfranchised 
 unless he has been guilty of some offense which either affects the in- 
 terest or good government of the corporation, or is indictable by the 
 law of the land.' 
 
 "In Fuller v. The Trustees of the Plainfield Academy, 6 Conn. 
 532, Judge Dagget alluded to the doctrine that a power of amotion 
 is incidental to corporations, but seemed to doubt whether it was ap- 
 plicable to any but municipal corporations, and quoted Judge Story 
 as saying in the Dartmouth College case that there could be no amo- 
 tion of the trustees of that institution, and he restored the trustee of 
 the Plainfield Academy, who had been expelled for disrespectful and 
 contemptuous language towards his associates, and for neglect of duty 
 as a trustee. 'The court,' he said, 'can not justify expulsion from 
 office on such charges. What the trustee might have done to one of 
 their number who had committed a crime which would banish him 
 from society, it is not necessary to decide.' Another principle was 
 asserted in this case, that the place of a trustee in an eleemosynary 
 corporation, though no emoluments are attached to it, is a franchise 
 of such a nature that a person improperly dispossessed of it is enti- 
 tled to redress by mandamus. See also Dartmouth College v. Wood- 
 ward, 4 Wheat. 676. 
 
 "In the case of Gray v. The Medical Society of Erie, 24 Barb. 
 570, a physician was asking to be restored to a society from which he 
 had been expelled for violating a by-law that prescribed a tariff of 
 fees for medical services. The supreme court of New York went 
 very fully into the authorities upon corporate powers, and held that 
 the power given to medical societies by statute to make by-laws and 
 regulations relative to the admission and expulsion of members, was 
 not an arbitrary or unlimited power, and that a by-law must be reason- 
 able, and adapted to the purposes of the corporation. 
 
 "In the case of The Commonwealth v. Philanthropic Society, 5 
 Binn. 486, we have in our own courts what is very rare in the author- 
 ities, an instance of expulsion that was sustained. A member made 
 a demand upon the society for relief agreeably to the rules of the in- 
 stitution, and presented a physician's bill which he had altered from 
 $4 to $40, and which he claimed to have paid. Upon the ground 
 that this was a scandalous crime, amounting almost, if not quite, to 
 technical forgery, and that it was directly injurious to the society, his 
 expulsion was supported. 
 
 "In The Commonwealth v. The Franklin Beneficial Association,
 
 354 RIGHT TO MAKE BY-LAWS. I J09 
 
 10 Barr 357, a member was restored who had been expelled for enlist- 
 ing in a violation of a by-law of the society. 
 
 "In The Commonwealth v. The German Society, 3 Harris 251, a 
 society for 'mutual support and assistance,' the cause of disfranchise- 
 ment was that the member had assisted, as president of the society, 
 in defrauding it out of fifty cents, and had defamed and injured the 
 society in public taverns. It was held not to be a sufficient cause, 
 and he was restored. 
 
 "When the charter of the Butchers' Beneficial Association was 
 presented to our supreme court, it was rejected on the ground, among 
 others, that it allowed the association to expel members who should 
 be 'guilty of actions which may injure the association.' This, said 
 the chief justice, we can not approve ; for it gives the association an 
 entirely indefinite power over its members. For any action which 
 may injure them they may expel, and therefore they may expel a 
 member for becoming insolvent. It is totally incompatible with the 
 whole spirit of our institutions, to clothe anybody with such indefinite 
 power over its members; for it is equivalent to socialism, and is a re- 
 jection of all individual rights within the association. It is common 
 in such charters to found the right of expulsion on the fact that the 
 member has been found guilty of some crime on a trial in court, and 
 this is quite proper, n Harris 151. 
 
 "In the case of The Beneficial Association of Brotherly Unity, 2 
 Wright 299, a charter was rejected because it gave a majority the 
 power to expel any member 'guilty of an offense against the law* 
 the court holding that a constitution that puts all power over rights in 
 the hands of a majority is no constitution at all. 
 
 "Gathering now, into one group, the principles of decision that lie 
 scattered through the authorities, they may be stated thus : 
 
 "i. That the power of amotion for adequate cause, is an inherent 
 incident of all corporations, whether municipal or private, except, 
 perhaps, such as are literary or eleemosynary, but the exercise of this 
 power does not affect the private rights of the corporator in the fran- 
 chise. 
 
 "2. That the power of disfranchisement which does destroy the 
 member's franchise, must, in general, be conferred by statute, and is 
 never sustained as an incidental power, without statute grant, except 
 in two cases first, on conviction of the member in a court of justice 
 of an infamous offense; and second, where he has committed some 
 act against the society which tends to its destruction or injury. 
 
 "3. That the power to make by-laws is incidental to corporations, 
 and generally expressly conferred by statute ; but by-laws which vest 
 in a majority the power of expulsion for minor offenses, are, in so far, 
 void, and courts of justice will not sustain expulsion made under 
 them. 
 
 "4. In joint stock companies, 'or, indeed, in any corporation own- 
 ing property' (Angell & Ames on Corporations, 410), no power 
 
 74 WIL. CAS.
 
 I17O EVANS V. THE PHILADELPHIA CLUB. 354 
 
 of expulsion can be exercised unless expressly conferred by the char- 
 ter. * * * 
 
 "The 6}th, 66th and 67th by-laws enact that 'if the conduct of a 
 member be disorderly, or injurious to the interest of the club, or con- 
 trary to its by-laws, he shall be requested to resign, and if the request 
 be disregarded, the board shall refer the matter to the next stated 
 meeting of the club, and at such meeting the circumstances of the 
 case shall be considered, and the member may be expelled.' 
 
 "The relator became a member of the club in 1848, and it is not 
 alleged that he has failed to pay any of his dues, or perform any of 
 his duties to the club, but the return alleges that on 'the evening of 
 the 24th of February, 1863, the defendant was guilty of breaking the 
 65th by-law by having an altercation within the walls of the club- 
 house with Samuel B. Thomas, and by striking him a blow.' For 
 this he was expelled. * * * 
 
 "It is not alleged that the relator is a quarrelsome person or habitu- 
 ally disorderly. On the contrary, it was admitted in argument that 
 he is a respectable gentleman, and it is shown that when the offense 
 occurred he was sitting in the bar-room of the club-house in quiet and 
 friendly conversation with another person, when Thomas entered and 
 uttered defamatory words which the rejator understood to be applied 
 to himself. It was therefore an assault upon Thomas, provoked by 
 himself. It was not an interruption of any deliberations or proceed- 
 ings of the club in a state of organization it occurred not in a reading- 
 room, or an eating-room, nor at a card or billiard table, but in what 
 is called the office or bar-room of the house. 
 
 "I look upon the occurrence as disorderly and injurious to the in- 
 terest of the club, within the meaning of the 6jth by-law, but as one 
 of those 'minor offenses,' of which Mr. Willcock speaks, and for 
 which a majority have no power, even under the by-laws, to disfran- 
 chise a member. And upon the doctrine of the cases I have referred 
 to, I hold the by-law void so far as it inflicts this extreme penalty for 
 such an offense. I would be very sorry to say that anything short of 
 a statute could confer on a majority of the members of any corpora- 
 tion power to expel a fellow-member for merely disorderly con- 
 duct. * * * 
 
 "But what is conclusive of this case is, that the corporation pos- 
 sesses property, real and personal, and is at liberty to accumulate 
 'more, until an annual revenue of $3.000 comes to be enjoyed; and 
 the relator has purchased and paid for the right to participate in that 
 franchise. It is not a joint stock company at present, for under its 
 by-laws no pecuniary profits are divisible among the members, but it 
 may become so, and whether it does or not, the relator has a vested 
 interest in its estate, and can not be deprived of it by the proceedings 
 that were had against him. On this point the authorities are clear, 
 and without conflict. Nothing but an express power in the charter 
 can authorize a money corporation to throw overboard one of its 
 members. I have shown that the act of incorporation contained no 
 such power. On the contrarv, it excluded it, for the proviso reads 
 'that nothing herein contained shall be so construed as to authorize
 
 355 RIGHT TO MAKE BY-LA \VS. ll"Jl 
 
 said Philadelphia Association and Reading-Koom to do any other act 
 or acts in their corporate capacity than are herein expressed.' 
 "For these reasons a peremptory mandamus must be awarded." 
 Affirmed by an equal division of the court in bane. 
 
 Note. As to right to provide by by-laws for expulsion of members, see, 
 1810, Commonwealth v. St. Patrick's Soc., 2 Binuey (Pa.) 441 ,4 Am. Dec. 453; 
 1821, Delary v. Xeuse River Nav. Co., 1 Hawks (X. C.) 274, !) Am. Dec. 636; 
 1836, / re Phil. Sav. lust., 1 Whart. i Pa.) 461, 30 Am. Dec. 22(5; 18ft 5. IJlm-k, 
 etc., Soc. v. Vandyke, 2 Whart. 312,30 Am. Dec. 263; 1857, Austin v.Searinjr, 
 16N. Y. 112,69 Am IW. 6(i5, ( ^671 ; 1866, Society, etc., v. Commonwealth, ~>2 
 Pa. St. 125, 91 Am. Dec. 139; 1869, State v. Georgia Med. Soc., 38 Ga. 608, 95 
 Am. Dec. 408, supra, p. 136, note 140; 1871, Dickenson v. Chamber of Com., 
 29 Wis. 45, 9 Am. Rep. 544; 1872, Greerg v. Massachusetts M. Soc., 1 1 1 MU-H. 
 185, 15 Am. Rep. 24, note 27; 1888, Otto v. Journeyman, etc., Union, 75 Cal. 
 308. 7 Am. St. Rep. 156, note 160; 1890, Connelly v." Masonic, etc., Ben. Ass'n, 
 58 Conn. 552, 18 Am. St. Rep. 296; 1890, Commouwealt.i v. Union League, 135 
 Pa. St. 301, 20 Am. St. Rep. 870; 1891, Huston v. Reutlinger, 91 Ky. 333, 34 
 Am. St. Rep. 225; 1892, Am. Live Stock Co. v. Chicago L. S. Ex., 143 111. 210, 
 36 Am. St. Rep. 385, supra, p. 682; 1895, Ryan v. Cudahy, 157111. 108, 48 Am. 
 St. Rep. 305; 1896, Jackson v. South "Omaha L. S. Ex. ,'49 Neb. 687; IS'.n;, 
 Board of Trade of Chicago v. Nelson, 162 111. 431, 53 Am. St. Rep. 312; 1897, 
 Robinson v. Templar Lodge, 117 Cal. 370, 59 Am. St. Rep. 193, nofe201; 1899, 
 Weiss v. Musical, etc., Union, 189 Pa, St. 446, 69 Am. St. Rep. 820. 
 
 Mandamus is the proper remedy to reinstate: 1821, Delacy v. Neuse Riv. 
 Nav. Co., 1 Hawks (N. C.) 274, 9 Am. Dec. 636; 1836, Black, etc., Soc. v. Van- 
 dyke, 2 Whart. (Pa.) 312, 30 Am. Dec. 263; 1869, State v. Georgia Med. Soc., 
 38 Ga. 608, 95 Am. Dec. 408, supra, 136; 1888, Otto v. Journeyman Tailors', 
 etc., Union, 75 Cal. 308, 7 Am. St. Rep. 156; 1897, Robinson v. Templar Lodge, 
 117 Cal. 370, 59 Am. St. Rep. 193, note 201 ; 1899, Weiss v. Musical, etc., Union, 
 189 Pa. St. 446, 69 Am. St. Rep. 820. 
 
 The courts, however, will not generally interfere, unless there are property 
 rights involved, or for the purpose, and to the extent only, of ascertaining 
 that the proceedings were according to the rules and regulations, carried on 
 in good faith, and not in violation of the law of the land : 1857, Austin v. 
 Searing, 16 N. Y. 112, 69 Am. Dec. 665, note 671 ; 1877, Illinois, etc., Soc. v. 
 Baldwin, 86 111. 479; 1888, Otto v. Journeyman Tailors' Union, 75 Cal. 308, 7 
 Am. St. Rep. 156, note 160; 1890, Lewis v. Wilson, 121 N. Y. 284; 1890, Con- 
 nelly v. Masonic M. B. Ass'n, 58 Conn. 552, 18 Am. St. Rep. 296, note 201 ; 
 1895, Ryan v. Cudahy, 157 111. 108, 48 Am. St. Rep. 305; 1896, People v. N. 
 Y., etc., Exch., 149 N. Y. 401. 
 
 Sec. 355. 3. Validity of by-laws in general. 
 
 THE PEOPLE v. THE CHICAGO LIVE STOCK EXCHANGE. 1 
 
 1897. IN THE SUPREME COURT OF ILLINOIS. 170 111. 556-571, 62 
 Am. St. Rep. 404. 
 
 [Petition for leave to file information in nature of quo warranto 
 against the Live Stock Exchange, for assuming to enact and attempt- 
 ing to enforce without authority, a by-law prohibiting members from 
 employing trade . solicitors not members of the association, limiting 
 
 1 Statement of facts abridged. Arguments and part of opinion omitted.
 
 I 1/2 THE PEOPLE V. THE LIVE STOCK EXCHANGE. 355 
 
 the number of solicitors which may be employed by members in cer- 
 tain states, and providing that such solicitors must be paid a fixed 
 salary, and not allowed to work on commission. It was claimed the 
 by-law was in restraint of trade, and interfered with the legal rights 
 of the members. The lower court held it valid, and denied the ap- 
 plication. Appeal was taken from this judgment.] 
 
 PHILLIPS, C. J. * * * The common law refused to recognize restric- 
 tions upon trade and business among the citizens of a common country. 
 Under this rule of the common law the right of the laborer to dispose 
 of his skill and industry, and to contract in reference to the same with 
 whom he pleased and at such contract rates as might be agreed on, 
 was recognized and not allowed to be trammeled with restrictions 
 which interfered with individual action and liberty. Combinations 
 and associations of men have no right to place restrictions upon the 
 right of an individual to contract and engage in business, employing 
 such means and agencies as are not prohibited by law. The natural flow 
 of trade and commerce must be unrestricted, and men engaged therein 
 may accelerate its current by all means not unlawful. To this end 
 men engaged in trade and commerce may advertise, employ men to 
 solicit business and offer rewards and inducements to secure trade 
 without violating the law of the land, and in so doing are exercising 
 a right which is in the interest of the public, because competition can 
 not be hostile to public interests. Efforts to prevent competition and 
 to restrict individual efforts and freedom of action in trade and com- 
 merce are restrictions hostile to the public welfare, not consonant with 
 the spirit of our institutions and in violation of law. * * * 
 
 In Rex v. Wardens of the Coopers' Co., 7 T. R. 543, it was held 
 that a by-law limiting the number of apprentices which any member 
 of the company might take was void. In the case of Tailors of 
 Ipswich, ii Coke 53, a corporation known as the Tailors of Ipswich 
 enacted a by-law to prohibit any tailor from exercising his trade until 
 he had presented himself before the corporation and proved that he 
 had served seven years as an apprentice. This by-law was held void, 
 as being in restraint of trade. See, also, Gunmakers' Society v. Fell, 
 Willes 384. Sustaining the same propositions are Stanton v. Allen, 
 5 Denio 434 ; People v. Fisher, 14 Wend. 9 ; Morris Run Coal Co. 
 v. Barclay Coal Co., 68 Pa. St. 173; People, ex rel.,\. Medical 
 Society of Erie, 24 Barb. 570. 
 
 A case similar to that now under consideration was before the court 
 of appeals of Kentucky in Huston v. Reutlinger, 15 S. W. Rep. 
 857. There the Louisville Board of Underwriters passed a by-law 
 which, among other things, prohibited local companies from employ- 
 ing more than one solicitor, and regulated the manner in which the 
 salary of such solicitor was to be paid. For a violation of this by- 
 law the offending member of the board would forfeit all rights as a 
 member of the association. A local "company which had employed 
 more than one solicitor sought to enjoin the enforcement of the for- 
 feiture on the ground that the association had no authority to control 
 the members in the employment of solicitors, etc. A decree was en-
 
 $ 355 RIGHT TO MAKE BY-LAWS. 1 173 
 
 tered in accordance with the prayer of the bill, which, on appeal, was 
 affirmed, the court saying: "The majority of the members, under the 
 guise of producing harmony in this business association, have taken 
 from their individual members the right to determine how many men 
 they shall employ in their private business, and then only such as the 
 association may think fit for the position. Nor can they employ a 
 solicitor for a less period than six months, or offer a solicitor employ- 
 ment within twelve months after the solicitor has severed his connec- 
 tion with any member; are compelled to discharge those in their em- 
 ploy if they have more than one; and, if these by-laws are enforced, 
 have placed their business under the control of the majority vote of 
 the association a power the exercise of which was not given by the 
 fundamental law of the order, and doubtless not contemplated when 
 the association was formed. * * * The common law rule, recog- 
 nized and adopted when business relations were not so multiplied and 
 extensive as now and when less necessity existed for enforcing it, con- 
 demned all such restrictions upon trade and business intercourse with 
 men as is found to exist in this case. The right of one to control his 
 own property as he pleases, and to employ those necessary to aid him 
 in his business upon such terms as may be agreed upon, when not in 
 violation of the law of the land, is the rule of the common law, and 
 the right of the laborer to dispose of his skill and industry to whom 
 he pleases and for the price agreed on is embraced within the same 
 rule. In all classes of business the employer and employee should be 
 allowed to contract with each other unrestrained by others who may 
 demand that the one shall give more or the other receive less, and, as 
 a general rule, when restrictions are placed upon their rights by com- 
 binations or associations of men, they will be regarded as in violation 
 of law, and void." 
 
 When a corporation is created there goes with it the power to enact 
 by-laws for its government and guidance as well as for the guidance 
 and government of its members. This power is necessary to enable 
 a corporation to accomplish the purpose of its creation. But by-laws 
 must be reasonable and for a corporate purpose, and always within 
 charter limits. They must always be strictly subordinate to the con- 
 stitution and the general law of the land. They must not infringe 
 the policy of the state nor be hostile to public welfare. The by-law 
 in this case is a restriction on freedom of trade and business. It 
 trammels competition and prohibits an individual from contracting 
 and engaging in business, and from using such agencies and means 
 he may desire not hostile to general law. It is not required for cor- 
 porate purposes, nor is it included within the purposes declared in the 
 certificate of incorporation. It is, therefore, unlawful, as this cor- 
 poration had no right to exercise this power of enacting it under its 
 franchise. * * * 
 
 Petition should have been granted. 
 
 Reversed and remanded. 
 
 Note. Validity of by-lawn in general: They must be reasonable, not violate 
 charter, statute or common law rules, operate uniformly and not be in re-
 
 I 1/4 ' SAMUEL FLINT V. JAMES PIERCE. 356 
 
 straint of trade: 1837, Matter of L. I. R., 19 Wend. 37, 32 Am. Dec. 429; 1848, 
 Palmetto Lodge v. Hubbell, 2 Strob. (S. C. ) 457, 49 Am. Dec. 604; 1854, State 
 v. Overtoil, 4 Zabr. (N. J.) 435, 61 Am. Dec. 671; 1863, Sayre v. Louisville 
 Benev. Assn., 1 Duvall (Ky.) 143, 85 Am. Dec. 613, note 617 1887, Buddy. 
 Multnomah St. R. Co., 15 Ore. 413, 3 Am. St. Rep. 169, infra, p. 1569; 1892 
 Am. Live Stock Co. v. Chicago L. S. Ex., 143 111. 210, 36 Am. St. Rep. 385; 
 1895, Durkee v. People, 155 111. 354, 46 Am. St. Rep. 340; 1897, McNulta v. 
 Corn Belt Bank, 164 111. 427, 56 Am. St. Rep. 203; 1897, People v. Chicago, 
 etc., Exchange, 170 111.556,62 Am. St. Rep. 404, supra, p. 1171 ; 1897, Wells v. 
 Black, 117 Cal. 157,59 Am. St. Rep. 162; 1897, King v. Internat'l Bldg. 
 Union, 170 111. 135, 7 Am. & E. C. C. (N. S.) 526; 1899, Northport, etc., Assn. 
 v. Perkins, 93 Maine 235. 74 Am. St. Rep. 342; 1899, Herring v. Ruskin Co-op. 
 
 Assn., --Tenn. Ch. App.: ,52 S. W. Rep. 327; 1899, Bailey v. Assn. of 
 
 Master Plumbers, 103 Tenn. 99, 46 L. R. A. 561. 
 
 But if they are authorized by the charter, the courts can not set them aside 
 as unreasonable: 1899, Burden v. Burden, 159 N. Y. 287. 
 
 By-laws can not modify vested rights arising under contracts, change terms 
 as to dividends, increase or decrease liability of shareholders, or enlarge cor- 
 porate powers: 1^68, Flint v. Pierce, 99 Mass. 68, 96 Am. Dec. 691, infra, 
 p. 1174; 1887, Hazeltine v. Belfast R. Co., 79 Maine 411, 1 Am. St. Rep. 330; 
 1897, Wells v. Black, 117 Cal. 157,59 Am. St. Rep. 162; 1899, Steiner v. 
 Steiner L. & L. Co., 120 Ala. 128, 26 So. Rep. 494; 1899, State v. Citizens' Bank, 
 51 La. Ann. 426, 25 So. Rep. 318. 
 
 Sec. 356. 4. Effect of by-laws. 
 
 SAMUEL FLINT v. JAMES PIERCE. 1 
 
 1868. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 99 
 Mass. Rep. 68-71, 96 Am. Dec. 691. 
 
 [Suit by Flint against Pierce for balance of a loan due on a note 
 given in 1862 by a corporation of which Pierce was a member, and had 
 signed a by-law providing that "The members of this association 
 pledge themselves, in their individual as well as collective capacity, to 
 be responsible for all moneys loaned to this association."] 
 
 WELLS, J. The note upon which this action is based is the con- 
 tract of the corporation. The defendant is not a party to that con- 
 tract ; and the plaintiff does not seek, by this suit, to charge him upon 
 any statute liability as a stockholder. Responsibility for the amount 
 of the note is sought to be established through a by-law of the corpo- 
 ration, to which the defendant had attached his signature. This by-, 
 law, with others, was adopted in 1831. To become a member of the 
 association it was requisite to subscribe the by-laws. It does not ap- 
 pear that the defendant's signature was attached for any other purpose 
 than to constitute him a member of the corporation. It does not ap- 
 pear, and is not alleged, that the plaintiff lent his money upon the 
 faith or credit of the individual pledge contained in the by-law; nor 
 that the by-law was in any manner made known to him, or to the 
 public, as the basis of such credit. 
 
 1 Statement abridged. Arguments and part of opinion omitted.
 
 356 UGHT TO MAKE BY-LAWS. I 1/5 
 
 The office of a by-law is to regulate the conduct and define the 
 duties of the members towards the corporation and between them- 
 selves. So far as its provisions are in the nature of contract, the 
 parties thereto are the members of the association, as between them- 
 selves; or the corporation upon the one side and its individual mem- 
 bers upon the other. The right of any third party, stranger to the 
 association, to establish a legal claim through such a by-law, must 
 depend upon the general principles applicable to express contracts, as 
 laid down in Mellen v. Whipple, i Gray 317, and the subsequent 
 decisions in Field v. Crawford, 6 Gray 116, and Dow v. Clark, 7 
 Gray 198. No action can be maintained by such third party unless 
 he can bring his case within some of the recognized exceptions to 
 that general rule. A pledge like the one in question, if made for the 
 purpose of enabling the corporation to obtain a loan upon the faith of 
 it, and used for that purpose, may perhaps give a right of action 
 against the subscribers in favor of a party who has been induced to 
 advance money upon its credit. This seems to be implied strongly 
 by the decision in the case of Trustees of Free Schools in Andover 
 v. Flint, 13 Met. 543', inasmuch as the plaintiff in that case appears 
 to have failed to recover upon a similar claim merely for the reason 
 that the defendant had not signed the by-law. But no such facts are 
 shown to exist in the present case. The plaintiff not only is no partv 
 to the contract contained in the by-law, but'he fails to show any priv- 
 ity between himself and the defendant in relation to the subject-matter, 
 or to the consideration, of his demand. Judgment must be rendered 
 accordingly for the defendant. 
 
 Note. Effect of by-laws. 
 
 (a^i As to members, they are generally held to be charged with notice 
 of the provisions of the by-laws, and be bound by them, if valid: 1854, 
 Came v. Brigham, 39 Maine 35; 1859, Anacosta Tribe v. Murbach, 13 Md. 
 91, 71 Am. Dec. 625; 1884, Wetherly v. Med. & Sur. Soc., 76 Ala. <%7 ; 
 1887, Mutual Life Ins. Co. v. McSherry, 68 Md. 41; 1888, Supreme Lodge 
 K. of P. v. Knit?lit, 117 Ind. 489, 3 L. R. A. 409; 1888, Miller v. Hillehoro 
 Mut. F. Assn., 44 N. J. Eq. 224; 1889, Pfister v. Gerwig, 122 Ind. 567; 
 1S93, Matthews v. Assoc. Press, 136 N. Y. 333; 1894, Mandel v. Swan, L. & 
 C. Co., 51 111. App. 204. 
 
 But see, 1891, Pearsall v. W. U. Tel. Co., 124 N. Y. 256, 21 Am. St. II>p. <)<>-> ; 
 IS'.H, Rudd v. Robinson, 126 N. Y. 113,22 Am. St. Rep. 816; 1894, People's 
 Home Sav. Bk. v. Sup. Ct., 104 Cal. 649, 43 Am. St. Rep. 147, note. 1">2. 
 
 (t>) An to third parties, those having no notice of hy-la\vs arc not. affected l>y 
 their provision*: 185fi, Worcester v. Essex Mernnnie H. Co., 7 (tray (Mass.) 
 457; 1809, Sam^-i v. Ilolladay, Fed. Cas. 122KS; ]S9i>, Am. l.iv. 'St. ('<>. v. 
 Chicago L.S. Ex., 143111. 210,36 Am. St. Hep. 38--); ISIKJ, M"tro,,o!e H.<tT. B. 
 Co. v. Garden City, etc., 50 111'. App. 681 ; 1898, Barnes v. Black D. Coal Co., 
 101 Tenn. :;.-)4, 47 8. W. Rep. 498; 1898, Ireland v. <i!o!>e Millinir Co., -1 K. 
 1.9,41 Atl. Rep. 258; 1899, Northport, etc., Assn. v. Perkins, Hi; .Maine 235, 
 Rep. 74 Am. St. Rep. 342. 
 
 But see, contra, 1857, Cummings v. Webster, 43 Maine 192; 1885, Haden v. 
 Farmers' & M. F. Assn., 80 Va. 683.
 
 II/5& DISFRANCHISEMENT OF MEMBERS. 
 
 ARTICLE IX. DISFRANCHISEMENT OF MEMBERS. 
 
 See State v. Georgia Med. Soc., 38 Ga. 608, 95 Am. Dec. 408, 
 supra, p. 136, note 140; White v. Brownell, 2 Daly 329, supra, 
 p. 187 ; Belton v. Hatch, 109 N. Y. 593, 4 Am. St. Rep. 495, supra, 
 p. 178; American Live Stock Co. v. Chicago L. S. Ex., 143 111. 210, 
 36 Am. St. Rep. 241, supra, p. 682; Evans v. The Philadelphia 
 Club, 50 Pa. St. 107, supra, p. 1165, and note, p. 1171.
 
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