« ForrigeFortsett »
ter to general charity. A college, founded and endowed in the same manner is a private charity, though, from its general and beneficent objects, it may acquire the characof a public institution. If the uses of an eleemosynary corporation be for general charity, yet such purposes will not of themselves constitute it a public corporation. Every charity which is extensive in its object, may, in a certain sense, be called a public charity. Nor will a mere act of incorporation change a charity from a private to be a public one. The charter of the crown, said Lord Hardwicke,b cannot make a charity *more or *276 less public, but only more permanent. It is the extensiveness of the object that constitutes it a public charity. A charity may be public, though administered by a private corporation. A devise to the poor of a parish is a public charity. The charity of almost every hospital and college is public, while the corporations are private. To hold a corporation to be public, because the charity was public, would be to confound the popular with the strictly legal sense of terms, and to jar with the whole current of decisions since the time of Lord Coke.c
In England, corporations are created, and exist, by prescription, by royal charter, and by act of parliament. With us, they are created by authority of the legislature, and not otherwise. There are, however, several of the
• Dartmouth College v. Woodward, Wheaton, 518. Story, J., Ibid. 668, 669. 697—900. The case of St. Mary's Church, 7 Serg. . Ravle, 559.
2 Atk. Rep. 88.
• Sutton's Hospital, 19 Co. 23. Lord Hardwicke, 2 Atk. Rep. 87. Lord Holt, in Philips v. Bury, reported at large in 2 Term Rep. 352. The opinions of the judges in Dartmouth College v. Woodward, 4 Wheaton, 518. All the essential principles laid down by the court in the case of Dartmouth College v. Woodward, were asserted and applied with great force by Mr. Justice Story, in the case of Allen v. M*Kean, 1 Sumner, 276, to Bowdoin College, in the state of Maine. That college is a private corporation, of which the state of Massachusetts is founder, and the visitatorial and all other powers and franchises are vested in a board of trustees under the charter, and they have a permanent right and title to their offices. VOL. II.
corporations now existing in this country, civil, religious, and eleemosynary, which owed their origin to the crown, under the colony administration. Those charters granted prior to the revolution, were upheld either by express provision in the constitutions of the states, or by general principles of public and common law of universal reception; and they were preserved from forfeiture by reason of any nonuser or misuser of their powers, during the disorders which necessarily attended the revolution. There is no particular form of words requisite to create a corporation. A grant to a body of men to hold mercantile meetings, has been held to confer a corporate capacity. A grant of lands to a county or hundred, rendering rent, would create them a corporation for that single intent, without saying, to them and their successors. There is no doubt that corporations, as well as other
private rights and franchises, may also exist in this *277 country *by prescription; which presupposes and
is evidence of a grant, when the acts and proceedings on which the presumption is founded could not have lawfully proceeded from any other source.c It requires the acceptance of the charter to create a corporate body; for the government cannot compel persons to become an incorporated body without their consent, or the consent
a The case of Sutton's IIospital, 10 Co. 27. 28. 30. 1 Rol. Abr. tit. Corporation, F. Denton v. on, 2 Johns. Ch. Rep. 325.
b Dyer's Rep. 100. a. pl. 70, cited as good law by Lord Kenyon, in ? Term. Rep. 672. i Rol. Abr. tit. Corporations, F. 3, 4. Angell f Ames on Corporations, 3d edit. 64. There is no douht that the grant or statute creating a corporation, to give it operation, may be accepted by the grantees or a majority of the corporation, for a grant of a corporation is in the nature of a contract, and requires a mutual concurrence of wills. Angell of Ames on Corporations, 3d edit. 67—72. Their acceptance or consent may be implied from circumstances. Bank of the U. S. v. Dandridge, 12 Wheaton, 70.
Dillingham v. Snow, 3 Mass. Rep. 276. Stockbridge v. West Stockbridge, 12 Ibid. 400. Hagerstown Turnpike Co. v. Creeger, 5 Harr. 4 Johns. 122. Green v. Dennis, 6 Conn. Rep. 302. Angell & Ames on Corporations, 57-59. 3d edit.
of at least the major part of them. The acceptance may, in many cases, be inferred from the acts of the majority of the corporators; and a written instrument, or vote of acceptance, is not indispensable.b
III. Of the powers and capacities of corporations.
When a corporation is duly created, many powers, rights, and capacities are annexed to it. Some of them are deemed to be necessarily and inseparably incident to a corporation by tacit operation, without an express provision; though it is now very generally the practice to specify, in the act or charter of incorporation, the powers and capacities with which it is intended to endow the corporation.
(1.) Of their ordinary powers.
The ordinary incidents to a corporation are, 1. To have perpetual succession, and of course, the power of electing members in the room of those removed by death or otherwise; 2. To sue and be sued, and to grant and to receive by their corporate name; 3. To purchase and hold lands and chattels ; 4. To have a common seal; *5. To make by-laws for the government of *278 the corporation ; 6. The power of a motion, or removal of members. Some of these powers are to be taken, in many instances, with much modification and restriction; and the essence of a corporation, according to Mr. Kyd, consists only of a capacity to have perpetual succession, under a special denomination, and an artificial form, and to take and grant property, contract obligations, and sue and be sued, by its corporate name, and to receive and enjoy, in common, grants of privileges
• Yates, J., 4 Burr. Rep. 2200. Lord Kenyon, 3 Term Rep. 240. Ellis v. Marshall, 2 Mass. Rep. 269. Lincoln and Ken. Bank v. Richardson, 1 Greenleaf's Rep. 79.
Charles River Bridge v. Warren Bridge, 7 Pick. Rep. 344, Parker, Ch. J., and Wilde, J. Bank of U. S. v. Dandridge, 12 Wheaton,
and immunities. According to the doctrine of Lord Holt,b neither the actual possession of property, nor the actual enjoyment of franchises, are of the essence of a corporation.c
• 1 Kyd on Corp. 13. 69. 70. Blackstone says, that the first five inci. denis mentioned in the text, are inseparably incident to every corporation aggregate. The New York statute also declares, that there are powers which vest in every corporation without being specified. 1 Blacks. Com. 475. N. Y. Revised Statutes, vol. i. p. 599. But in the case of Sutton's Hospital, 10 Co. 30. b. 31. a, it was held, that to make ordinances or bylaws, was uot of the essence of a corporation, and no doubt a valid corporation may be created by law, without any other essential attributes than those mentioned by Kyd.
• The King v. The City of London, Skinner's Rep. 310. A gist of personal property, or of the proceeds, rents and profits of real estate in trust to be paid over to a corporation, is good. Wright v. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. Rep. 217.
• The general rule is that every corporation has a capacity to take and grant property and to contract obligations. But these general powers incident at common law, are restricted by the nature and object of the institution, and in pursuance thereof it may make all contracts necessary and useful in the course of the business it transacts as means to enable it to effect such object, unless prohibited by law or its charter. To attain its legitimate object it may deal precisely as an individual who seeks to ac. complish the same end. It may contract for labor and materials, and make purchases, and borrow money for such objects, and give notes, bonds and mortgages towards payment. The decisions are numerous on this subject. See 1 Cowen R. 513. 3 Wendell R. 96. 5 id. 590. 2 Hill N. Y. R. 265. 9 Paige R. 470. 1 Watts R. 385, and especially the case of Barry v. Merchant's Exchange Company, 1 Sandford's Ch. R. 280, where these general corporate powers aro liberally considered and established in the able and learned judgment of the Assistant Vice-Chancellor. It is further established that the capital stock of the corporation mentioned in its charter is not per se a limitation of the amount of property, either real or personal which it may own. It may divide its profits among the stockholders at times when, and to the amount the directors may deem expedient. Instead of dividing the profits they may in their discretion suffer the surplus of profits to accumulate beyond their original capital, as the interest of the institution shall appear to dictate. There is no restriction by law except by special statutes in specific cases in the amount of credit which a moneyed corporation may create by the use of corporate capital Barry v. Merchant's Exchange Company, ubi supra.
(2.) Of quasi corporations.
There are some persons and associations who have a corporate capacity only for particular specified ends, but who can in that capacity sue and be sued as an artificial person. Thus, in New-York, by statute, each county, and the supervisors of a county, the loan officers and commissioners of loans, each town, and the supervisors of towns, the overseers of the poor, and superintendents of the poor, the commissioners of common schools, the commissioners of highways, and trustees of school districts, are all invested, for the purpose of holding and transmitting public property, with corporate attributes sub modo. The supervisors of the county can take and hold lands for the use of the county; and all these several bodies of men are liable to be sued, and are enabled to sue in their corporate capacity.b Every county and town is a body politic for certain purposes, and this is no doubt the general provision in this country, and especially in the northern states, in respect to towns. So, at common law, every parish or town was a corporation for local necessities, and the inhabitants of a county or hundred might equally be incorporated for special ends.d In short, the English law *affords many, *279
Gibson, Ch. J., the Commonwealth v. Green, 4 Wharton's Rep. 531. b N. Y. R. L. vol. ii. p. 473. See also the statute laws of the several states, in pari materia. N. Y. R. S. 3d edit. vol. i. 384. 385. 416.
· N. Y. R. L. vol. i. p. 337. 364. Statute Laws of Ohio, 1831. Revised Statutes of Massachusetts, 1835. Revised Statutes of Indiana, 1838. R. S. of New Jersey, 1847, tit. 6. ch. 20.
« Hobert, 242. 5 Co. 63. Chamberlain of London's case, 1 Mod. Rep. 194. Rogers v. Davenant, Dyer's Rep. 100. Lord Kenyon, in 2 Term Rep. 672. In Massachusetts by immemorial usage, the inhabitants of towns charged by law with the performance of duties, are held to be individually liable in their property, though sued by a collective name as a corporation. The same rule applies to parishes and school districts. Gaskill v. Dudley, 6 Metcalf, 546. In the case of Beardsley v. Smith, 16 Conn. R. 368, it was adjudged after a thorough discussion, that the individual property of the citizens of the city of Bridgeport, and the citizens individually were liable on execution for the debts of the corporation. It was