They may also be empowered to take or hold private property for municipal uses, and such property is invested with the security of other private rights. So, corporate franchises attached to public corporations are legal estates coupled with an interest, and are protected as private property. If the foundation be private, the corporation is private, however extensive the uses may be to which it is devoted by the founder, or by the nature of the institution. A bank, created by the government, for its own uses, and where the stock is exclusively owned by the government, is a public corporation. So, a hospital created and endowed by the government, for general purposes, is a public, and not a private charity. But a bank, whose stock is owned by private persons, is a private corporation, though its object and operations partake of a public nature, and though the government may have become a partner in the association by sharing with the corporators in the stock. The same thing may be said of insurance, canal, bridge, turnpike, and railroad companies. The uses may, in a certain sense, be called public, but the corporations are private, equally as if the franchises were vested in a single person. A hospital founded by a private benefactor, is, in point of law, a private corporation, though dedicated by its char effect upon the institutions, and moral and social character of the people. M. De Tocqueville, in his De la Democratie en Amerique, tom. 1. 64. 96, appears to have been very much struck with the institution of New-England towns. He considered them as small independent republics, in all matters of local concern, and as forming the principle of the life of American liberty, existing at this day. a Angell & Ames on Corporations, 3d. edit. 30. These local corporations, as cities and towns, can sue and be sued, and the judicial reports in this country, and especially in the New-England states, abound with cases of suits against towns, in their corporate capacity, for debts and breaches of duty for which they were responsible. b Marshall, Ch. J., U. S. Bank v. Planters' Bank, 9 Wheaton, 907. It has even been held, that a state bank may be considered a private corporation, though owned entirely by the state. Bank of South Carolina v. Gibbs, 3 M'Cord's Rep. 377. • Bailey v. Mayor of New-York, 3 Hill's Rep. 531. 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, 4 Wheaton, 518. Story, J., Ibid. 668, 669. 697-900. The case of St. Mary's Church, 7 Serg. & Rawle, 559. b2 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. 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.b 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. 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 The case of Sutton's Hospital, 10 Co. 27. 28. 30. 1 Rol. Abr. tit. Corporation, F. Denton v. Jackson, 2 Johns. Ch. Rep. 325. b Dyer's Rep. 100. a. pl. 70, cited as good law by Lord Kenyon, in 2 Term. Rep. 672. 1 Rol. Abr. tit. Corporations, F. 3, 4. Angell & Ames on Corporations, 3d edit. 64. There is no doubt 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 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. & 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 a Yates, J., 4 Burr. Rep. 2200. Ellis v. Marshall, 2 Mass. Rep. 269. son, 1 Greenleaf's Rep. 79. Lord Kenyon, 3 Term Rep. 240. ▸ Charles River Bridge v. Warren Bridge, 7 Pick. Rep. 344, Parker, Ch. J., and Wilde, J. Bank of U. S. v. Dandridge, 12 Wheaton, 70, 71. and immunities. According to the doctrine of Lord Holt, 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 incidents 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 gift 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 accomplish 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 are 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. |