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.2 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. (c) 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. (d) A hospital founded by a private benefactor is, in point of law, a private corporation, though dedicated by its charter 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 character of a public institution. (e) 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, (ƒ) cannot make a charity *more or less * 276 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

(c) Marshall C. J., United States 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, 377.

(d) Bailey v. Mayor of New York, 3 Hill (N. Y.) 531.

(e) Dartmouth College v. Woodward, 4 Wheaton, 518. Story J. Ibid. 668, 669, 697-700. The case of St. Mary's Church, 7 Serg. & Rawle, 559. (ƒ) 2 Atk. 88.

2 A corporation is private, as distinguished from a public corporation, unless the whole interest belongs to the government, or it is vested with political or municipal power. Rundle v. Del. & R. Canal, 1 Wallace Jr. C. C. 275.

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. (a)

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 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. (b) 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. (c)

.

There is no doubt that corporations, as well as other private rights and franchises, may also exist in this country *277 *by prescription; which presupposes, and is evidence of a

(a) Sutton's Hospital, 10 Co. 23. Lord Hardwicke, 2 Atk. 88. Lord Holt, in Phillips 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'Keen, 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.

(b) The case of Sutton's Hospital, 10 Co. 27, 28, 30. 1 Rol. Abr. tit. Corporation, F. Denton v. Jackson, 2 Johns. Ch. 325.

(c) Dyer, 100, a, pl. 70, cited as good law by Lord Kenyon, in 2 Term Rep. 672. 1 Rol. Abr. tit. Corporation, 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 United States v. Dandridge, 12 Wheaton, 70.

grant, when the acts and proceedings on which the presumption is founded could not have lawfully proceeded from any other source. (a) 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 of at least the major part of them. (b) 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. (c) 2

1

III. Of the powers and capacities of corporations.

When a corporation is duly created, many powers, rights, and capacities are attached 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.3

(a) Dillingham v. Snow, 3 Mass. 276. Stockbridge v. West Stockbridge, 12 Id. 400. Hagerstown Turnpike Co. v. Creeger, 5 Harr. & Johns. 122. Greene v. Dennis, 6 Conn. 302. Angell & Ames on Corporations, 57-59, 3d. edit. Robie v. Sedgwick, 35 Barb. (N. Y.) 319.

(b) Yates J., 4 Burr. 2200. Lord Kenyon, 3 Term Rep. 240. Ellis v. Marshall, 2 Mass. 269. Lincoln and Ken. Bank v. Richardson, 1 Greenl. 79.

(c) Charles River Bridge v. Warren Bridge, 7 Pick. 344, Parker C. J., and Wilde J. Bank of United States v. Dandridge, 12 Wheaton, 70, 71.

1 Haslet v. Wotherspoon, 1 Strobh. Eq. 209. Goddard v. Pratt, 16 Pick. 412. A corporation can derive no advantage from an act which it does not accept. Green v. Seymour, 3 Sandf. Ch. 285. It is held, in England, by the Exchequer Chamber, reversing the judgment of the Queen's Bench, that a railway company, incorporated by Act of Parliament, and authorized to form a line of railway, were not obliged to make the railway; nor did the company, by making part of the line, oblige themselves to make the remainder. York & N. M. R. Co. v. Regina, 18 Eng. El. & Eq. 199. S. C. 16 Id. 299. People v. Albany & Vermont R. 37 Barb. (N. Y) 216. Whether part of a railroad can be abandoned, Qu? S. C. on appeal, 24 N. Y. 261; the remedy, if any, is not by an action in equity, but by mandamus, indictment, or by a proceeding to forfeit the charter, S. C. It is not essential that the acceptance of a charter should appear on the records of a corporation. It may be inferred from the acts of the corporators or of the corporation. Taylor v. Newberne, 2 Jones Eq. (N. C.) 141. As to what is evidence of an acceptance of charter, see Gleaves v. Turnpike Co. 1 Sneed (Tenn.) 491.

2 Defects in the process of corporate organization, are not available as a defence to a suit for the subscription to the stock, when an actual organization and user of corporate powers has taken place. Black River & Utica R. v. Clark, 25 N. Y. 208. Frost v. Frostburgh Canal Co. 24 How. (U. S.) 278, and see Leonardsville Bank v. Willard, 25 N. Y. 574.

As to the power of the legislature over municipal corporations and the extent of the

(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 *278 have a common seal; * 5. To make by-laws for the government of the corporation; 6. The power of amotion, 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 and immunities. (a) 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)

(a) 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 by-laws was not 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.

(b) The King v. The City of London, Skinner, 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 Hoff. Ch. 217.

(c) 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

application to them of the provision of the U. S. Constitution inhibiting to the states the power to impair the obligation of contracts, see Mayor, &c., of Baltimore v. Board of Police, 15 Md. 376; Atkyns v. Randolph, 31 Vermont, 226; Town of Milwaukee v. City of do. 12 Wis. 93.

4 By an Act of New York, (Laws of 1848,) p. 305, the impression of the seal of an incorporation on paper is valid as if made on wax. So in Mass. Laws, 1855, c. 223. Such a seal was held good at common law, in Allen v. Sullivan R. R. Co. 32 N. Hamp. 446.

(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. (d) 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. (e) 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. (f) 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. (g) In short, the English law * affords many, * 279 and our American law more numerous examples, of persons and collective bodies of men endowed with a corporate capacity, in

borrow money for such objects, and give notes, bonds, and mortgages towards payment. The decisions are numerous on this subject. See 1 Cowen, 513; 3 Wendell, 96; 5 Id. 590; 2 Hill (N. Y.) 265; 9 Paige, 470; 1 Watts, 385, and especially the case of Barry v. Merchants' Exchange Company, 1 Sandf. Ch. 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 such times and to such amount as 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 moneyed corporations may create by the use of corporate capital. Barry v. Merchants' Exchange Company, ubi supra.

(d) Gibson Ch. J., The Commonwealth v. Green, 4 Wharton, 531, 598.

(e) N. Y. R. S. 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.

(ƒ) N. Y. R. S. vol. i. pp. 337, 364. Statute Laws of Ohio, 1831. Revised Statutes of Massachusetts, 1836. Revised Statutes of Indiana, 1838. R. S. of New Jersey, 1847, tit. 6, ch. 20.

(g) Hobart, 242. Chamberlain of London's case, 5 Co. 63. Rogers v. Davenant, 1 Mod. 194. Dyer, 100. Lord Kenyon, 2 Term, 672. In Massachusetts, by imme