the acts of a majority of the trustees binding on the congregation, in the absence of proof of their authority. It is elementary that the powers vested in a corporation aggregate, having a board of trustees, reside, for all purposes of practical administration, in the board as the governing body. The corporation, being a legal entity merely, can only act through instrumentalities and by delegation. The statute creating it may prescribe its mode of action; and when the methods and agencies by which it may act are designated, that designation operates as a limitation and excludes other modes of action. Landers v. Church, 97 N. Y. 119. The general powers of religious corporations are enumerated in the fourth section of the act of 1813. They are in form conferred upon the trustees. The section authorizes and empowers the "trustees" to exercise the powers specified, and by the closing paragraph empowers them to regulate and order "all other matters and things relating to the temporal concerns and revenues of such church." The trustees of the defendant were therefore the only legal representatives of the corporation in exercising its corporate franchises and powers. Whatever powers were conferred on the corporation may be exercised in its behalf by the trustees. They, acting as a board, can make or authorize acts binding on the corporation, and they alone. Their sanction or authority is essential to a valid corporate act. The qualification that the collective authority of the trustees, acting as a board, is essential in order to bind the corporation by the action of its trustees, is a recognized doctrine of the law of corporations. The trustees of a corporation have no separate or individual authority to bind the corporation; and this, although the majority or the whole number, acting singly and not collectively as a board, should assent to the particular transaction. Commeyer v. Churches, 2 Sandf. Ch. 186; D'Arcy v. Railway Co., L. R., 2 Exch. 158; Constant v. Rector, 4 Daly, 305; 1 Wat. Corp., § 70; 1 Mor. Priv. Corp., § 531. This principle is recognized by statute, and expressly applied to the action of trustees of religious corporations by the act of 1813, which declares that "a majority of the trustees, being lawfully convened, shall be competent to do and perform all matters and things which such trustees are authorized or required to do or perform; and all questions arising at such meetings shall be determined by a majority of the trustees present, and in case of an equal division, the presiding trustee shall have a casting vote." Act 1813, 85; Act 1863, § 2. But the plaintiff asserts that the facts proved raised a presumption that the notes were executed pursuant to the authority of the board of trustees. The notes on their face purport to be obligations of the corporation. They recite that they were given for loans made by the payee to the corporation, and they are signed by its president, secretary and treasurer in their official character. It was not shown, as matter of fact, that they were issued in pursuance of any vote, action or resolution of the board of trustees, or that they were given for a corporate debt, or that the corporation received the benefit of the consideration, or indeed that any consideration existed. These material facts, it is insisted, are presumptively established by the instruments themselves, and the proof that they were executed by the executive officers of the defendant. In an action against a corporation, where the act or contract which is the foundation of the suit is shown to be a corporate act which the corporation had power to perform, but upon certain conditions, the doctrine of presumption is sometimes applied in favor of the plaintiff. This doctrine is stated by Story, J., in his opinion in the case of Bank v. Dandridge. 12 Wheat. 70, in language which has been frequently quoted as follows: "Acts which presuppose the existence of other acts to make them

legally operative as presumptive evidence of the latter.' The same principle was asserted in Nelson v. Eaton, 26 N. Y. 410, in answer to the claim that the notes sued upon in that case, to which the plaintiff claimed title through a bank, had been transferred by a banking corporation to the plaintiff without authority of a resolution of the board of directors, as required by statute. It appeared by the complaint, and and was admitted by the demurrer, that the notes sued upon were duly indorsed by the corporation by an authorized officer. The court said that it "would not presume that the transfer had been made in violation of the statute." In the cases referred to a corporate act was proved, and a presumption was indulged in favor of its regularity. In the present case there is no proof of a corporate act except by the declaration of the officers of the defendant on the face of the instruments; and there is no proof whatever that they were authorized either to make the notes or to make any representations binding upon the defendant. They assumed to act as agents, but the only proof of their agency to make the notes is their own declaration; and it is familiar doctrine that an agency can neither be created nor proved by the acts or declarations of the assumed agent alone. Marvin v. Wilber, 52 N. Y. 270. It is true that the persons who signed the notes were officers of the defendant, and that they constituted a majority of the trustees of the defendant. But proof that a promissory note purporting to be made by a corporation was signed by its president and secretary, does not show that it is the note of the corporation, without proof that it was made by its authority. McCullough v. Moss, 5 Denio, 567; Bridge Co. v. Bachman, 66 N. Y. 262; Bank v. Clements, 3 Bosw. 600. In Packard v. Society, 10 Metc. 427, the court, referring to this subject, and speaking of the treasurer of a religious corporation, said: There is nothing in the nature of the business to be done, or the duties which devolve upon the treasurer of such a corporation, that can require or justify the giving of negotiable instruments binding the society, without being authorized by a special vote to that effect." The name of an officer of a corporation may be descriptive of his authority, and authorize him, as to third persons, to bind the corporation in respect to matters which, according to usage and the common understanding, are within the authority of such an officer, although in the particular case such authority has been withheld. The case of a cashier or teller of a bank is an illustration. Story Ag., § 114. But it is not the common usage or understanding that the president, secretary and treasurer of a religious corporation possess power, by virtue of their offices, to borrow money for or issue notes of the corporation. They may be the agents usually designated to issue such obligations when their issuance is determined upon by the trustees. But they are special and not general agents of the corporation, and can only act in such transaction by virtue of a special authority; and their authority must be shown by those claiming to bind the corporation upon obligations issued by them. The fact that the three persons who signed the notes, being a majority of the trustees, might, acting as a board, have authorized the issuing of the notes, does not show or tend to show that this had been done. The other circumstances shown rather tend to repel the inference of authority by resolution of the board of trustees. The notes do not purport to have been executed by the signers acting as a board, and it is shown that in fact they acted separately in signing them. It does not follow that their joint action in a meeting with their associates as a board would be the same as their separate action outside of the board. The presumption that officers have done their duty does not stand for proof of authority in an action

a

against the principal in a matter outside of their official duties, and where special authority must have been conferred to justify the act. See United States v. Ross, 92 U. S. 281. There is an ancient rule of the common law, founded on technical reasons, that contract under the seal of a corporation, attested by the signature of its executive officers is, prima facie at least, the contract of the corporation. Lovett v. Association, 6 Paige, 60; Bowen v. Congregation, 6 Bosw. 263; Trustees, etc., v. McKechnie, 90 N. Y. 618. The seal of a corporation was its signature. The fact that it was affixed to an instrument purporting to be the deed of a corporation, was evidence that its custody had been committed to the person signing it. It was regarded as a transaction of such solemn import that the corporation was deemed to be present at the doing of the very act which the seal authenticated. Now that it is no longer necessary for a corporation to contract under seal, it does not follow that the same presumption should attend an unsealed contract purporting to have been made by the officers of a corporation. Such a presumption has never been indulged, so far as we have been able to find, to sustain an allegation that an unsealed contract, executed by officers of a corporation in its name, was a corporate obligation, unless authority was implied from the nature of the office or from previous similar dealings recognized by the corporation or a ratification was shown. When an agency is once lawfully constituted, the agent may in some cases bind the principal by a false representation that a particular transaction of the same general nature with that authorized, is within the power conferred, when in fact it has never been authorized, and was a fraud upon the power. The case of Bank v. Aymar, 3 Hill, 262, the principle of which has been reaffirmed in subsequent cases, is an illustration. These cases have no application. The very fact to be proved by the plaintiff, and without proving which he could not advance a step, was whether an agency to make notes has been constituted at all. This could not be proved by the declarations of the assumed agent or by his representations. No original authority to makes the notes was shown, nor any adoption or ratification of the instruments by the corporation. The plaintiff failed on the vital issue of authority. The case of Bank v. Turquand, 6 El. & Bl. 327, is not, we think, in point. June 5, 1888. People's Bank of City of New York v. St. Anthony's Roman Catholic Church of Brooklyn. Opinion by Andrews, J.

SALE -WHEN TITLE PASSES- RISKS OF SHIPMENTACTION FOR PRICE- PROVINCE OF JURY-APPEALOBJECTIONS NOT RAISED BELOW.-(1) An agreement was: "New York, January 3, 1882. Sold for account of Mee, Billings & Co., London, to James McNider, five hundred (500) bags prime fermented Bahia cocoa, at 598. per cwt., C., F. & I., by steamer to N. Y.; buyers to furnish cable credit, or pay banker's commission. Arthur R. Kyte, Broker "-it being admitted that the letters "C., F. & I." meant "to include cost, freight and insurance." Held, that upon shipment by the vendor the obligation of the purchaser attached, aud injury to the cocoa during the voyage is no excuse for non-performance. (2) Where the amount due, if any thing, is conceded, and the liability depends upon the construction of a written agreement, a submission of the case to a jury is unnecessary. (3) Where at the trial the only contention upon the facts was that the goods were not in prime condition-were not merchantable-when they came, and a contention upon the law that in consequence of that defect defendant was relieved from liability, the appellate court will not consider an assignment of error that the court erred in overlooking the circumstance that "no bill of lading and no policy of insurance had been de

livered to defendant." June 5, 1888. Mee v. McNider. Opinion by Danforth, J.

TENDER- -AFTER SUIT

BROUGHT-PAYMENT INTO

COURT ADMISSION OF PLAINTIFF'S RIGHT TO SUEPRACTICE- NONSUIT-SUFFICIENCY OF TENDER-PROVINCE OF JURY FAILURE TO GIVE NOTICE-WAIVER OF OBJECTION.-(1) Where, owing to a previous general assignment for the benefit of creditors, the plaintiff took no right of action by an assignment of the debtor's interest in a stock transaction, a tender and payment into court of the amount tendered, admits the contract or duty sued upon, and the plaintiff's right to the amount tendered, but does not prevent the defendant's showing, to defeat further recovery, the plaintiff acquired no title to the original cause of action. (2) Though the plaintiff had no right of action except such as arose from a tender and payment into the court by the defendant, a nonsuit cannot be granted where it is not shown that there was a sufficient tender before suit brought, and defendant gave no notice of the payment into court, as required by the Code of Civil Procedure of New York, section 732, in order to make a valid tender after suit brought. (3) Where a tender, before suit brought, was admitted, but claimed to be insufficient because made to one who had assigned the claim, and not to the assignee, the court cannot withdraw the question from the jury, and a grant a nonsuit, on the ground that there had been a sufficient tender. (4) The failure to give the notice required by the Code of Civil Procedure of New York, section 732, to make valid a tender after suit brought, is not waived, though the plaintiff do not raise the objection before trial. June 19, 1888. Wilson v. Doran. Opinion by Andrews, J.

HIGHWAY RIGHTS OF

the goods were to be sent to Windsor, N. C., and contained the words, " notify A. B. Windsor, N. C." The defendant, as was its custom with goods marked for points beyond its line, as these were, undertook to deliver them to connecting carriers, and the connecting carriers delivered them to A. B. at Windsor, without requiring him to produce an order from plaintiff. Held, that upon A. B.'s refusal to pay for the goods, the defendant was liable for a breach of duty, and the facts and value of the goods being undisputed, it was proper for the trial court to charge that plaintiff was entitled to a verdict as matter of law. As the contract is express that the goods shall be delivered at Norfolk to the order of the plaintiffs, a contract on the part of the defendant to forward the goods beyond Norfolk cannot be implied from marks and directions which indicate that Windsor was intended by the plaintiffs to be the ultimate destination of the goods. But if these marks and directions could be held to give authority to the defendant to send the goods forward by the usual route to Windsor, and if the defendant undertook to do this, it should have forwarded them with proper instructions. Although Skirven was to be notified of the arrival of the goods, yet, it is plain from the contract of the defendant that the goods were ultimately to be delivered to the plaintiffs or their order, and the neglect of the defendant to give this instruction to the carrier to whom it delivered the goods at Norfolk for transportation to Windsor was a breach of the duty which it assumed when it forwarded the goods. The plaintiffs have lost the value of the goods by the breach of the contract, or of this duty, by the defendant. We infer from the exceptions that the facts therein recited were undisputed; if so, the instructions were correct. Libby v. Ingalls, 124 Mass. 503; Darling v. Railroad Corp., 11 Allen, 295: Hall v. Railroad Co., 14 id. 439; Forbes v. Railroad Co,, 133 Mass. 154; Claflin v. Same, 7 Allen, 345; Railroad Co. v. Railroad Co., 6 id. 254; Railroad Co. v. Washburn, 22 Ohio St. 324; Johnson v. Railroad Co., 33 N. Y. 610. Mass. Sup. Jud. Ct., March 3, 1888. North v. Merchants' & M. Trans. Co. Opinion by Field, J.

CONSTITUTIONAL LAW

REGULATION OF COMMERCE -TAX ON SLEEPING CAR COMPANIES.-The Indiana

statute which provides that every sleeping-car company doing business in the State shall annually report to the auditor the gross amount of all its receipts, within or without the State, for fares earned in business done in the State for the preceding year, and in computing such gross receipts, the same shall be in the proportion that the distance traversed in this State bears to the whole distance paid for, and shall pay into the State treasury two dollars on every one hundred dollars of such receipts, is invalid, as a tax upon interState commerce. We cannot assent to the argument of counsel which assumes that a State may not classify and regulate foreign corporations, even though they are not engaged in the affairs of inter-State commerce. We do affirm however that in matters of commerce between the States the power of the Federal government is exclusive and supreme. The later decisions of the Supreme Court of the United States close the question to us and to all State courts; for it is a Federal question, and on such questions the decisions of that high tribunal are final. Its earlier decisions were not harmonious there was much of conflict, and more of confusion; but the later cases have carried the doctrine to the utmost length. These decisions have much restricted, if indeed they have not completely annulled, the police power of the States, where inter-State questions are involved, and they have in effect swept away all State lines. In a very late case it was said by Mr. Justice Bradley, speaking for the

court that, "in a word, it may be said that in the matter of inter-State commerce the United States are but one country, and are, and must be, subject to one system of regulations, and not to a multitude of systems." Robbins v. Taxing Dist., 120 U. S. 489. Although the chief justice and two of the associate justices, in a vigorous opinion dissented, the decision is to us as law. But there are other decisions of that court which, while not going so far as the decision in the case from which we have quoted, go quite far enough to require us to decide that the State has no power to levy a tax upon the earnings of a sleepingcar company engaged in the business of transporting passengers from one State to another. Steam-Ship Co. v. Pennsylvania, 122 U. S. 326; Telegraph Co. v. Pendleton, 122 id. 347; Railway Co. v. Illinois, 118 id. 557; Ferry Co. v. Pennsylvania, 114 id. 196; Transportation Co. v. Parkersburg, 107 id. 691; Telegraph Co. v. Texas, 105 id. 460; Telegraph Co. v. Telegraph Co., 96 id. 1; Welton v. State, 91 id. 275. In the case first cited, one of the points decided in the State Freight Tax cases, 15 Wall. 282, was declared to be wrongly decided, and it was held that "a tax upon freights and fares is virtually a tax upon the transportation itself," and this tax no State can levy. The rule as established by the recent decisions, which stand as law to us, is thus stated in Robbins v. Taxing Dist., supra: "As before said, the State may tax its own internal commerce, but that does not give it any right to tax the inter-State commerce." The attorney-general ably and ingeniously argues that the statute is valid because it is competent for the State to "tax the local occupation of appellant by the measure of its gross receipts for the proportionate amount of travel in this State." But this argument, while not without plausibility, is radically unsound. Under the law as authoritatively declared by the court of last resort, no tax in any form, or for any purpose, can be laid upon inter-State commerce. The matter of interState commerce is a national matter, with which States can in nowise interfere. The jurisdiction of the Federal government absolutely excludes the States from directly or indirectly hampering or taxing the commerce between the States. The claim of the State is also put upon the ground that the appellee can be. compelled to pay a tax upon its gross earnings for the privilege of doing a local business in Indiana. This position is untenable. In no event can a corporation engaged in the business of inter-State commerce be taxed for the privilege of doing business in this or any other State. This principle early found a place in our jurisprudence. Much as the highest court of the nation has wavered upon kindred questions, from this principle it has never departed. Indeed, one of the great causes which led to the adoption of our Federal Constitution was the evil produced by the levying of tribute, in the form of taxes, upon the commerce between the States, by some of the States, under the articles of confederation. It is evident that to permit each State to levy taxes upon the earnings of common carriers whose lines of railroad traverse its territory would lead to deplorable results; for once the power is conceded, then the method of its exercise, the amount of the tax, and like matters, would be within the exclusive control of the Legislature of each State, as neither the Federal nor the State courts could supervise or control their discretion. Ind. Sup. Ct., March 9, 1888. State v. Woodruff S. & P. Coach Co. Opinion by Elliott, J.

ELECTIONS TEST OATH - POLYGAMY.- The act of the legislative assembly of the Territory of Idaho, passed at its thirteenth session, creating additional disqualifications for voting, and prescribing a test oath as a mode of ascertaining the qualifications of persons offering to vote, is not in

violation of the Constitution of the United States. The oath is as follows: "If any person offering to vote shall be challenged by any judge or clerk of the election, or any other person entitled to vote at the same poll, and either judge shall challenge any person offering to vote whom he shall know or suspect not to be qualified, one of the judges shall declare to the person so challenged the qualifications of an elector. If such person shall then declare himself duly qualified, and the challenge be not withdrawn, one of the judges shall then tender him the following oath: 'You do solemnly swear (or affirm) that you are a male citizen of the United States, over the age of twenty-one years; that you have actually resided in this Territory for four months last past, and in this county thirty days; that you are not a bigamist or polygamist; that you are not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees, or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law as a duty arising or resulting from membership in such order, organization or association, or which practices bigamy or polygamy or plural or celestial marriage as a doctrinal rite of such organization; that you do not either publicly or privately, or in any manner whatever, teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a religious duty or otherwise; that you regard the Constitution of the United States, and the laws thereof, and of this Territory as interpreted by the courts, as the supreme law of the land, the teachings of any order, organization, or association to the contrary notwithstanding; and that you have not previously voted at this election; so help you God.'" Is this Territorial enactment in violation of the provisions of the Federal Constitution which guarantees religious freedom? It is at once conceded that if the statute prohibits or interferes in any substantial manner with the free exercise of religion then it is void and of no effect. The first amendment to the Constitution declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and in another place that " no religious test shall ever be required as a qualification to any office or public trust under the United States." These provisions are limitations upon the power of Congress, but it is readily conceded that Congress could not confer any authority upon a subordinate legislative body that it did not itself have and could not exercise. Therefore the inquiry will be confined to the one question. There is much general discussion of these constitutional inhibitions found in the books, but we have not been referred to any authority, nor do we know of any, upon the precise point involved in the case at bar. The authors however agree as to the object and purpose of the amendment, as well as to the causes which led to its adoption. "This amendment," says Judge Story, "cut off the means of religious persecution (the vice and pest of former ages) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon, almost from the days of the apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of persecuted Puritans, as well as other colonies where the Church of England had maintained its superiority, would furnish out a chapter as full of the darkest bigotry and intolerance as any which could be found to disgrace the pages of foreign annals." Judge Cooley, in his valuable work on Constitutional Limitations, 576, says: "Whatever therefore may have been their individual sentiments upon religious questions, or upon the propriety of the State

assuming supervision and control of religious affairs, under other circumstances, the general voice has been that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and religious worship should be questious between each individual man and his Maker. Of these questions human tribunals, so long as the public order is not disturbed, are not to take cognizance except as the individual, by his voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters." Authorities might be multiplied, but the result of all is that the government must not interfere with opinion, but may with conduct. Laws are made for the government of actions, and when the conduct and actions are criminal it is no excuse to say that these things, though forbidden by law, are done in the name of religion. In Reynolds v. U. S., 98 U. S. 166, Mr. Chief Justice Waite said: "So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Governments could exist only in name under such circumstances." Perhaps the constitutional provision of the State of New York, on this subject, is as sound a commentary as can be given of religious freedom. "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind, and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State." But counsel for appellant strenuously argued that the oath here prescribed and required to be taken does in effect interfere with the rights of conscience in religious matters, and thereby with free exercise of religion. The most objectionable clause, and the one said to come within the inhibition, is as follows: "That you are not a member of any order, organization, or association which teaches, advises, counsels, or encourages its members, devotees, or any other person to commit the crime of bigamy or polygamy, or any other crime defined by law, as a duty arising or resulting from membership in such order, organization, or association, or which practices bigamy or polygamy, or plural or celestial marriage, as a doctrinal rite of such organization." This clause is undoubtedly open to criticism, but the intention of Legislature was to withdraw the right of suffrage from persons who encourage, aid and abet those who are endeavoring, not by constitutional methods, but against all law, to overthrow a sound public policy of the government, and one that has existed from its foundation. In Murphy v. Ramsey, 114 U. S. 43, Mr. Justice Mathews, in construing the act of March 22, 1882, and speaking for the entire court, says: franchisement is not prescribed as a penalty for being guilty of the crime and offense of bigamy or polygamy; for as has been said, that offense consists in the fact of unlawful marriage, and a prosecution against the offender is barred by the lapse of three years by section 1044 of Revised Statutes. Continuing to live in that State afterward is not an offense, although cohabitation with more than one womon is. But as one may be living in a bigamous or polygamous state, without cohabitation with more than one woman, he is in that sense a bigamist or polygamist, and yet guilty of no criminal offense. So that in respect to

"Dis