vate corporation contains an express reservation of the power to alter it, thus making the power of alteration one of the terms of the contract, the legislature can make no alteration in it, without the consent of the corporators. This doctrine, though much inveighed against by demagogues, is abundantly established by judicial decisions; and it is the foundation of that general confidence with which individuals embark their funds in corporate enterprises. Of late, however, attempts have been made to depreciate the value of this security, by broaching the doctrine, that although a State legislature cannot repeal or alter a private charter, yet the people of a State may do it, by amending the constitution for this purpose. But to this pretension, the language of the federal constitution affords a complete answer. "No State shall pass any law impairing the obligation of contracts." (a) Unless, therefore, it can be shown that a State constitution is not a law, the charter of a private corporation can no more be impaired by a State constitution than by a statute. Seldom or never has so bold and disorganizing a doctrine been reared upon so feeble a foundation. And we may congratulate ourselves that the federal constitution, which thus protects chartered rights, is "the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." In this State, however, this principle will be of no value to future corporations, because by an act of 1842 it is declared that the charter of every corporation of every description, which shall thereafter be granted, shall be subject to alteration, suspension, and repeal, in the discretion of the legislature. (b)

§ 93. Their general Powers and Properties. (c) As a general

amendatory act, the exercise of the power is very strong evidence of the acceptance of the amendment by the corporation. Goodin v. Evans, 18 Ohio St. 150; Talladega Ins. Co. v. Landers, 43 Ala. 115. The concurrence of all the stockholders is not necessary to the acceptance of an amendment enlarging the powers of the corporation. Curry v. Scott, 54 Penn. St. 270. But if the purpose of the corporation is changed by the amendment, even though the power to amend, alter, and repeal was reserved by the legislature, every stockholder must acquiesce. Zabriskie v. Hackensack, &c. Co., 3 Green (N. J.), 178. See also Ireland v. Palestine Turnpike Co., 19 Ohio St. 369. The legislature may destroy under such a power, but cannot modify without the consent of the corporators. If, however, the corporation refuses to accept the modification, it must cease to transact business. Yeaton v. Bank of the Old Dominion, 21 Grattan, 593. When a general law exists, subjecting all charters to amendment or repeal, all laws passed are subject to it; and although a subsequent law exempts property from taxation during the continuance of the charter, if it does not expressly except the corporation from the general law, it will be subject to it, and therefore repealable. Tomlinson v. Jessup, 15 Wall. 454. When a repealable charter authorized a municipal corporation to subscribe a certain sum, and have a certain share in the directory, this proportion could be changed. Miller v. The State, 15 Wall. 478. And a corporation which had erected a dam, might be required to construct fishways. Com'rs of Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446; Holyoke Co. v. Lyman, 15 Wall. 500. But when the power reserved is only to repeal in case of misuser, non-user, or abuse, the legislature is not the final judge of whether a proper cause for repeal has arisen. Commonwealth v. Pittsburgh R. R. Co., 58 Penn. St. 26. See also note to § 81, paragraph "Property in expectation - Contracts," ante. (a) This clause does not affect the powers of Congress. Evans v. Eaton, 1 Peters, C. C. 322.

(b) This provision is incorporated into the constitution of 1852. (c) 2 Kent, Com. 277.

principle, the powers, and consequently the disabilities, of corporations are to be sought, for each corporation, in its particular charter. We have no disabling statutes like the statutes of mortmain in England, prohibiting corporations from receiving or holding property; nor are corporations prohibited, as in England, from being devisees, under our statute of wills. The charter, then, of each particular corporation is the expositor, as well as source, of its powers. And the prevailing doctrine is, that charters are to be construed strictly; and that corporations can exercise no powers which are not expressly specified, or necessarily implied, in their charter. (a) In this respect, a charter is more analogous to the federal than to a State constitution. This doctrine measures at once the powers and disabilities of corporations; for there is an implied prohibition of every power not thus conferred. Of course, the powers of different corporations must vary according to their object. Those of a college or hospital, for example, must be very different from those of a banking, insurance, inanufacturing, or bridge company. So that an enumeration of the particular functions of the various existing corporations would require volumes. I can only refer to some general principles which are applicable to all.

1. The management of the affairs of a corporation, pursuant to

(a) 2 Kent, Com. 298; U. S. v. Arredondo, 6 Peters, 736; Beatty v. Knowler, 4 Peters, 162; Bartholomew v. Bentley, 1 Ohio State, 37. Rice v. Railroad Co., 1 Black, 358. Ante, p. 202, note. Contracts made by a corporation, which are beyond its powers, are void. Strauss v. Eagle Ins. Co., 5 Ohio State, 59. But see R. & B. R. R. Co. v. Odell, 29 Vt. 93. In New York, it has been held that goods bought by a corporation, although bought ultra vires, become its property, and it may sell them or mortgage them, and it seems they will be liable to an action for the price. Parish v. Wheeler, 23 N. Y. 494. See also San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Farmers' Bank v. Detroit. &c. R. R. Co., 17 Wis. 372. The term ultra vires is used in different senses. an act is said to be ultra vires when it is not in the power of the corporation to do it under any circumstances; and an act is also said to be ultra vires with reference to the rights of certain parties when the corporation cannot perform it without their consent; and it may also be ultra vires with reference to some specific purpose when the corporation cannot perform it for that purpose. When the act of the corporation is ultra vires in the first sense it is void in toto, and the corporation may avail itself of the defence; but when it is ultra vires in the second or third senses, its right to do so will depend upon circumstances: thus, if it be an act which it might perform for some purposes, but not for others, the defence will be available if the stranger knew that it was done for the unauthorized purpose, otherwise not. Miners' Ditch Co. v. Zellerback, 37 Cal. 543. The modern doctrine of ultra vires is very recent; it dates in England from Coleman v. Eastern Counties Railway Co., 10 Beav. 1, decided in 1845; though it was established earlier in the United States. Yet it has already produced an excellent text-book, Brice on Ultra Vires, which is enlarged in the American edition by Green. The earlier American rule was clear, consistent, and rigid. A corporation existed only in conformity with its charter. An undertak ing or engagement not authorized by its charter, was the undertaking or engagement of a dead person; was a nullity. Being a nullity, it could not be made valid by confirmation or enforced under cover of an estoppel. But this was found to be so harsh in practice that it has become barnacled over with exceptions, and muzzled by estoppels. In England the doctrine seems to have entirely shifted its ground, and the question there is held to be, not, is the act authorized, but is it prohibited; a question, not of authority, but of legality. A condensed statement of the rule and its limitations is given in Field on Corporations, §§ 257-273. But it is necessarily a tentative statement of the present condition of a portion of the law which is now in process of formation.

the provisions of the charter, must depend upon the votes of the members. What shall constitute membership must depend upon the nature of the corporation. Generally, it is the ownership of stock. The charter limits the amount of capital, which is divided into equal shares, and every shareholder is a member. But in many of the charitable corporations there is no distribution of stock; and in these, the members consist of those only who are required for managers, having no pecuniary interest. In such cases, if the endowment be private, the founder or donor may stipulate for the management or visitation, as it is technically called, of his charity; and the charter will constitute the persons thus indicated members of the corporation. But in whatever way the members be made such, the general rule is, that the majority shall govern, where the contrary is not provided. The will of the majority is expressed by votes, and evidenced by the records. But in business corporations, the representative principle is usually adopted; and the immediate supervision is committed to a board of directors elected by the stockholders, together with other appropriate officers. And in elections by the members, the general principle of voting, which requires personal attendance, is departed from, and votes are given by proxy, or power of attorney. For this, however, it is presumed there must be special provision in the charter or by-laws. Where the charter does not specify the number of members or directors who shall constitute a quorum for business, the rule is, that a quorum of directors shall be a majority of the whole number; but a quorum of members shall be those present, the whole having been duly notified. The power of amotion, by which is meant the removal of officers, is incidental to every corporation, without express provision, provided there be good cause; this being necessary to self-protection; but the power of disfranchisement, by which is meant the expulsion of members, requires an express provision. This is true, at least, of all joint-stock corporations. To prevent abuse, however, in the management of corporations, they are made ultimately amenable to the courts of justice. If they neglect or refuse to perform a positive duty devolved upon them by the charter, a writ of mandamus may be issued, to compel such performance; and if they attempt to exercise any power not conferred by the charter, a writ of quo warranto may be issued to compel them to desist from such usurpation. Charitable corporations, even when their visitation or supervision is provided for by the founder, as the condition of his donation, have always been held amenable to the courts of chancery for the proper discharge of their duties. And in this State, by the act of 1842, the several courts sitting in chancery have a visitorial jurisdiction over all corporations in the following cases: 1. To compel the directors or officers to account for their management of the funds of the corporation. 2. To compel them to pay the value of all property acquired to themselves, or transferred, or lost, by any violation of their duty. 3. To suspend or

remove them for gross misconduct. 4. To prevent or set aside any alienation of the property of a corporation made contrary to law, or for purposes foreign to its business. Moreover, the directors or officers are made personally liable for any loss accruing to the corporation through their mismanagement. (a)

2. The most important property of a corporation is that of uninterrupted succession, so long as the charter endures, independently of the death or change of members. The common expression is, that a corporation never dies; but this is not strictly true; because it must expire with the expiration of the charter, if not before. The meaning is, that the existence and identity of a corporation are not affected by mutations of membership. One goes out, and another comes in, under the provisions of the charter, and the corporation is still the same legal entity, and experiences no interruption in its operations.

3. All the acts which a corporation can do, are done in its corporate name, without any specification of the members. This name is always fixed by the charter, and the shorter it is the better. The advantage of this union of many interests under a single name is at once perceived. How great would be the inconvenience, if, in suing and being sued, receiving and transferring property, making contracts, or doing any other acts to which corporations are competent, the names of all the members must be repeated.

4. Corporations are authorized to have and use a corporate seal. The nature and properties of a seal will be described hereafter. The ancient doctrine was, that a corporation could only speak and act under the manifestation of its seal. But this is now changed; (b) and corporations are not required to use a scal except in those cases where it would be necessary for individuals. They may not only contract in writing without a seal, but may even be bound by implied contracts, in the same manner as individuals. (c)

(a) A stockholder in a corporation can only maintain a suit in his individual capacity against a wrong-doer injuring the corporation when application has been made to the board of directors to institute the suit, and they have refused. If they have brought a suit as requested, which is pending, a stockholder has no standing in court. Memphis v. Dean, 8 Wall. 64. A court of equity will interfere on the application of a stockholder to restrain the governing body from doing acts within the scope of the corporate authority, if such acts, under the existing circumstances, would constitute a breach of the trust which they are charged with the execution of. Wright v. Oroville Mining Co., 40 Cal. 20.

(b) 2 Kent, Com. 289; Bank of Columbia v. Patterson, 7 Cranch. 299; Fleckner v. U S. Bank, 8 Wheat. 338. A deed of land by a corporation not under its corporate seal is void. Where the seal appears, it will be presumed to have been affixed by proper authority; but the contrary may be shown by parol evidence. Koehler v. Black, &c. Co., 2 Black, 715. The private seal of one of its officers may be used, and it is not necessary to produce a resolution or order of the trustees in writing to authorize an agent to enter into a contract. Eureka Co. v Bailey Co., 11 Wall. 488, 491. But it cannot contract a debt or order payment of it by the action of the individual members of the board acting separately. State ex rel. Steinbeck v. Treasurer Liberty Township, 22 Ohio St. 144.

(c) Smith v. Nashua & Lowell R. R. Co., 7 Foster, 96-98; Bank of Middlebury v. Rutland & Washington R. R. Co., 30 Vt. 160. Merrick v. Burlington, &c. Co., 11

5. Corporations are authorized to make by-laws for the regulation of their business in detail. These by-laws sustain the same relation to the charter that statutes do to the constitution; at least the analogy sufficiently explains their nature. They must not be repugnant to the charter or other laws of the land, and they must flow expressly or impliedly from the powers conferred in the charter, as the appropriate means of executing those powers.

6. Corporations cannot commit crimes or forcible injuries, though their members may. They cannot do any strictly personal act, as giving testimony and the like; and therefore, in chancery, a corporation answers under seal; or if an oath be required, one of the officers is personally made a defendant. But corporations may be liable for the acts or omissions of their officers or agents, as much as for their own contracts and undertakings; even though such acts should in themselves be trespasses. (a)

7. The individual members of a corporation are not personally liable for its debts, beyond the amount of their shares in the capital stock, unless expressly made so by statute, which is not usual. The capital stock may consist of personalty, or realty, or both; Iowa, 74; Strauss v. Eagle Ins. Co., 5 Ohio State, 59. But the deed of a corporation must be executed in its name, and not in that of the agent. Brinley v. Mann, 2 Cush. 337. But it is now generally held, that a deed running in the name of a corporation, and signed personally by its agents with their official designation, as D. E., president, is the deed of the corporation, if the agents had proper authority. Sheehan v. Davis, 17 Ohio State, 571. A corporation, though it has a seal, may adopt any other. Tenney v. East Warren, &c. Co., 43 N. H. 343; Hutchins v. Byrnes, 9 Gray, 367; Haven v. Adains, 4 Allen, 80; Crossman v. Hilltown, 5 Grant's cases, 225. But see Regents, &c. v. Detroit, &c., Society, 12 Mich. 138. Hatch v. Barr, 1 Ohio, 390. And some cases go even further. Thus in Georgia, a deed made by the president of a corporation in his own name, and signed A. B., president, with his seal affixed, was held the deed of the corporation. Jolinson v. Crawley, 25 Ga. 316. In Arkansas, however, where any seal is required, it must be the corporate seal. State v. Allis, 18 Ark. 269. But a deed executed on behalf of a State by a public officer, duly authorized, is the deed of the State, although the officer be named in the deed, and signs his name and affixes his private seal. Sheets v. Selden's Lessee, 2 Wallace, 177. As to the mode of signature of instruments not under seal by agents, see Thompson v. Firgu R. R. Co, 36 Barb. 79; Haverhill, &c. Ins. Co. v. Newhall, 1 Allen, 130.

(a) Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio State, 172; Keary v. C. C. & C. R. R. Co. 8 id. 201; C. C. & C. R. R. Co. v. Terry, 8 id. 570; St. Louis, A. & C. R. R. Co. v. Dalby, 19 Ill. 353. Municipal corporations are liable for injuries arising from the negligence of subordinate officers and agents acting under their authority and direction in constructing public improvements. The City of Dayton v. Pease, 4 Ohio State, 80. But counties are not liable for the official delinquencies of their commissioners. Board of Commissioners of Hamilton County v. Mighels, 7 id. 109. But a municipal corporation will not be so liable when its officers are in the discharge of a governmental duty, as for the negligence of the police. Western Med. Col. v. Cleveland, 12 Ohio St. 375. Or of the fire department. Wheeler v. Cincinnati, 19 Ohio St. 19. A corporation may publish a libel so as to be liable for damages. Phil. Wil. & Balt. R. R. Co. v. Quigley, 21 How. 202; Whitfield v. South-Eastern R. R. Co., 1 Ellis, B. & E. 115; Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48. Or for false imprisonment. Goff v. Great Northern R. R. Co., 3 Ellis & E. 672. It may do a malicious act, and will be liable for it. Green v. London Genl. Omnibus Co., 6 Jurist (N. 8.), 228. It will be liable to exemplary damages where an individual would. Baltimore & Ohio R. R. Co. v. Blocher, 27 Md. 277; Jeffersonville R. R. Co. v. Rogers, 28 Ind. 1; Atlantic & G. W. R. R. Co. v. Dunn, 19 Ohio St. 162. It may be liable for an assault and battery committed by one of its officers under its orders, but is not so liable where the violence used exceeded what was necessary to carry out its orders. St. Louis, A. & C. R. R. Co. v. Dalby, 19 Ill. 353.