education, consisting of common schools, seminaries, colleges or universities, the corporations through the agency of which this is done are generally regarded as public corporations, whether created by general or special laws. Thus, it has been held that a board of school commissioners for a particular county, created by special act of the legislature, authorized to devise a system of public instruction for such county, to establish public schools therein, and to raise money for the support of the same, etc., is a public corporation, created for great public educational purposes, and the charter, being public in its character, may be altered and amended at the will and pleasure of the general assembly. So, it is held in Illinois that the trustees of schools are public corporations, and, as such, subject to be controlled and regulated by the legislature. So, the trustees of the University of Alabama compose a public corporation, entirely within the control of the legislature, so that the latter has the authority, by the passage of any statute, to alter, amend, or enlarge the original acts of incorporation. On grounds equally obvious, a school district township is a " political or municipal corporation,' within the meaning of a constitutional provision, inhibiting such corporations from incurring indebtedness exceeding five per cent. on the taxable property of the corporation. On the other hand, upon grounds not made obvious by the court, an incorporated academy in Georgia was held to be a private corporation, notwithstanding it derived its support in part from the State." 1 School Commissioners v. Putnam, 44 Ala. 506. 2 Bradley v. Case, 3 Scam. (Ill.) 585; Bush v. Shipman, 4 Scam. (Ill.) 186; Trustees v. Tatman, 13 Ill. 28; Compare State v. Springfield Township, 6 Ind. 83. * Trustees v. Winston, 5 Stew. & Port. (Ala.) 17. So of the Agricultural College of Florida: State v. Knowles, 16 Fla. 577. So of the University of Missouri: Head v. Curators, 47 Mo. 220. So of the University of North Carolina: University v. Maultsby, 8 Ired. Eq. (N. C.) 257. But the University of Iowa cannot be sued as 5 Winspear v. Holman, 37 Iowa, 542. 6 Cleaveland v. Stewart, 3 Ga. 283. § 26. Corporations to Promote Charities of Public Nature. The fact that a charity which a corporation is chartered to foster is a charity of a public nature, that is, a charity intended for the benefit of all the members of the public, of a designated class, who may apply for or be entitled to the benefaction, does not make the corporation a public corporation. Thus, where a college was endowed by private individuals the fact that its objects were of a public nature did not give the corporation the quality of a public corporation, so as to subject it to governmental control, - the trustees and professors not being public officers, invested with any portion of the political power of the State, and the institution not partaking in any degree in the administration of civil government, or performing any of the duties which flow from the sovereign authority. In other words, an eleemosynary corporation upon a private foundation is a private and not a public corporation, in the sense that it is not subject to regulation by the State contrary to its charter.2 But it has been held that a corporation, the object of which is to provide a general hospital for sick and insane persons, having no capital stock nor provision for making dividends or profits, deriving its funds mainly from public and private charity, and holding them in trust for the object of sustaining the hospital, conducting its affairs for the purpose of administering to the comfort of the sick, without the expectation or right on the part of those immediately interested in the corporation to receive compensation for their own benefit, is a public charitable institution in the sense that it is not liable for the negligence of a surgeon selected by its trustees with due care; and this although patients are required to pay for their board, according to their circumstances and the accommodations which they receive.3 1 Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 634. 2 Ibid. 671, per Story, J. "Who ever thought before," said the learned justice, "that the munificent gifts of private donors for general charity became instantaneously the property of the government, and that the trustees appointed by the donors, whether corporate or unincorporated, might be compelled to yield up their rights to § 27. Corporations formed to Promote Public Objects for Private Gain.-Recurring to the principle that corporations are not public because they are formed to promote objects of a public character,2 we find that corporations which are formed primarily for the private emolument of their members, do not become public corporations from the mere fact that the employment from which they expect to derive such emolument is public in its nature; though they may possess some of the powers and be subject to some of the liabilities of public corporations. Thus, a canal company is none the less a private corporation, from the fact that its canal is constructed for the public benefit.* So, a railway company, although equally with a canal company, it may receive by delegation from the State the power of eminent domain, which is strictly a sovereign power,5 and may, on the other hand, be subject to the police regulation of the State in the conduct of its business within certain constitutional limits, is yet regarded for most purposes as a private corporation. So, although the business of banking is subject to the police supervision of the State, yet a bank whose stock is owned by private persons is a private corporation, in the sense that the legislature cannot control or alter the grant without the consent of the corporators. So, where the objects of the creation of a corporation were not declared in the statute creating it, other than to superintend the construction of a levee on a certain river, but it appeared that its purpose was to advance the private interests of land-owners within the district incorporated, and that no 6 pital, 120 Mass. 433; s. c. 21 Am. Rep. 529. The Board of Education of the State of Illinois (Act Feb. 18, 1857, L. 1857, p. 298), is an eleemosynary, and not a public corporation. Board of Education v. Bakewell, 122 Ill. 339. 1 Ante, § 26. 2 Tinsman v. Belvidere &c. R. Co., 26 N. J. L. 148; Directors v. Houston, 71 Ill. 318. 3 Tinsman v. Belvidere &c. R. Co., 26 N. J. L. 148; Whiting v. Sheboygan &c. R. Co., 25 Wis. 167. 4 Ten Eyck v. Delaware &c. Canal, 18 N. J. L. 200. 5 Post, Ch. 122. 6 Post, Chs. 118, 119. Tinsman v. Belvidere &c. R. Co., 26 N. J. L. 148. They are such within the rule that their charters are protected by the constitution of the United States from legislative alteration. Thorpe v. Rutland &c. R. Co., 27 Vt. 140; s. c. 62 Am. Dec. 625, and note; Beach on Railways, § 23. 8 Logwood v. Huntsville Bank, Minor (Ala.), 23; State v. Tombeckbee Bank, 2 Stew. (Ala.) 30. other purposes were embraced in its provisions, although it might accidentally enhance the general prosperity of the whole community,— yet it was held to be none the less a private corporation, in the sense that the legislature had no constitutional power to clothe it with the power of taxation.1 § 28. When Municipal Corporations deemed Private. A class of decisions exist, chiefly in New York, which proceed upon the ground that a municipal corporation may have a private character, that is, may own certain kinds of property in a private capacity, as to which it is to be deemed a private corporation and subject to the liabilities of a private proprietor. The leading case on the subject is Bailey v. New York. The principle there declared was that a municipal corporation is liable to pay damages for injuries inflicted in the management of property which it holds in its private or corporate capacity, the profits of which inure directly to its benefit as a corporation, and indirectly to the benefit of the public, in the same manner as an individual is so liable. A dam erected by a city for supplying its inhabitants with water, for which the city received compensation distributively, from the inhabitants thus supplied, was deemed private or corporate property within the meaning of this rule. Under this rule a city has been held liable for an injury sustained by the plaintiff in falling into a dangerous excavation on the grounds of a city building, used in part for municipal purposes and in part rented to private persons; for the sinking of a vessel in consequence of the city negligently permitting an iron cylinder to remain concealed under water near one of its wharves; 5 for the loss of a horse arising from the non-repair of a wharf for the use of which it receives tolls; and for the negligence of persons employed by the officers of the corporation in 6 2 3 Hill (N. Y.), 531, and 2 Denio (N. Y.), 433; s. c. 2 Thomp. Neg. 652. 3 Ibid. Oliver v. Worcester, 102 Mass. 489. 5 Memphis v. Kimbrough, 12 Heisk. (Tenn.) 133. 6 Macauley v. New York, 67 N. Y. 602. the repair of its public sewers.1 This rule in its operation creates a marked exception to the general rule that no action lies against a municipal corporation for damages sustained in consequence of its neglect to perform a public duty. § 29. Illustrations of Public and Private Corporations.-Overseers of the poor in New York are held to be a public corporation for certain purposes.3 - Trustees of the poor in Mississippi have been held to be a public corporation, and subject to the control of the legislature; so that a statute giving a stay of execution on a judgment recovered by such corporation was not unconstitutional. Overseers of the poor in Boston were held to be a corporation aggregate under a statute giving them many powers usually incident to a corporation, although they were chosen annually by the inhabitants of the town.5 In Illinois, the commissioners created under an act of the legislature for laying out and maintaining a suburban park are a public corporation, in the sense which gives the legislature the right to modify their powers and duties, without submitting the supplemental act to a popular vote. There is judicial authority to the effect that a corporation created for the purpose of improving the navigation of a river, so as to make it suitable for driving logs, is a public corporation; since such a river is a public highway, and since the power of taking tolls, vested in it by its charter, is itself a governmental power." A levee district, organized under the laws of California, to construct works for preventing portions of the territory from overflow, and clothed with powers for this purpose, to issue bonds, levy and collect assessments, construct and repair highways, open canals, etc., is a public corporation.8 A bank in which the stock is owned by individuals is a private corporation.9 A private banker, though carrying on business under 1 Lloyd v. New York, 5 N. Y. 369. * Sussex County v. Strader, 18 N. J. L. 108; Cooley v. Essex, 27 N. J. L. 415; Livermore v. Camden, 31 N. J. L. 507; s. c. 29 N. J. L. 245; Pray v. Jersey City, 32 N. J. L. 395; Union v. Durkes, 38 N. J. L. 21; Richmond v. Long, 17 Gratt. (Va.) 375. For a further discussion of this distinction, with illustrations, see 2 Thomp. Neg. 734; Darlington v. New York, 31 N. Y. 164, 198. 3 Rouse v. Moore, 18 Johns. (N. Y.) 407; 3. c. 1 Cow. (N. Y.) 861. |