the New York Act of 1838, was not a corporation at all.1

A corporation constituted for the purpose of improving a special breed of cattle, and keeping, preparing, publishing and supplying a herdbook thereof, and for promoting the "interest of the importers, breeders and owners of said cattle, and thereby the public generally," is neither a public nor a quasi-public corporation, but a private one; and hence mandamus will not lie to compel it to admit an importer of such cattle to membership, or to register his cattle, even though by not being so registered their value is diminished one-half.2

1 Cayler v. Sanford, 8 Barb. (N. Y.) 225; Hallett v. Harrower, 33 Id. 537; Codd v. Rathbone, 19 N. Y. 37.

30

2 People v. Holstein-Friesian Assoc., 48 N. Y. Supm. (41 Hun) 439; 3 N. Y. St. Rep'r 142.

§ 35. Corporations are Created by Legislative Power. Nothing less than sovereign power can create a corporation. One corporation cannot create another. It was held that the city of London could not create a corporation, though they might create a guild or fraternity, which was something in the nature of a social club. In England corporations were formerly created, in most instances, by royal charter. They are generally created in that country by, or under the authority of acts of Parliament. In this country they are created by authority of the legislature, and not otherwise.2 Companies or societies which are not expressly sanctioned by the legislature in the form of some general or special law, are, in respect of third

1 Robinson v. Groscot, Comb. 372. "A corporation can only be created and exist by sanction of the legislature." Morton, J., in Hoadley v. County Commissioners, 105 Mass. 526. A corporation cannot be constituted

now

by the mere agreement of parties; it can only be created by legislative enactment. Stowe v. Flagg, 72 Ill. 397. 2 Franklin Bridge Co. v. Wood, 14 Ga. 80.

parties, generally regarded as no more than ordinary partnerships; though, as among their own members, the rights and obligations created by their private statutes, not opposed to public policy or to express law, may be different from those of partners.2

§ 36. To what Extent this Power may be Delegated. In the absence of constitutional restraints, no reason is perceived for holding that the legislature can not delegate to subordinate agencies the power of creating corporations, prescribing the manner in which the power shall be exercised. In several of the States the power of approving the charters of corporations formed for certain ideal purposes is vested in the judicial courts.3 It has been pointed out that in England the king might grant a general power to create corporations, and that a similar power has been delegated by the legislature of Pennsylvania to the judicial courts. The chancellor of the university of Oxford had the power by charter to erect corporations. But Columbia College, in the State of New York, although created by royal charter under the name of King's College, has been adjudged to have no such power. The court, speaking through Bronson, C. J., said: "Although it is now settled that the king may delegate his authority to create corporations, or, in other words, may exercise the power by another as his instrument, on the principle, qui facit per alium facit per se, I find no authority for the position that a general power to erect corporations has ever been delegated to either of the English universities. But however that may be, I think there is no color for saying that such a power has been conferred upon any of our colleges." The power which is able to prescribe the formalities to be observed in order to create a corporation, may of course dispense with them. In the

United States the power of creating corporations has been generally, perhaps universally, exercised by the legislatures of the States respectively; by the Congress of the United States within the sphere of its powers; and by the legislatures of the territories which have been organized under acts of Congress.1 Before the revolution, charters of incorporation were granted by the proprietors of Pennsylvania under a derivative authority from the crown, and those charters have been since recognized as valid.2

§ 37. Exercised by Judicial or Ministerial Action under General Laws. - Corporations are now more generally created by judicial or ministerial action under general laws. When the legislature has, by a general law, prescribed the conditions upon which a corporation may be created, it is no objection to the validity of such law, that ministerial duties, such as the issuing of a certificate of incorporation, are left to be performed by some officer, such as the Secretary of State, before the incorporation takes effect. In many of the States, subordinate administra

1 It has been held that an act of Congress creating a territory, establishing a legislature for such territory, and vesting it with power to make all laws which it might deem conducive to the good government of the inhabitants of such territory, the right being reserved by Congress to disapprove and thereby revoke any law passed by such legislature, empowered such legislature to create corporations, subject to revocation by Congress. It was so held concerning the territory of Missouri. Riddick v. Amelin, 1 Mo. 8; Douglas v. Bank of Missouri, Id. 20. Under the first constitution of Missouri the General Assembly of that State had power, not expressly granted but necessarily implied, to incorporate cities and towns, and to invest them with authority to legislate with regard to matters of local police. State v. Simonds, 3 Mo. 414. See also Ruggles v. County of Washington, 3 Mo. 348.

23 Wils. Lect. 409, as cited in Franklin Bridge Co. v. Wood, 14 Ga. 84.

8 Post, §§ 110, 132.

Granby Mining &c. Co. v. Richards, 95 Mo. 106, 112. In this case the following observation of a recent writer of reputation is quoted with approval: "A general power to confer corporate franchises can not be delegated by the legislature to any other agent. However, where the legislature has enacted that a corporation may be formed upon compliance with certain conditions, it is no objection that ministerial duties, such as the issuing of a certificate or charter, must be performed by some officer before the incorporation takes effect." 1 Mor. Priv. Corp., § 15. Charters, or articles of corporate association, are also, in some States, submitted to the judicial courts for approval (Post, § 110); in others they are submitted to the court, but the court is deemed

tive boards charged with the management of local municipal affairs have received, by delegation from the legislature, the power to grant franchises such as are usually granted by the legislature to corporations. An instance of this is afforded by the legislation of California. In that State a franchise to collect tolls on roads, &c., granted by a subordinate body under authority delegated by law, is a grant emanating from the sovereign authority of the State. Such a grant by a board of supervisors has the same standing in respect to its validity, the presumptions in its favor and the mode in which it may be attacked, as any other grant made by any department of the government. It cannot be attacked by a private person, or in a collateral proceeding, for mere error in the exercise of the authority to make the grant.1

The

§ 38. To what Extent exempt from Judicial Review. power of creating corporations, thus possessed by the legislatures of the States and Territories, and, within its constitutional sphere of action, by the Congress of the United States, is obviously a power which, like any other subject of legislative discretion, is not subject to judicial review,3 except on constitutional grounds. The departments of our national and State governments being independent of each other, it necessarily follows that each department must give full faith and credit to the acts of the others, and that it is not competent for a judicial court to investigate thə question whether an act creating a corporation has been fraudulently obtained, or obtained in consequence of fraudulent or improper practices on the part of some of the members of the legislature concerned in passing it.

§ 39. Corporation need not be Declared such in Express Words. It is not necessary to the conclusion that a body ex

to exercise the mere ministerial function of recording them and of giving publicity to the fact of incorporation. Post, § 110.

1 Truckee &c. Turnpike Co. v. Campbell, 44 Cal. 89.

United States Trust Co. v. Brady, 20 Barb. (N. Y.) 119.

3 Clarke v. Brooklyn Bank, 1 Edw. Ch. (N. Y.) 361. The charter of a railroad company can not be attacked collaterally for bad faith in obtaining it. Garrett v. Dillsburgh &c. R. Co., 78 Pa. St. 465.

4 Ferguson v. Miners' &c. Bank, 3 Sneed (Tenn.), 609.