period of our legal development and history, but it was not suited to the practical needs of a great homogeneous commercial people. The same court was compelled, in a subsequent decision, to abandon the doctrine, and to adopt the better view that the question whether there is a unity in the corporation and in the proprietorship of the corporate property, is, in such a case, one of legislative intent, and not of legislative power. Accordingly, the doctrine of the court now is that several States may, by competent legislation, unite in creating the same corporation, or in combining several pre-existing corporations into a single one; that one State may make a corporation of another State, as thus organized and conducted, a corporation of its own, as to any property within its territorial jurisdiction; and that a State may, by an enabling act, authorize a corporation created in another State to build and use a railway within its own limits, without creating a new corporation. Illustrations of this conclusion are now seen every day, in the passage by States of enactments making foreign corporations doing business within the domestic jurisdiction, domestic corporations, and amenable in all respects to the domestic laws and police regulations, notwithstanding the provisions of their foreign charters.2 § 48. Decisions adhering to the View that this cannot be done. The doctrine first announced by the Supreme Court of the United States 3 is still followed, so far as appears, in some of the courts of the States. The Supreme Court of Pennsylvania has reiterated the view laid down by Chief Justice Taney in that case, and has formulated it thus: "1. That the artificial person or legal entity known to the common law as a corporation, can have no legal existence out of the bounds of the sovereignty by which it was created. It must dwell in the place of its creation. 2. That the corporation in question was chartered by the two States of Ohio and Indiana, by the same name and style, clothed with the 1 Railroad Co. v. Harris, 12 Wall. (U. S.) 65; followed in Copeland v. Memphis &c. R. Co., 3 Woods (U. S.), 651, 658. In another Federal court it was held that where the charter of a corporation in one State is duplicated in another State, and the legislature assumes to create a home corporation, the effect is to consolidate the two; but for purposes of jurisdiction it is a separate corporation within the State of its adoption. In such a case a separate organization is not necessary. Blackburn v. Selma &c. R. Co., 2 Flip. (U. S.) 525. 2 Post, Ch. 193. 3 In Ohio &c. R. Co. v. Wheeler, 1 Black (U. S.), 286. same capacities and powers, and intended to accomplish the same objects, and is spoken of in the laws of both States as one corporate body exercising the same powers and fulfilling the same duties in both States; and yet that it had no legal existence in either of the States, except by the laws of the State, and neither State could confer on it a corporate existence in the other, nor add to or diminish the powers there exercised. Therefore, that it was a distinct and a distinct and separate corporate body in Indiana, from the corporate body of the same name in Ohio. 3. That, where a corporation is created by the laws of a State, the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence; and that a suit by or against a corporation in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body, and that no averment or evidence to the contrary is admissible, for the purpose of withdrawing the suit from the jurisdiction of a court of the United States. 4. It follows from these principles that a suit by a corporation created by the concurrent legislation of two States was, in legal contemplation, the suit of the individuals who compose it, and must, therefore, be treated as a suit in which citizens of each State are joined as plaintiffs. If the defendant was a citizen of either of those States, such a suit could not be maintained in the Federal courts, where jurisdiction of the case depended altogether on the citizenship of the parties, and consequently, the plea to the jurisdiction in that case was sustained."1 The Court of Appeals of Kentucky, in a decision rendered as late as 1880, adheres to the same view. The question concerned the effect of two acts of incorporation, one passed by the legislature of Ohio and the other passed by the legislature of Kentucky, both incorporating the Newport and Cincinnati Bridge Company, a company whose bridge was built across the Ohio river between the States of Ohio and Kentucky. The appellant contended that the corporation was one entity created by two laws emanating from different sovereigns, with no joint governmental powers over the subject of its properties and business. "This,” said Hargis, J., "seems to be an absurdity, because the law-making power of neither State can bind the other. Kentucky or Ohio has plenary power to create a corporation, but neither can create a part of the elements of a corporation and rely upon the other to complete it, and by this unauthorized marriage of distinct legislative powers, produce a being which has not received its full life from either. Each legislative power must complete the corporation, or it never can be done, because the completing act of one State is not binding upon the State 1 Allegheny County v. Cleveland &c. R. Co., 51 Pa. St. 228, 231, opinion by Woodward, C. J. which began, but failed or refused to complete and give legal existence to the corporation. Otherwise, persons who should receive from a State only a part of the powers, but were denied the rest which were necessary to create a corporation, could apply to a foreign State for supplementary legislation, which would authorize the building of railroads and bridges upon our soil, and give to its laws an extra-territorial force a doctrine that has always been successfully denied among these States, which hold the relation to each other of foreign States in close friendship. The creative power of one State can neither be added to nor subtracted from by another, so as to strengthen or weaken the power of the former in its own territory. And the proposition that two States can jointly create, by partial legislation in each, a corporation which has a complete legal existence in either, must fall to the ground. These corporations are distinct, controlling the same substance in a joint business, and appellant's residence is alone in Ohio. A corporation can not have two domiciles or residences at the same time. It obtains a residence not by its own right, but by legal authority which fixes the requisites of residence; and it retains a residence, so long as its legal existence lasts, in the State whence it received it. The appellant was properly sued as a non-resident of Kentucky." The court, coming to the merits, which was the right to recover compensation for legal services, under an employment of the plaintiff by the Kentucky corporation, held that the legal status of the two corporations was that of agents for each other, and that, upon this theory, the obligation was that of the Ohio corporation, on the principle of respondeat superior.1 1 Newport &c. Bridge Co. v. Woolley, 78 Ky. 523. 45 SECTION CHAPTER III. ACCEPTANCE OF SPECIAL CHARTERS. 52. Necessity of acceptance of charter. 56. Illustrations of the foregoing. SECTION 58. Illustration. 59. Effect of acceptance 60. Facts from which acceptance presumed. 61. Further of evidence to show ac- 62. Evidence of non-acceptance. § 52. Necessity of Acceptance of Charter.—When the legislature proceeds to create a municipal or other public corporation, the assent of the inhabitants within the territorial district intended to be incorporated is not necessary. But a man can not be forced by the legislature to become a member of a strictly private corporation without his consent. The general rule, therefore, is that a charter of a private corporation is inoperative until it is accepted. So is the 1 Ellis v. Marshall, 2 Mass. 269; s. c. 3 Am. Dec. 49; Hampshire v. Franklin, 16 Mass. 76, 87. There is much authority, early and late, for this general proposition. Thus, in Bagg's case, Rolie Rep. 224, it seems to have been agreed by the court that a patent procured by some persons of a corporation would not bind the rest, unless they should assent. And in Brownlow's Reports, 100, this passage occurs: "It was said that the inhabitants of a town cannot be incorporated without the consent of a major part of them, and an in corporation without their consent is void." In like manner in a case in Comberbach, 316, Lord Holt, speaking of a new charter made to the city of Norwich by Henry IV. and con extension of a charter beyond firmed by Charles II., says: 66 The new charter had been void if the corporation had refused it; but when they accept and put it in execution, then it is good." In like manner, it is said by Chancellor Kent: "It requires the acceptance of the charter to create a corporate body; for the government cannot compel persons to become an incorporate body without heir consent, or the consent of at least the major part of them." 2 Kent Com. 277. See, further, Lexington and West Cambridge R. Co. v. Chandler, 13 Met. (Mass.) 315; Wright v. Tukey, 3 Cush. (Mass.) 297; Dartmouth College v. Woodward, 4 Wheat. (U. S.) 708. 2 Haslett v. Wotherspoon, 1 Strobh. Eq. (S. C.) 209. its original term. So, a charter granted by the king in England to a particular guild of tradesmen does not, it seems, bind all the members of that trade in England, which nothing short of an act of Parliament could do, but it binds only those who become members.2 § 53. Cannot be Accepted in Part. As a general rule, when a charter is granted, whether it be one of creation, or of amendment to a pre-existing charter, it must either be accepted or rejected as offered, and without condition; and, in accepting the privileges conferred, the grantees will be required to perform the conditions imposed.3 A charter granted by the Crown in England, cannot be accepted in part and rejected in part, unless it should appear to be the intention of the Crown that the grantee should have the option to accept in part and reject in part. But it has been said: "However well settled this may be in regard to subsequent conditions, to be performed after the organization of the company, and for a refusal to comply with which a party injured may have his remedy at law or in equity for a specific performance, it does not apply to conditions precedent, upon the strict performance of which the very existence and exercise of powers on the part of the corporation depend. And by conditions precedent we mean anything which, by the express provisions of the statute, is made a condition to be performed on the part of the corporators before and as a foundation of the exercise of powers and privileges under the charter. In such cases the organic life of the corporation depends upon & strict compliance with the conditions imposed, and until this is done there can be no such thing as an acceptance of the charter.” 5 1 Lincoln &c. Bank v. Richardson, 1 Me. 81. It has been ruled that where a corporation, which is already in existence, and acting under a former charter, or prescription, or usage, accepts a new charter before the expiration of the old, the corporation may still act under the former, or partly under both. Woodfork v. Union Bank, 3 Coldw. (Tenn.) 488. 2 London Tobacco Pipe Makers Co. v. Woodroffe, 7 Barn. & Cress. 838. 8 Lyons v. Orange &c. R. Co., 32 Md. 18, 30; Kenton County Court v. Bank Lick Turnpike Co., 10 Bush (Ky.), 529. 4 Rex v. Westwood, 2 Dow & Cl. 21, 36. 5 Lyons v. Orange &c. R. Co., 32 Md. 18, 30. See post, § 501, et seq. |