4 Osborn v. Bank of United States, 9 Whart. 738; Thomson v. Pa cific R. R. Co. 9 Wall. 579; Pacific R. R. Co. v. Lincoln County, 1 Dill. 314; State v. Young, 3 Kan. 445.

5 M'Culloch v. Maryland, 4 Wheat. 316.

6 Briscoe v. Bank of Commonwealth, 11 Peters, 257; Nichol v. Mayor etc. 9 Humph. 252; McPherson v. Foster, 43 Iowa, 48; S. C. 22 Am. R. 215: Herzo v. San Francisco, 33 Cal. 134; Bank of Chenango v. Brown, 26 N. Y. 467.

7 Williams v. Bank of Michigan, 7 Wend. 539; Burnes v. Achison, 2 Kan. 454; Riddick v. Amelin, 1 Mo. 5; Vance v. Farmers etc. Bank, 1 Blackf. 80.

8 Vincennes University v. Indiana, 14 How. 268; and see People v. Marshall, 1 Gilm. (Ill.) 672.

9 Myers v. Manhattan Bank, 20 Iowa, 283. See Allen v. Pegram, 16 Iowa, 163.

§ 19. Creation by delegated power.-Under the provincial government of Maryland, municipal corpora tions were created by or with the immediate sanction of the land proprietary or the monarch.1 And prior to the revolution, charters of incorporation were granted by the proprietaries of Pennsylvania, under authority derived from the crown, which have been recognized since the revolution. A similar power has been delegated by the legislatures of some of the states as it regards bridges & and churches.4 It is by virtue of delegated power that a territory may establish corporations; 5 and a provision in the organic act, that the power of the territorial legislature "shall extend to all rightful subjects of legislation," authorizes the legislature to create municipal corporations.6

1 McKim v. Odom, 3 Bland Ch. 416.

2 Ang. & A. Corp. § 74.

3 Franklin Bridge Co. v. Wood, 14 Ga. 801.

4 St. Mary's Church, 7 Serg, & R. 517.

5 Vincennes University v. Indiana, 14 How. 268; Deitz v. City, 1 Cal. 323. 6 State v. Young, 3 Kan. 445.

§ 20. Restrictions on legislative power to create In the absence of any special provisions in the constitu-. tion of a state restricting the legislature, it may prescribe the functions and duties of corporations, and impose restraints upon them to the same extent as upon natural persons; subject, however, to the limitation that it cannot

impair the obligation of the contract implied in the charter,2 and cannot take the essential franchise without compensation. In the constitutions of some of the states the legislature is, in terms, required to provide a general law for the creation of all corporations, public and private.4 In others there is a provision that "the legislature shall pass no special act conferring corporate powers,"5 and this restriction is applied to municipal as well as to private corporations." But in most of the states the legislature is allowed, by the terms of the constitution, to create corporations for municipal purposes by special act. 7 Under a provision of the constitution, that "corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes," the legislature is restricted not only from creating in the strict sense of the term a business corporation by a special act, but also from conferring by a special act any powers or franchises upon a corporation. But extending the duration of an existing corporation is not the creation of a new one, which infringes upon a constitutional provision prohibiting the formation of corporations under a special act; nor does such provision prevent a special act changing the name of an existing corporation, and empowering it to acquire additional property.11 So, an act remedying a technical defect in the organization of a corporation is not an act to create a corporation.12

10

1 Branin v. Conn. etc. R. R. Co. 31 Vt. 214; Gorman v. Pacif. R. R. Co. 26 Mo. 441; People v. Boston etc. R. R. Co. 70 N. Y. 569; Chicago etc. R. R. Co. v. Iowa, 94 U. S. 155; Stone v. Wisconsin, id. 181; Beer Co. v. Massachusetts, 97 U. S. 25.

2 Dartmouth College v. Woodward, 4 Wheat. 518; Jefferson Branch Bank v. Skelly, I Black, 436; Dodge v. Woolsey, 18 How. 331; State v. Dawson, 22 Ind. 272; Woodfork v. Union Bank, 3 Cold. :88; Mowrey v. Indianapolis etc. R. R. Co. 4 Biss. 78; Flint etc. Plank-road Co. v. Woodhull, 25 Mich. 99; Allen v. Buchanán, 9 Phil. 283.

3 Madison etc. R. R. Co. v. Whiteneck, 8 Ind. 217; Nelson v. Ver. mont etc. R. R. Co. 26 Vt. 717.

4 Iowa Const. of 1857, art. 8, § 1; Von Phul v. Hammer, 29 Iowa, 222; Fla. Const. of 1865, art. 4, § 20.

5 Neb. Const. of 1367, art. 8, §§ 1, 2; Kaus. Const. of 1859, art. 12, § 1; Ohio Const. of 1851, art. 13, §§ 1, 2.

6 State v. Cincinnati, 20 Ohio St. 18; Wyandotte City v. Wood, 5 Kans. 603.

7 See Nev. Const. of 1864, art. 8, § 1; La. Const. of 1864, tit. 7, art. 121; N. Y. Const. of 1864, art. 8, § 1; Virginia City v. Mining Co. 2 Nev. 86; Tierney v. Dodge, 10 Minn. 171; 12 id. 41; Railroad Co. v. Plumas Co. 37 Cal. 354.

8 Cal. Const. of 1849, art. 4, § 31; Mich. Const. of 1850, art. 15, § 1. 9 San Francisco v. Spring Valley Water Works, 48 Cal. 493.

10 Cotton v. Miss. etc. Broom Co. 22 Minn. 372.

11 Wallace v. Loomis, 97 U. S. 146; and see Moers v. City of Read. ing, 21 Pa. St. 188.

12 Syracuse City Bank v. Davis, 16 Barb. 188.

§ 21. Incorporation under general acts.-Tho tendency of legislation in this country is, not to grant special charters, but to provide for the formation of corporations under general laws enacted for that purpose.1 And this is so as it respects municipal, cr public, as well as private corporations. But where a corporation is to be created under the provisions of a general law, it is only by pursuing the provisions of the statute that corporate existence can be acquired; 3 and non-compliance on the part of a company with such provisions is fatal to the act of incorporation. The regularity and validity of the organization of a corporation cannot, however, be questioned collaterally; but can be impeached only by some direct proceeding.&

1 See Chase v. Lord, 16 Hun, 369.

2 See Thomas v. Sheland, 12 Ohio St. 124; Welker v. Potter, 18 id. 85; Com. v. Montrose, 52 Pa. St. 351; Burke v. Jeffries, 20 Iowa, 145; Kay. ser v. Trustees etc. 16 Mo. 88.

3 Harris v. McGregor, 29 Cal. 124; Bigelow v. Gregory, 73 Ill. 197; Abbott v. Omaha Smelting Co. 4 Neb. 416; Childs v. Smith, 55 Barb. 45. But see Harrod v. Homer, 32 Wis. 162.

4 Field v. Cooks, 16 La. An. 153; Indianapolis etc. M. Co. v. Her kimer, 46 Ind. 142.

5 Aurora etc. R. R. Co. v. Lawrenceburgh, 56 Ind. 80; Ossipee Manuf. Co. v. Canney, 54 N. H. 295; Swartwout v. Mich. etc. R. R. Co. 24 Mich. 389; Blair v. Rutherford, 31 Tex. 465. 6 Thompson v. Candor, 60 Ill. 244.

§ 22. Words of incorporation. The words "to found,' ," "to erect or establish," or "to incorporate," are usually employed to indicate the intention to create a body politic, but they are not essential.1 Corporations, public or private, may be established without any pre

3

scribed form of words, or technical mode of expression.2 And the omission in the act of incorporation of the words to plead and be impleaded," or "to have a seal," or "to make by-laws," would not be an essential defeat; so, of the omission of the name, provided it could be ascertained from the terms of the act, or from the nature of the thing granted. The power which prescribes the formalities to be observed in order to create a corporation is able to dispense with them.5

1 Sutton's Hospital Case, 10 Co. Rep. 30 h.; Thomas v. Dakin. 22 Wend. 994; Com. v. Westchester R. R. Co. 3 Grant Cas. 200; Goshorn v. Supervisors etc. 1 West Va. 308.

2 North Hempstead v. Hempstead, 2 Wend. 109, 133; Stebbins v. Jennings, 10 Pick. 172; Bow v. Allenstown, 34 N. H. 372; Rex v. Ainery, 1 Terni R. 575; and see § 16, ante.

3 Conservators of River Tone v. Ash, 10 Barn. & C. 349.

4 School Comm'rs v. Dean, 2 Stewt. & P. 190; Trustees etc. v. Parks, 10 Me. 441.

5 Black River etc. R. R. Co. v. Barnard, 31 Barb. 258.

§ 23. Acceptance of grant.--In the case of private corporations, it is the general rule, that the incorporating act is ineffectual to constitute a corporate body until it is accepted by the corporators. And it must be accepted entire, as it is offered, if at all.2 If the act depends upon conditions precedent, an acceptance strictly in conformance with the provisions of the act is necessary to render it operative, either as a grant to or obligation upou the corporation. A qualified or partial acceptance of an act granting new franchises to an existing corporation upon specified conditions, will not be recognized. An express or formal declaration of acceptance is not required; 5 any unequivocal act, showing a desire and intention to accept, will be sufficient, provided it is done by a majority of the grantees. Acceptance may be implied from corporate acts; and if the parties to be benefited by the grant are found exercising the privileges granted, it will be almost conclusive evidence of the fact of acceptance. So, the acceptance of a charter amendment, like the acceptance of an original charter, may be proved by

showing that the corporation has done corporate acts, authorized by the amendment, but which without it would have been unauthorized. Acceptance of a charter may be presumed from a long lapse of time, and the continued exercise of the corporate powers; 10 but the presumption of acceptance is rebutted by evidence that no proceedings were ever had under the charter, although seven years had elapsed since its date. It is not indispensable that the vote of acceptance should appear upon the corporate records; 12 but parole evidence is inadmissible to prove acceptance, where the records can be shown.13 An acceptance by the directors, acquiesced in by the company, may give force and effect to an act of incorporation.14 The acceptance by a corporation of a new charter is not necessarily a surrender of the old one; 15 and the corporation may act partly under both the new and the old charters, so far as they are consistent. 16

1 Falconer v. Campbell, 2 McLean, 196; State v. Dawson, 16 Ind. 40; and see § 17 unte.

2 Rex v. Westwood, 4 Barn. & C. 781; S. C. 7 Dowl. & R. 267; Greene v. Seymour, 3 Sand. Ch. 235.

3 Lyons v. Orange etc. R. R. Co. 32 Md. 18.

4 Lyons v. Orange etc. R. R. Co. 32 Md. 18.

5 Logan v. McAllister, 2 Del. Ch. 176.

6 Russell v. McLellan, 14 Pick. 63; Rex v. Hughes, 7 Barn. & C. 708.

7 Bangor etc. R. R. Co. v. Smith, 47 Me. 34: Heath v. Silverthorn etc. Lead Co. 39 Wis. 146; Trustees of Vernon Soc. v. Hills, 6 Cowen, 23. 8 Talladega Ins. Co. v. Landers, 43 Ala. 115.

9 Smead v. Indianapolis etc. R. R. Co. 11 Ind. 104: Sumrall v. Sun Mut. Ins. Co. 40 Mo. 27; Kenton County Court v. Bauk Lick Turnpike Co. 10 Bush, 52); and see Goodin v. Evans, 18 Ohio St. 150.

10 Middlesex Husbandmen etc. v. Davis, 3 Met. 133.

11 Newton v. Carberry, 5 Cranch, C. C. 632.

12 Covington v. Covington etc. Bridge Co. 10 Bush, 69; Com. v. Bakeman, 105 Mass. 53.

13 Coffins v. Collins, 17 Me. 440.

14 Mut. etc. Ins. Co. v. Stokes, 9 Phil. (Pa.) 80; and see Com. v. Huston, 7 Serg. & R. 460.

15 Johnston v. Crawley, 25 Ga. 316; Norris v. Mayor etc. 1 Swan, 164. 16 Woodfork v. Union Bank, 3 Cold. 488.

§ 24. Acceptance, when not required.-The rule requiring the acceptance of charters has no application in