8 See § 193, ante.

9 State v. Georgia Med. Coll. 38 Ga. 608; 1 Withr. Corp. Cas. 328. See Weary v. State University, 42 Iowa, 335.

10 Murdock v. Phillips Academy, 7 Pick. 303; Bracken v. Will. & M. Coll. 1 Call, 161; 3 id. 573; State v. Adams, 44 Mo. 570.

11 State v. Adams, 44 Mo. 570.

12 Nelson v. Cushing, 2 Cush. 519.

13 Nelson v. Cushing, 2 Cush. 519.

14 Nelson v. Cushing, 2 Cush. 519.

15 See Sanderson v. White, 18 Pick. 338; Rex v. Bishop of Worcester, 4 Maule & S. 415.

16 Rex v. Bishop of Ely, 1 Black. W. 83.

6

§ 195. Powers of visitor.-It is a general rule that, in the absence of a trust, the jurisdiction of a visitor is supreme and exclusive, within the limits of the authority bestowed upon him. But if he exceed his authority, or act in a matter beyond his authority, a writ of prohibition lies against him.2 Regulations that in ordinary corporations are made by stockholders, and disputes that are submitted to the courts, are, in the case of eleemosynary corporations, made and decided by those intrusted with the visitorial power. They may examine into and regulate the conduct of members, amend and repeal by-laws of the corporation,5 correct abuses, and assume the general management of the trust; 7 subject only to the expressed will of the founder, as embodied in the charter. Being the creatures of the charter, they have no power over it, and it is their absolute rule of conduct. If there are particular statutes, they constitute the rule of the visitor; 10 if the statutes direct the manner in which the visitorial power is to be exercised, that mode must be pursued.11 The words "shall and may," used in a general act, or in the constitution of a private charity, are to be construed imperatively, as the word "must." 12 Funds left by will to establish a school for the instruction of "youth," were adjudged to be applicable to the support of a school for both sexes. 13 A visitor cannot compel a specific performance.14 And since the tribunal of the visitor is strictly domestic, he cannot take cognizance of acts of disobedience to the general laws of the land.15

1 Rex v. Bishop of Worcester, 4 Maule & S. 415; Att.-Gen. v. Found. ling Hospital, 2 Ves. 42; Thompson v. University of London, 33 Law J. Ch. 625; and see University of Md. v. Williams, 9 Gill & J. 365; People . Sailors' Snug Harbor, 54 Barb. 532.

2 Bishop of Chichester v. Harward, 1 Term Rep. 650; Rex v. Bishop of Ely, 1 Black. W. 81; Whiston v. Dean etc. of Rochester, 7 Hare, 532.

3 State v. Adams, 44 Mo. 570; Murdock v. Phillips Academy, 7 Pick. 303.

4 Phillips v. Bury, 2 Term Rep. 349; Garnett v. Fernand, 6 Barn. & C. 611; Murdock v. Phillips Academy, 12 Pick. 262.

5 See Trustees of Phillips Academy v. King, 12 Mass. 547; Att. Gen. v. Earl of Clarendon, 17 Ves. 491; Dartmouth Coll. v. Woodward, 4 Wheat. 660.

6 Phillips v. Bury, 2 Term Rep. 348; Att.-Gen. v. Price, 3 Atk. 103; Bracken v. Will. & M. Coll. 3 Call, 573.

7 Sanderson v. White, 18 Pick. 328; Allen v. McKean, 1 Sum. 276; Att.-Gen. v. Middleton, 2 Ves. Sr. 327; In Re Christ Church, Law R. 1 Ch. App. 526.

8 State v. Adams, 44 Mo. 570; Dartmouth College v. Woodward, 4 Wheat. 676; Gilman v. Hamilton, 16 Ill. 225.

9 State v. Adams, 44 Mo. 570.

10 Phillips v. Bury, 2 Term Rep. 350; Rex v. Bishop of Ely, 1 Black. W. 89.

11 Phillips v. Bury, 2 Term Rep. 350.

12 Att.-Gen. v. Locke, 2 Atk. 166.

13 Nelson v. Cushing, 2 Cush. 530.

14 Rex v. Windham, Cowp. 377; and see Reg. v. Kendall, 1 Ad. & E. 385.

15 Rex v. St. John's College, 4 Mod. 233; and see Rex v. Bishop of Ely, 1 Black. W. 82.

§ 196. Jurisdiction of the courts.-At common law, no appeal lies from the sentence of a visitor. Within the scope of the general visitorial power, his determinations are final and conclusive.2 But an appeal is sometimes given by the charter, or act of incorporation.3 And where there is a clear and distinct trust, a court of equity will administer and enforce it as much where there is a visitor, as where there is none. And when visitors, in the exercise of their power, so act as to be guilty of a breach of trust, then a court of equity may interpose, as the representative of the public, to prevent and restrain such breach of trust, and, if necessary, may remove a trustee and substitute another.5

1 Phillips Bury, 2 Term Rep. 346; Rex v Bishop of Ely, id. 290: Murdock's Appeal, 7 Pick. 322. Compare Matter of Dean of York, 2 Q.

B. 1; and see Latimer v. Eddy, 46 Barb. 61: Harper v. Straws, 14 B. Mon. 48.

2 Att.-Gen. v. Talbot, 3 Atk. 662; and see Reg. v. Dean etc. of Ro chester. 17 Q. B. 1; Reg. v. Dean of Chester, 15 id. 513.

3 Murdock's Appeal, 7 Pick. 322.

4 Att.-Gen. v. St. Cross Hospital, 17 Beav. 435; Att.-Gen. v. Sidney Sussex College, Law R. 4 Ch. 722; Shore v. Wilson, 9 Clark & F. 355; Thornton v. Howe, 31 Beav. 14; Att.-Gen. v. Dangars, 33 id. 621.

5 Dangars v. Rivaz, 28 Beav. 233; Att.-Gen. v. Garrison, 101 Mass. 223; Att.-Gen. v. Tudor Ice Co. 104 id. 239; S. C. 6 Am. R. 227; Att.-Gen. v. Utica Ins. Co. 2 Johns. Ch. 384.

CHAPTER XVII.

DISSOLUTION.

5 197. Grounds of, in general.

§ 198. By legislative act.

5 199. By loss of members.

$ 200. Effect of omission to elect officers.
$201. By voluntary surrender of franchises.
§ 202. Effect of insolvency.

§ 203. By forfeiture of charter.

§ 204. Transfer of assets.

§ 205. Non-user.

§ 206. Dissolution by winding up.

§ 207. Effect of dissolution in general.

§ 208. Effect upon pending suits.

§ 209. Effect upon contracts.

$ 210. Rights of creditors, stockholders etc.
§ 211. Revival of corporation.

§ 197. Grounds of, in general.—Corporations may be dissolved, or lose their legal existence, first, by the act of the legislature; second, by the loss of all their members, or of an integral part; third, by a surrender of their charters; fourth, by a forfeiture of their franchises.1 And where the act of incorporation fixes a definite time at which the charter shall expire, when that time arrives, the corporation is dissolved.2

1 New York etc. Iron Works v. Smith, 4 Duer, 362; Revere v. Boston Copper Co. 15 Pick. 351; McIntire Poor School v. Zanesville etc. Manuf. Co. 9 Ohio, 203; Boston Glass Manufactory v. Langdon, 24 Pick. 49; Penobscot Boom Corp. v. Lamson, 16 Me. 224; Canal Co. v. Railroad Co. 4 Gill & J. 1.

2 La Grange etc. R. R. Co. v. Rainey, 7 Cold. 420; and see Bank of Miss. v. Wrenn, 3 Smedes & M. 791; Sala v. City of New Orleans, 2 Wood, 188; Wilson v. Tesson, 12 Ind. 285; Commercial Bank v. Lock. wood, 2 Har. (Del.) 8.

§ 198. By legislative act.-In England, the crown may create, but cannot at pleasure dissolve, a corporation, or, without its consent, alter or amend its charter.1

But parliament, being theoretically omnipotent, may do this, although there are but a few instances of the power having ever been exercised.2 In this country, the legis lature cannot dissolve a private corporation, whether civil or eleemosynary, without its consent,3 except in cases where the power to repeal is reserved. Such reserved power may exist either in the charter, in the general acts for incorporation, in the general laws of the state, or in the constitution of the state. And the power may be qualified, or it may be unqualified. But in all cases, the power is one which should be exercised with the greatest moderation and caution. And a corporation cannot be divested of any of the essential rights and privileges conferred by its charter, under the pretense of police regulations. As it respects public or municipal corporations, the legislature has supreme power over them, and may increase or diminish their corporate powers, enlarge or reduce their privileges, or annul their corporate existence, as, in its judgment, the general good requires, 10 and irrespective of consent or objection on the part of the inhabitants of the municipality." And where a private corporation, and a municipal corporation within the limits of the territory of the former, were created by the same act, it was held that the charter of the latter might be repealed by the legislature, without reference to the former. 12 But grants of property and of franchises to public corporations, coupled with an interest, are beyond legislative control equally with the property of private corporations.13

1 See Regents etc. v. Williams, 9 Gill & J. 365; Dartmouth Coll.. Woodward, 4 Wheat. 657; Smith's Case, 4 Mod, 54.

2 Rex v. Amery, 2 Term Rep. 568; and see Vanhorne v. Dorrance, 2 Dall. 307; County Comm'rs v. Cox, 6 Ind. 403; Lea v. American etc. Caual Co. 3 Abb. Pr. N. S. 1.

3 Dartmouth Coll. v. Woodward, 4 Wheat. 518; Allen r. McKeen, 1 Sum. 276;y of Louisville v. University of Louisville, 15 B. Mon. 642; Fc etc. Plank R. Co. v. Woodhull, 25 Mich. 99; Allen v. Buchanan, 9 Phia. 283; Hamilton r. Keith, 5 Bush, 458; Mobile etc. R. R. Co. v. Mosely, 52 Miss. 127; Woodfork v. Union Bank, 3 Cold. 488. Compare State v. South etc. R. R. Co. 24 Tex. 80; Toledo Bank v. Bond, 1 Ohio St. 622.