impliedly conferred; but we shall treat further of this subject, in the third chapter of this title, where "Corporate Powers" are considered.

Individuality. This is one of the essential attributes of a corporation; it constitutes its raison d'etre; it is for this very object the law invests it with its powers, and rights, and duties. It was said, in Providence Bank v. Billings (4 Pet. 562), by Chief Justice Marshall, that "the great object of an incorporation is to bestow the character and properties of individuality upon a collective and changing body of men." It was, at first, an important step in social advancement, when the law invested a number of individuals with this attribute of personality, and enabled them to act in a collective capacity, acquiring rights, and discharging duties, as an individual. This idea is by no means modern; we find that the Roman law recognized the union of many persons in one body, and invested it with some of the rights, powers, and duties, of a natural person. "The appellation given by the Romans to the companies of tradesmen, religious societies, &c., which they established, were universitates, as constituting one whole out of many individuals; and collegia, from being collected together." (Angell & Ames, § 46.) The formation of such collective bodies, by public authority, may, however, be traced to the Greeks. (Ayliffe's Treatise, Civil Law, 197.)

While the conferring of some of the rights and powers of a natural person on a collective body, in this manner, has aided the development of effort and enterprise, and secured greater results than could ever be attained by the isolated labors of separate individuals, it has been attended with corresponding drawbacks, in failing to secure the same accountability from this artificial body as from a natural person. From the nature of the body thus invested with a sort of personality, it cannot be held amenable to law, for many violations of duty, as a natural person can. And herein lies the defect and the danger of such artificial bodies. They may often work a great deal of irremediable mischief, on account of the very attributes they possess. Thus it is held, that a corporation can neither be imprisoned nor punished; it cannot be deemed a moral agent, subject to moral obligation. (1 Kyd 71; 2 Bulst. 233.) On this account, a corporation is said to have no soul. (10 Rep. 32, b.) By the common law, a corporation can be indicted, as for a nuisance. (Regina v Scott, 3 Q. B. 543; Susquehanna Turnpike Co. v. People, 15 Wend. 267.) In Ohio, there is no common law of crimes, and no statute providing for criminal process against a corporation. Held, that a corporation was not indictable, under a statute, for a nuisance, as a “person." (State v. Cincinnati Fertilizer Co., 24 Ohio St. 611.) [As to criminal proceedings against corporations in California, see §§ 1390-7 of Penal Code, in Appendix.]

But in general, where the word "person," or "individual,” is used in a statute conferring rights, or imposing liabilities, not involving personal punishment, a corporation is included, if it fall within the general reason and design of the statute, unless expressly excepted. (Angell & Ames, § 6.) Thus, under the mill-dam act of Wisconsin, a corporation has been deemed a person. (Fisher v. Horizon Co., 10 Wis. 351.) A corporation has been held to be included in the term

"'individual " in a tax law. (Otis Co. v. Ware, 8 Gray 509.) Corporations can suffer damage from libel, and maintain action as an individual. (Trenton Ins. Co. v. Perrine, 3 Zabr. 402; Shoe and Leather Bank v. Thompson, 23 How. Pr. 253; Metropolitan, &c., Co. v. Hawkins, 4 Hurl. & N. 87.)

The Code has settled a rule as to the construction of the word "person." In § 14, it is provided that "where the term 'person' is used to designate the party whose property may be the subject of any offense, action, or proceeding, it includes this State, any other State, government, or country, which may lawfully own any property within this State, and all public and private corporations, or joint associations, as well as individuals. The word 'person,' except when used by way of contrast, includes, not only human beings, but bodies politic or corporate."

* * *

Continuity. A corporation has been said to possess the attribute of immortality; but this is held to be an erroneous idea. Chief Justice Marshall (4 Wheat. 636), among other properties, includes immortality, by which the body is enabled to have a perpetual succession. This was an old idea; but Kyd says, "that a body framed by the policy of man, a body whose parts and members are mortal, should in its own nature be immortal in the common acceptation of the word, seems beyond the reach of common understandings." (1 Kyd, 15.) "When it is said, therefore, that a corporation is immortal, it must be understood theoretically; and we can understand nothing more than that it may exist for an indefinite duration. The authorities which have been cited, if intended to prove its immortality in any other sense, do not warrant the conclusion drawn from them." (Angell & Ames, § 8.) The Code properly gives a corporation a continuance, according to the time prescribed by law, because the policy is, now, to limit the duration of a corporation.

284. Corporations, Public and Private, distinguished. Corporations are either public or private. Public corporations are formed or organized for the government of a portion of the State; all other corporations are private.

Classification. The Code has properly simplified the division of corporations. The former divisions were confusing, and besides were not applicable to the condition of things here. Kyd divides them into corporations, sole and aggregate, and into ecclesiastical and lay, and lay corporations again into eleemosynary and civil. (1 Kyd, 22.) Blackstone makes the division into aggregate and sole, ecclesiastical and lay, civil and eleemosynary. (1 Bl. Com. 469-70.) Prof. Wooddeson does the same. (1 Wood. Lect. 471.) Chitty adopts Kyd's classification. (Chitty on Prerog., 122.)

The division of corporations into public and private, was not known or clearly established before the decision in the Dartmouth College case, where the distinction was first clearly recognized and established. We have shown in the introduction that this distinction was hardly to be supported by the case quoted. However, the dis

tinction was then established, and has been observed since in our text-books and cases, and the Code here adopts it.

Public Corporations are, generally speaking, counties, cities and towns existing for public purposes. They are the auxiliaries of government in the important business of municipal rule. (Bonaparte v. Camden R. R. Co., 1 Bald. C. C. 223; Angell & Ames, § 31.) In Society, etc. v. Butler (1 Beasley, 498), a company incorporated with the right to take water from a river for the purpose of furnishing power for manufacturing uses, was considered as a quasi public corporation. (See Foster v. Fowler, 60 Penn. St. 27.) Public corporations are such as are created for political purposes, with powers to be exercised for the public good. (Tinsman v. Delaware & Raritan Canal, 18 N. J. Law, 200.)

Private Corporations are those in which individuals have a special or pecuniary interest, not liable to be controlled or affected by governmental interference. "Private corporations are indisputably the creatures of public policy, and in the popular meaning of the term, may be called public; but yet if the whole interest does not belong to the government (as if the corporation is created for the administration of civil or municipal power), the corporation is private." (Angell & Ames, § 31.)

A bank created by the government for its own use, but the stock of which is owned in whole or in part, by private persons, is a private corporation. (Miners' Bank v. U. S., 1 Green. Iowa, 553; Bank of U. S. v. McKenzie, 2 Brock. C. C. 393.) A turnpike company in which the State holds stock, is a private corporation. (Turnpike Co. v. Wallace, 8 Watts. 316.) In the Bank of the United States v. Planters' Bank of Georgia (9 Wheat. 907), the State was interested as one of the corporators, yet it was held a private corporation. In State Bank of South Carolina v. Gibbs (3 McCord, 377), it was held that the bank was a private corporation, although the State owned the whole interest.

In Angell & Ames, § 32, after a review of the authorities, it is laid down: "That when the sovereign becomes a member of a joint stock corporations the right of sovereignty with respect to the transactions of the company, is divested, and the character is assumed of a private citizen. But where the corporation is composed exclusively of officers of the government, having no personal interest in it, or with its concerns, and only acting as the organs of the State in effecting a great public work, it is a public corporation." The division made in this section has the merit of conciseness, but it may be questioned if it is complete or expressive.

Private corporations, as distinguished from public, under this section, include a variety of organizations, very diverse in their management and purposes, and variously affecting the public. There are some formed for the mere purpose of acting in a collective capacity and holding a certain amount of property, without much or any interference with the public; while there are others on whom are conferred vast powers and privileges, to whom are delegated some of the political powers of the government, which give them a right of interference and control largely affecting the public. Some of these can exercise,

under delegation from the State, the sovereign power of eminent domain.

There ought, therefore, to be some distinction made between these two classes of private corporations, involving different rights and liabilities. There is a precise and clear classification given in Miners' Ditch Co. v. Zellerbach (37 Cal, 543), where it is said: "There are three classes of corporations, to-wit: Public municipal corporations, the object of which is to promote the public interest; corporations technically private, but of a quasi public character, having in view some public enterprise in which the public interests are involved, such as railroad, turnpike, and canal companies; and corporations strictly private."

285. Private Corporations, how formed. Private corporations may be formed by the voluntary association of any five or more persons, in the manner prescribed in this article. A majority of such persons must be residents of this State.

Formation. The old idea of a corporation was that it was a body to which was delegated a part of the sovereign power of the State; and, therefore, its rights and privileges-its existence, must emanate from the sovereign. Domat says: "Communities, ecclesiastical and secular, are assemblies of many persons united in one body, that is formed with the prince's consent, without which these kinds of assemblies would be unlawful." (Civil Law, Prel. Book, tit. II, § 2; Dig. 47, lib. 22.)

In England, at first, they were created by the act of the sovereign, but when it was intended to establish a corporation invested with powers which the king could not confer, recourse must be had to the legislature. (1 Kyd. 61; Cro. Car. 73, 87.)

As the king could create a corporation, so he could delegate his power to another on the maxim, qui facit per alium, facit per se. (1 Bl. Com. 473.)

This section of the Code carries out a principle that is now well established, that no special privileges or rights ought to be conferred by the legislative power, by special acts, from which have arisen, here and elsewhere, the gravest abuses. It throws the privilege open to all who choose to comply with the directions prescribed; but the corporations, so formed, are none the less amenable to legislative control. Formed in this manner, they owe their existence to the legislative will, as much as if they were incorporated by special charter.

Who Forms. As the section stood before the amendments of 1873-4, it required a majority to be citizens of this State. Now it is only necessary that the majority of the five corporators be residents. This provision is evidently dictated under the liberal policy of the times, from the same spirit that removes the old disabilities of aliens to hold real estate. The residence, here required, must be a bona fide residence, as has been held in actions for divorce, where the party is required to have been a resident of the State for a certain

period. The law would hardly be satisfied by an occasional visit or temporary stay in the State. (See § 129, Civil Code.)

It is necessary to observe that a majority of the directors are required to be citizens of the State, by § 305.

286. Corporations may be formed for any lawful purpose. Private corporations may be formed for any purpose for which individuals may lawfully associate themselves.

The Purposes for which a corporation may be formed, are given by this section the widest limit; there are no longer the restrictions laid down heretofore. The freedom thus given, shows how far we have advanced from the ideas that formerly prevailed, when corporate privileges were jealously conceded, and the objects for which corporations could be formed very limited. It seems the Romans looked upon such bodies as dangerous, for when an application was made for the institution of a fire company to Trojan, he is said to have observed "that societies of that sort had greatly disturbed the peace of the cities; and he observed that whatever name he gave them, and for whatever purpose they might be instituted, they would not fail to be mischievous." (2 Kent Com. 217.)

287. How Corporations may continue their existence under this Code. Any corporation existing on the first day of January, one thousand eight hundred and seventy-three, formed under the laws of this State, and still existing, which has not already elected to continue its existence, under the provisions of this Code applicable thereto, may, at any time hereafter, make such election by the unanimous vote of all of its directors, or such election may be made at any annual meeting of the stockholders or members, or at any meeting called by the directors expressly for considering the subject, if voted by stockholders representing a majority of the capital stock, or by a majority of the members, or may be made by the directors, upon the written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote, or upon the written consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meeting, and a majority of the directors, must be filed in the office of the clerk of the county where the original articles of corporation are filed,