extraterritorial action, even within the limits of their charter powers. While the cases are not uniform upon this subject, the weight of authority seems to be that the company's power in the foreign jurisdiction extends only to those acts which may be done through the mediation of agents. Those corporate acts which must be done by the company itself, through the persons of its corporators or stockholders, must be performed where the company has a legal existence; the most obvious of these, are meetings for the acceptance of the charter and organization of the corporation. In the leading case of Miller v. Ewer,' the Supreme Judicial Court of Maine clearly indicated the line of demarkation, between the powers which a corporation may, and those which it may not exercise in a foreign jurisdiction. The contest was as to the validity of a mortgage purporting to be executed by a Maine corporation. On the trial, after the charter was put in evidence, the records of the board of directors were introduced, from which it appeared that a meeting of the corporators had been called in New York City for the organization of the company; that the charter was there accepted and officers chosen ; that at a subsequent meeting of the directors the execution of the mortgage was authorized. The court held that the officers were without authority and the mortgage void. Said Shepley, J.: "It is often stated in the books that a corporation is created by its charter. This is not precisely correct. The charter only confers the power of life, or the right to come into existence, and provides the instruments by which it may become an artificial being

8 27 Me. 509.

or acting entity. Such a corporation has been well defined to be an artificial being, invisible, intangible and existing only in contemplation of law. The instruments provided to bring the artificial being into life and active operation are the persons named in the charter, and those who by virtue of its provisions may become associated with them. Those persons or corporators, as natural persons, have no such power. The charter confers upon them a new faculty for this purpose, a faculty which they can have, only by virtue of the law which confers it. That law is inoperative beyond the bounds of the legislative power by which it is enacted. As the corporate faculty cannot accompany the natural persons beyond the bounds of the sovereignty which confers it, and they cannot possess or exercise it there, can have no more power there, to make the artificial being act than other persons not named or associated as corporators, any attempt to exercise such a faculty there is merely an usurpation of authority by persons destitute of it, and acting without any legal capacity to act in that manner. follows that all votes or proceedings of persons professing to act in the capacity of corporators, when assembled without the bounds of the sovereignty granting the charter, are wholly void.""

It

$ 13.-Same-Grant of Corporate Franchise in Præsenti. But where the charter or statute creates a corporation in præsenti, the view has obtained that no acceptance of the charter or organization meeting is essential to the legal existence of the

1 Miller v. Ewer, 27 Me. 518, 46 Am. Dec. 621. See also Freeman v. Machias W., P. & M. Co., 38 Me. 343; Smith v. Silver Val. M. Co., 64 Md. 85, 10 Am. & Eng. Corp. Cases, 1, 54 Am. Rep. 760.

company. In Ohio, etc. R. Co. v. McPherson,' which was a suit in a Missouri court by an Illinois corporation on a subscription to its stock, one defense was that plaintiff had never been legally organized in Illinois and had no legal existence. The court held, however, that the language of the Illinois charter, which provided that the persons named therein, "and such other persons as might associate with them for that purpose, are hereby made and constituted a body-corporate and politic by the name and style of the Ohio and Mississippi Railroad Company with perpetual succession," and vested the corporate powers in a board of directors, and named the first board, who were to hold office until their successors were elected and qualified, had the effect of creating a corporation in præsenti; that no acceptance of the charter was necessary, and that it was immaterial whether the organization meeting was held in Illinois or elsewhere.' The doctrine of this decision is doubtful both on principle and authority. The Supreme Court of Missouri itself, in the more recent case of Camp v. Byrne,' where it was urged in defense to a suit on a note given for a subscription to the stock of a Tennessee

1 35 Mo. 13.

2 It is not altogether clear just what language will be regarded as creating a corporation in præsenti. The mere fact that the corporators are named and the corporate power vested in them will not of itself be sufficient. In Smith v. Silver Valley M. Co., 64 Md. 85, 10 Am. & Eng. Corp. Cas. 1, 54 Am. Rep. 760, the charter of a North Carolina company named five corporators and provided that they should "manage the affairs of said corporation as directors until others are elected or appointed;" that the corporation should exist for thirty years, and that the act should "be in force from and after its ratification." The court

held that the mere grant of such a charter did not create the corporate body; that an acceptance of the charter and an organization under it were necessary before the corporate life could begin.

3 41 Mo. 525.

corporation that the organization meeting took place in St. Louis, admitted the invalidity of the incorporation on the authority of Miller v. Ewer,' but held that defendant was estopped by his dealings with the defendant from questioning its legal capacity. And other cases, too, which seem to support the doctrine, really rest upon a principle of estoppel. Thus, in Heath v. Silverthorn L. M. & Sm. Co., the Wisconsin court held that a corporation, when sued upon contracts made by its officers, will be estopped from setting up the defense that its de facto officers were without legal authority because its first meeting, for the purpose of organization and the election of officers, and all subsequent meetings were held without the State of its creation."

2

§ 14. Same-Other Corporate Acts.-The distinction formulated in Miller v. Ewer, between corporate acts proper and those things which may be done through the company's agents, has been universally recognized by the courts of other States as a proper test of the validity of a corporation's extraterritorial transactions. The line of demarkation between the two classes of acts is not always clear, and may be most plainly indicated by the aid of illustrations. Thus, we have seen that the organization of the company and the acceptance of

127 Me. 509, 46 Am. Dec. 619.

239 Wis. 146.

5

3 See also Galveston, etc. R. Co. v. Cowdrey, 11 Wall. 459. 4 27 Me. 509, 46 Am. Dec. 619.

Wright v. Bundy, 11 Ind. 404; Aspinwall v. Ohio, etc. R. Co., 20 Ind. 492, 83 Am. Dec. 329; Ames v. Conant, 36 Vt. 744; Wood Hydraulic M. Co. v. King, 45 Ga. 34; Bellows v. Todd, 39 Iowa, 209; Ormsby v. Vermont Copper Co., 56 N. Y. 623; Franco-Texan Land Co. v. Laigle, 59 Tex. 339; Smith v. Silver Valley M. Co., 64 Md. 85, 10 Am. & Eng. Corp. Cases, 1, 54 Am. Rep. 760; Saltmarsh v. Spaulding, 147 Mass.

the charter is a corporate act. So, too, is a change in the internal organization of the company, a modification or amendment of the by-laws, which, as a corporation, it is authorized to make for the government of its members.' Also a resolution passed at a meeting of a board of directors, fixing the times and installments in which stock subscriptions must be paid. A meeting of stockholders and an election of officers thereat is a strictly corporate act.*

3

§ 15. Same-Exception-Consolidated Companies. -An exception to the rule that a corporation may not do a corporate act beyond the limits of the State from which it receives its charter, is found in the case of a company chartered by several States, and which, as we shall see hereafter, is a domestic corporation in each. A stockholders' meeting of such a consolidated company may be held in any one of the States in which it has a domicile, and its proceedings will be valid as to property of the company in all of them, without the necessity of repeating the meeting in any other of those States." So, too, of corporate acts done at directors' meetings.

6

§ 16. Same-Acts of Directors.-The capacity of the board of directors is two-fold; usually they are

1 Miller v. Ewer, 27 Me. 509, 46 Am. Dec. 619; Freeman v. Machias W. P. & M. Co., 38 Me. 343; Smith v. Silver Valley M. Co., 64 Md. 85, 10 Am. & Eng. Corp. Cases, 1, 54 Am. Rep. 760. But see Ohio, etc. R. Co. v. McPherson, 35 Mo. 13.

2 Ormsby v. Vermont Copper Co., 56 N. Y. 623.

3 Aspinwall v. Ohio, etc. R. Co., 20 Ind. 492, 83 Am. Dec. 329. tra: Ohio, etc. R. Co. v. McPherson, 35 Mo. 13.

Con

Franco-Texan Land Co. v. Laigle, 59 Tex. 339. Contra: Ohio, etc.

R. Co. v. McPherson, 35 Mo. 13.

5 Graham v. Boston, etc. R. Co.. 118 U. S. 161; Covington, etc. Bridge Co. v. Mayer, 31 Ohio St. 317.

6 See Culbertson v. Wabash Nav. Co., 4 McLean, 544.