and yet, if in such case the purchasers would take anything at all, they certainly could not take less than the right to be a banking corporation, with all the powers and privileges conferred by the charter, for these rights are of the very essence of the franchise; and consequently, the one could not be thus acquired without, by the same act, securing the others, a view which, as already indicated, has no sanction in reason or authority.

While statements are to be found on this subject in some of the text-books, as well as in some of the decided cases, which cannot be reconciled with the conclusion we have reached, yet we are clearly of opinion that a corporation, in the absence of statutory authority, has no right to sell or transfer its franchise, or any property essential to its exercise, which it has acquired under the law of eminent domain. This proposition, in our judgment, is sustained both by reason and the decided weight of authority. Black, et al. v. Delaware and Raritan Canal Co., 24 N. J. Eq. 455; Freeman on Execution, secs. 179, 180; Pearce on Railroads, 496-1; Jones on Mortgages, sec. 161; Rorer on Judicial Sales (2d ed.), 222; Archer v. Terre Haute and Indianapolis Railroad Co., 102 Ill. 493; Bruffett v. Great Western Railroad Co., 25 Id. 353; Chicago and Rock Island Railroad Co. v. Whipple, 22 Id. 105; Ottawa, Oswego and Fox River Valley Railroad Co. v. Black, 79 Id. 262.

The circuit court having reached this conclusion, its order and judgment will be affirmed.

Judgment affirmed.34

34 "The franchise of becoming and being a corporation, in its nature, is incommunicable by the act of the parties and incapable of passing by assignment. "The franchise to be a corporation,' said Hoar, J., in Commonwealth v. Smith, 10 Allen, 448 455, 'clearly cannot be transferred by any corporate body of its own will. Such a franchise is not, in its own nature, transmissible.' * * * The essential properties of corporate existence are quite distinct from the franchises of the corporation. The franchise of being a corporation belongs to the corporators, while the powers and privileges, vested in and to be exercised by the corporate body as such, are the franchises of the corporation. The latter has no power to dispose of the franchise of its members, which may survive in the mere fact of corporate existence, after the corporation has parted with all its property and all its franchises." Matthews, J., in Memphis &c. Railroad Co. v. Railroad Commissioners (1884) 112 U. S. 609, at page 619, 28 L. ed. 837, 5 Sup. Ct. 299.

See also Mercantile Bank v. Tennessee (1896) 161 U. S. 161, 40 L. ed. 656, 16 Sup. Ct. 461.-Eds.

CHAPTER II.

REQUISITES OF CORPORATE EXISTENCE.

Section 1.-Corporations De Jure.

A.

SPECIAL ACTS AND GENERAL LAWS.

Co. Lit. 250a. And this body politike, or incorporate, may commence, and be established three manner of ways, viz., by prescription, by letters patents, or by act of parliament.

1 Bl. Com., 474.-The king, it is said, may grant to a subject the power of erecting corporations, though the contrary was formerly held; that is, he may permit the subject to name the person and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet qui facit per alium, facit per se. * * * In this manner the chancellor of the University of Oxford has power by charter to erect corporations; and has actually often exerted it.

STATE ON INFORMATION OF CARLTON v. DAWSON.

1864. 22 Ind. 272.

WORDEN, J.-This was an information against the appellees, charging them in substance, with usurping and exercising the powers and functions of a railroad corporation, under the pretended authority of an act of the legislature, entitled, "An act to Incorporate the Fort Wayne and Southern Railroad Company," approved January 15, 1849. It is alleged that the corporators named in the act did not accept the charter and franchises until June, 1852; that as there had been no acceptance of the charter up to November 1, 1851, the act was then repealed by the Constitution of the State, which then took effect.1 Prayer for judgment of ouster.

1 The Constitution (Art. 11, sec. 13) contained this provision: "Corporations, other than banking, shall not be created by special act, but may be formed under general laws." See State v. Dawson (1861) 16 Ind. 40. Most of the states by their constitutions now forbid the creation of privat? corporations by special act. The constitutional provisions and the general incorporation laws of the various states will be found digested in Frost's Incorporation and Organization of Corporations, Parker's Corporation Manual, or Stimson's Amer. Stat. Law. As to what objects are authorized by general incorporation laws and how definite the statement of these objects must be, see Machen's Modern Law of Corporations, secs. 48-50.-Eds.

Issue, trial, finding, and judgment for the defendants.
The case comes before us on evidence.

In the case of The State v. Dawson, 16 Ind. 40, it was held that if the charter was not accepted by the corporators until the new constitution took effect, it was thereby repealed, and no valid organization could thereafter take place under the act. The question was there decided on demurrer. In the case before us, an issue of fact was made and tried; and the evidence shows, as we think, pretty conclusively, that the corporators named in the act did accept the charter before the new constitution took effect.

The act in question provides that Allen Hamilton and others, naming them, and their associates and successors in office, etc., "are hereby constituted a body corporate and politic, by the name and style of The Fort Wayne and Southern Railroad Company, and shall be able and capable in law to sue and be sued," etc.

It was not only proven that the corporators applied to the legislature for the passage of the act in question, already drawn up as passed, excepting the clause authorizing a repeal; that one of the corporators appeared before a legislative committee, to whom the bill was referred, and on behalf of himself and the other corporators, explained to the committee the objects of the proposed organization; but it was also proven that, after the legislature appended the clause authorizing a repeal in certain cases, such of the corporators as were present, one of whom, at least, appears to have been acting by the authority, express or implied, of those who were absent, met together and consulted upon the amendment, and agreed to accept the charter in that form. If the evidence stopped here, it would be clearly sufficient to show an acceptance. "If a peculiar charter is applied for, and it is given, there can be no reasonable ground to doubt of its immediate acceptance." Ang. & Ames on Corp., § 83.

But in addition to this, the evidence shows that in October, 1851, a meeting, was held of a majority of the corporators named, when they determined to build the contemplated railroad, under the charter.

The corporators having accepted the charter before the constitution of 1851 took effect, it became a valid, binding contract between the State and the corporators, which could not be abrogated or impaired except for cause.

Per Curiam.-The judgment below is affirmed.2

2 Rutter v. Chapman (1841) 8 M. & W. 1, esp. p. 17; City of Atlanta v. Gate City Gas Light Co. (1883) 71 Ga. 106; Harriman v. Southam (1861) 16 Ind. 190; Gillespie v. Fort Wayne & S. R. Co. (1861) 17 Ind. 243; Taylor v. Newberne (1885) 55 N. Car (2 Jones Eq.) 141, esp. 146-7, 64 Am. Dec. 566. "It has long been the received opinion that there must be an acceptance, but the mode of proving it has always been left open. In general, the acceptance of a charter has been proven by evidence of acting under it." Lord Tenterden, C. J., in R. v. Hughes (1827) 7 B. & C. 708, at p. 718. See Perkins v. Sanders (1879) 56 Miss. 733; St. Joseph &c. R. Co. v. Shambaugh (1891) 106 Mo. 557, 17 S. W. 581.

"The acceptance must not only be within reasonable time, but it must be of that which is offered." Irving, J., in Bonaparte v. Baltimore &c. R. Co. (1892) 75 Md. 340, 23 Atl. 784.

FRANKLIN BRIDGE CO. v. WOOD.

1853. 14 Ga. 80.

ASSUMPSIT in Heard Superior Court.

The Franklin Bridge Company was incorporated under the Act of the Legislature of 1843, to prescribe the mode of incorporating companies for certain purposes, by an order of the Inferior Court of Heard County.

The company sued the defendant, Wood, for his subscription to their stock.

The defendant pleaded that the company was not legally incorporated; contending that the act of the Legislature referred to, was unconstitutional and void.

Upon argument, the court held that the act aforesaid was unconstitutional, and nonsuited the plaintiffs.

To this decision plaintiff excepted.

LUMPKIN, J.-Is the Act of 1843 and that of 1845, amendatory thereof, pointing out the manner of creating certain corporations and defining their rights, privileges, and liabilities, unconstitutional?

By the first section of the Act of 1843, it is provided "That when the persons interested shall desire to have any church, camp-ground, manufacturing company, trading company, ice company, fire company, theatre company, or hotel company, bridge company, and ferry company, incorporated, they shall petition in writing the Superior or Inferior Court of the county where such association may have been formed, or may desire to transact business for that purpose, setting forth the object of their association, and the privilege they desire to exercise, together with the name and style by which they desire to be incorporated; and said court shall pass a rule or order, directing said petition to be entered of record on the minutes of said court.' Section 2 enacts "That when such rule or order is passed, and said petition is entered of record, the said companies or associations shall have power respectively, under and by the name designated in their petition, to have and use a common seal; to contract and be contracted with; to sue and be sued; to answer and be answered unto in any court of law or equity; to appoint such officers as they may deem necessary; and to make such rules and regulations as they may think proper for their own government; not contrary to the laws of this State; but shall make no contracts or purchase or hold any property of any kind, except such as may be absolutely necessary to carry into effect the object of their incorporation. Nothing herein contained shall be so construed as to confer banking or insurance privileges on any company or association herein enumerated; and the individual members of such manufacturing, trading, theatre, ice, and hotel com

Acceptance at a meeting held without the state granting the charter is invalid. Smith v. Silver Valley Min. Co. (1885) 64 Md. 85, 20 Atl. 1032, 54 Am. Rep. 760. Cf. Heath v. Silverthorn & Lead Mining & Smelting Co. (1875) 39 Wis. 146.-Eds.

panies, shall be bound for the punctual payment of all the contracts of said companies, as in case of partnership."

The third section declares that "No company or association shall be incorporated under this act, for a longer period than fourteen years; but the same may be renewed whenever necessary, according to the provisions of the first section of this act."

The fourth section confers upon the superior and inferior courts. respectively, the power to change the names of individuals.

Section Fifth. "For entering any of said petitions and orders, and furnishing a certified copy thereof, the clerk shall be entitled to a fee of five dollars; except in cases of applications by individuals. for the change of names,-in which case, the clerk of said court shall be entitled to the fee of one dollar. And that such certified copy shall be evidence of the matters therein stated in any court of law and equity in this state." Cobb's Digest, 542, 543.

By the Act of 1845 the provisions of the Act of 1843 are extended to all associations and companies whatever, except banks and insurance companies; and the individual members of all such incorporations are made personally liable for all the contracts of said associations or companies. Ibid.

The argument against the validity of the charter of the Franklin Bridge Company, created under these statutes, is this:

1. That in England, corporations are created and exist by prescription, by Royal Charter, and by Act of Parliament. With us they are created by authority of the Legislature, and not otherwise. That to establish a corporation is to enact a law; and that no power but the legislative body can do this.

2. That legislative power is vested under our Constitution, in the General Assembly, to consist of a Senate and House of Representatives, to be elected at stated periods by the citizens of the respective counties.

3. And that the General Assembly is bound to exercise the power of making laws thus conferred upon them by the people in the primordial compact, in the mode therein prescribed, and in none other; and that a law made in any other mode is unconstitutional and void. That the Legislature is but the agent of their constituents; and that they can not transfer authority delegated to them to any other body, corporate or otherwise, not even to the Judiciary, a co-ordinate department of the government, unless expressly empowered by the Constitution to do so. That to do this would be to violate one of the fundamental maxims of jurisprudence as well as of political science, namely, delegata potestas non potest delegari. *

* *

4. It was formerly asserted that in England the act of incorporation must be the immediate act of the king himself, and that he could not grant a license to another to create a corporation. 10 Reports, 27. But Messrs. Angell and Ames, in their Treatise on Corporations, state that the law has since been settled to the contrary; and that the king may not only grant a license to a subject to erect a particular