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liability of its stockholders for the debts of the corporation, at least to the amount of their stock over and above their.subscription. This liability may be secured by an express provision in the act of incorporation. Where it is to exceed the amount of the stock, it must be secured in that form. In the absence of any such provision in the act of incorporation, I presume this provision of the constitution would enter into and form part of the act of incorporation, and to that extent execute itself. In either case, however, the act of incorporation, the grant of the charter, must be in some such form as will secure this liability. It must require of the individuals availing themselves of its provisions some acts as such, under and in pursuance of it, as will subject them individually to its provisions, or to this provision of the constitution in regard to liability. If it fails to do this, it is simply unconstitutional and void.

The act of 1863, under which the defendants claim title, contains no provision imposing liability upon individuals who may become stockholders under it. Whether the act, properly interpreted, does or does not require of the persons becoming incorporated under its provisions, acts or proceedings which will secure their individual liability as stockholders, is totally immaterial to the present case. Because, if it is to be interpreted as requiring such acts-namely, an organization of individuals under the act, such as is required by the act of April 11, 1861; a deed to be made to, and accepted by them, or a taking of stock by them in the company thus organized-then the defendants have put a wrong interpretation upon the act, and have failed to comply with its provisions. On the other hand, if they have rightly interpreted the act, then the act itself is unconstitutional and void, for the want of adequate provisions to secure the individual liability of stockholders becoming incorporated under its provisions. I presume it is not claimed on behalf of defendants that they have done any act, by way of organization, the taking of stock, or the acceptance of the deed made under the act of 1863, which subjects them, as individuals, to any liability whatever beyond that incurred by becoming members of the foreign company. They never organized under the Ohio act; their organization was complete before it was passed. They took no stock under the Ohio act; their stock had already been taken under the Pennsylvania act. Nor was the deed made to, or accepted by them; it was made to, and accepted by the corporation, of which they were members. As such corporation it had no power, by any act whatever, to pledge the individual liability of its stockholders. The powers of a corporation are limited to the common property and common interests of the organization. Over these, and within the scope and purpose of its organization, a majority of its members, acting through and by its officers and agents, can exercise dominion and control, and bind its individual members. Beyond this common fund and outside this scope, the corporation, as such, is powerless to bind its individual members. In some cases it has been found very difficult to determine the exact line between what may be done by a majority of the corporators, thus acting by and through common agents,

and what can only be effected by the individual consent of each and all; but no difficulty of the kind can occur in solving questions of individual liability. There the line is distinctly drawn and marked. The contract by which he becomes such member fixes the boundary between the interests of the stockholder and those which are embarked in the common enterprise, and thus subjected to the common control. And this contract, be it express or implied, must be interpreted in the light of the law as it existed at the time, and under which the organization is had. The private interests and rights of the stockholder, not by this contract, or some subsequent individual act of his, placed in the common fund, or subjected to the corporate control, are as completely outside the reach and power of the corporation as are the property and rights of strangers.

The element of individual liability must be ingrafted upon the stock by the law under which the organization is had, or the stock is taken, and by virtue of that organization or taking, or else by some subsequent individual assent of the stockholder; otherwise he stands liable for no more than the amount which, by his contract with the company, he has agreed to contribute to the common fund.

In this view of the case, it plainly follows, that the defendants have not become members of an Ohio corporation, created under the present constitution of the state, for the reason that they have never subjected themselves to the individual liability which it imposes on stockholders, and which it makes an indispensable element in the creation of all such corporations. Either the defendants have misinterpreted the act of 1863, and wholly failed to conform to its provisions, or, if they have rightly interpreted it, as authorizing the bestowment of a charter upon a foreign corporation, without securing any individual liability of its stockholders, then the act itself is unconstitutional and void. In either alternative the defendants are no legal corporation of Ohio. It is unnecessary, therefore, to inquire whether their charter as a corporation of Pennsylvania, gives them authority, as such corporation, to accept an additional charter from another state; or whether, if they have such authority, it is competent for another state, not having a constitution like ours, thus to grant them a second charter that is, to make the grant directly to the corporation, eo nomine, and not to the individuals composing it. If we concede both the authority to accept a second and foreign charter, and the general power of another state in this manner to make the grant, it is enough for the present case to say, that the power in question has been denied to the legislature of Ohio by her present constitution.

[On the second question the court held that the company, as a foreign corporation, had a right under the Ohio laws to maintain and operate its road in Ohio.]

Judgment of ouster as to being an Ohio corporation.

Note. See, 1845, Babcock v. Western R. Corp., 9 Metc. (Mass.) 553, 43 Am. Dec. 411; 1857, Phillips v. Winslow, etc., Co., 18 B. Mon. (Ky.) 431, 68 Am. Dec. 729; 1864, Shamokin Valley R. Co. v. Lawrence, 47 Pa. St. 465, 86 Am. Dec. 552; 1874, Metz v. Buffalo, etc., R. Co., 58 N. Y. 61, 17 Am. R. 201;

1876, Morgan v. Louisiana, 93 U. S. 217; 1884, Memphis, etc., R. Co. v. R. Commrs., 112 U. S. 609, supra, p. 143; 1885, Chesapeake, etc., R. Co. v. Miller. 114 U. S. 176; 1887, Lawrence v. Morgans' L. & T. R., etc., Co., 39 La. Ann.. 427, 4 Am. St. R. 265; 1889, Gulf, etc., R. Co. v. Newell, 73 Texas 334, 15 Am. St. 788.

ARTICLE V. POWER TO ACT IN A PERSONAL RELATION.

Sec. 314. 1. Power to take as trustee.

MR. JUSTICE STORY IN VIDAL ET AL. V. GIRARD'S EXECUTORS." 1844. IN THE SUPREME COURT OF THE UNITED STATES. 2 Howard (43 U. S.) 126-201, on pp. 187, 188.

[Stephen Girard, in his will, bequeathed to the city of Philadelphia: certain real and personal estate for the erection and support of a college, upon the trusts, and for the uses designated in the will. The city, by its charter, was capable in law to have, purchase, take, receive, possess and enjoy lands, tenements and hereditaments, liberties, franchises and jurisdictions, goods, chattels and effects to them and their successors forever, or for any other or less estate, without any limitation as to value, amount or purpose. The heirs objected to the will, and claimed, among other things, that the corporation could not take as trustee.]

Part of Mr. Binney's argument, p. 148.

The old doctrine was that a corporation could not be seized to a Sugden on Uses, 10.

use.

But it has been since settled that a corporation may be a trustee. If it receives a deed, the legal estate will pass, provided the statutes of mortmain do not prohibit it. If the trust is void, equity will decree a reconveyance; but this can not be necessary, unless the legal estate had passed. And if a corporation is incapable of executing the trust, equity will appoint some person who is not. I Saunders on Uses, 346, 349; Willes on Trustees, 31; Levin on Trusts, 10, 11; 2 Thomas's Co. Litt., 706, note; 1 Cruise Dig., 403, tit. 12, Trust., ch. 1, § 89.

Also, that a corporation may be a trustee. 2 Vern., 411; 2 Bro.. P. C., 370; 7 Bro. P. C., 235.

Where a corporation abused a trust and was dismissed, see 3 Bro.. Ch. Cas., 171, 371; 4 Ves., 453; 2 Bro. Ch. Cas., 46; 1 Bro. Ch. Cas., 467; 14 Bro. Ch. Cas., 253; 12 Mass. 547; 17 Serg. & R.. (Pa.) 89; 3 Rawle (Pa.) 170.

The cases in 12 Mass, 547 and 17 Serg. & R. (Pa.) 89 may not appear at first to sustain the doctrine, but the cases are right. That of 3 Rawle (Pa.) 170 is very much like the present, and establishes the doctrine, that if the trust is for the welfare of the corporation, it may take it.

1 Only that part of the opinion relating to a corporation's power to take as trustee is given.

STORY, JUSTICE. Now, although it was in early times held that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in the person; yet that doctrine has been long since exploded as unsound, and too artificial; and it is now held, that where the corporation has a legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same manner and to the same extent as a private person may do. It is true that if the trust be repugnant to, or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it. But that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction to enforce and perfect the objects of the trust.

Note. See, 1826, Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58 (requires special charter authority to be trustee); 1842, Commissioners v. Walker, 6 Howard (Miss.) 143, 38 Am. Dec. 433; 1858, Bell County v. Alexander, 22 Texas 351, 73 Am. Dec. 268; 1889, Minnesota Loan & Trust Co. v. Beebe, 40 Minn. 7; 1897, White v. Rice, 112 Mich. 403.

Sec. 315. 2. Power to act as administrator or executor.

FIDELITY INSURANCE, TRUST, Erc., CO. v. D. G. NIVEN.1 1878. IN THE COURT OF ERRORS AND APPEALS OF DELAWARE. 5 Houston's (Delaware) Reports, 416-432, I Am. St. 150.

The ruling of the court below in the case and now assigned for error in this court was that by the laws of this state no corporation aggregate, whether incorporated by the legislature of this state or of any other state, can be appointed an administrator in this state or can sue as an administrator in the courts of this state.

WALES, J. Secondly, it is objected that by the common law the plaintiff is not capable of being an administrator. Blackstone, among the disabilities of a corporation, includes its inability to be an executor or administrator, "for it can not take an oath for the due execu tion of the office." I Bl. Com., 477. In Bacon's Ab., Tit. Executors and Administrators, 2, the same doctrine is laid down on the same ground, but under a semble, and with these additional reasons: First, because corporations can not be feoffees in trust for the use of others; and, second, because they are a body framed for a special purpose. When the reason of a rule ceases, so does the rule itself. The plaintiff is not required to take an oath. It has heen incorporated or "framed for the special purpose" of acting in the character and

1 Arguments omitted. Only part of opinion relating to capacity of corporation is given.

capacity in which it has come into court; and it is now well and long established that a corporation may be a trustee in the same manner as an individual, not only of real estate, but of personal property, to the same extent as private persons. Hill on Trustees, 48 (and cases cited in the note). Says Toller: "It now seems settled that corporations can be executors, and that on their being so named they may appoint persons styled syndics to receive administration with the will annexed, who are sworn like all other administrators. Such corporations as can take the oath of an executor are clearly competent," as, for instance, a corporation sole. Toller on Excs., 30. There is, then, no inherent disability or disqualification belonging to a corporation as such which excludes it from acting as an administrator, and it may accept the office if not 'prohibited by its charter, or forbidden by statute, whenever from the objects of its incorporation and the nature of its business it may become necessary and proper, and it is able to comply with the conditions prescribed by law as to giving bond, etc. Practically, the position of the plaintiff is meritorious and unobjectionable. With the express power contained in its charter to receive the appointment of administrator, and with its capital stock pledged as the security required for the faithful performance of its duties, it brings an action in its representative capacity for the recovl ery of a debt due to its intestate, and is met at the outset by technicarules, which, whatever may have been the reason of their origin and adoption, have either become obsolete or have been so modified and relaxed as to be no longer of general application. The execution of the bond would, at the best, amount to little more than a form, and be without substantial benefit or necessity; but still the defendant is entitled to it, if it is insisted upon, and the plaintiff has a full and lawful power to execute it as it would have to make or indorse a promissory note, or accept a bill of exchange, or to execute any other description of bond which may be fairly and legitimately considered as necessary and proper in the usual course of its business. It has not been made to appear in what manner the interests of this state or of its citizens would be impaired, or in what way its policy would be invaded or subverted, by sustaining the plaintiff's action. Admitting that a corporation may be unable to act as an original administrator under the provisions of the general statute, it does not follow that it may not be recognized as a foreign administrator on the production of letters duly authenticated and giving bond. The word "persons" may extend to and include bodies corporate and politic as well as individuals. Amend. Code, ch. 5. If the plaintiff can give the bond, it does all that the law requires. The rights of our citizens will not be endangered, their property rendered less secure, or the dignity of the state be diminished. If the policy of the state is to be inferred from the history of its legislation, the act of the general assembly of Delaware of April 9, 1873, incorporating a company for the special purpose, among others, of acting as administrator would be conclusive of that question. 14 Del. Laws, 714.

Reversed.

69-WIL. CAS.

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