1. He insists in the first place that this institution is amenable to state sovereignty, because it is located and its officers discharge their duties and perform their functions within this state. This claim is groundless.

It is indeed true, in the language of the supreme court of the United States (2 Howard 555), that a "corporation created by a state to perform its functions under the authority of that state, and only suable there, though it may have members out of the state, is a person, though an artificial one, inhabiting and belonging to that state, and, therefore, entitled-for the purpose of suing and being sued-to be deemed a citizen of the state." But this is not such a corporation. It was not created by us; it does not perform its functions under our authority, and it is the creature of and controllable by another and superior sovereignty. That other sovereignty is exercised over the whole country irrespective of state lines or state authority. It places its officers, agents and instruments wherever its necessities or its interests require, and necessarily within the limits of the states. With those officers, and agents, and instruments, in the exercise of their functions, state authority can in no way interfere. The national banks are its instruments, by which it performs its functions in establishing a national currency; on that fact their constitutionality is placed, and in the exercise of the powers conferred upon them they are as independent of state control as the army, or navy, or the officers of the subtreasury and custom-house, or any other instrumentality by which the functions of the federal government are performed. No other view is compatible with the principles of our own jurisprudence, or those recognized and declared by the supreme court of the United States in numerous cases, and particularly in the exhaustive opinion of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316.

2. The relator insists, in the second place, that the superior court has jurisdiction of the defense set forth in the information, because the judicial power of the federal and state governments is exercised concurrently by the courts of either, unless congress has conferred exclusive jurisdiction, in respect to the subject-matter, on the federal courts, and no such exclusive jurisdiction has been conferred in relation to this. This claim is equally unfounded.

It is undoubtedly true that the state courts retain jurisdiction over some matters, to which, by the constitution and laws of the United States, jurisdiction is given to the federal government and courts, and in respect to which jurisdiction appertained to and was exercised by the state courts prior to the adoption of that constitution. On that subject the rule seems to be, that the state courts retain the jurisdiction which they had before that event except where it was taken away by an exclusive constitutional grant of jurisdiction to the federal government, or congress have made the jurisdiction exclusive in the federal courts, or the exercise of the jurisdiction is repugnant to, and incompatible with such exercise by those courts.

But the cases where such concurrent jurisdiction can be entertained

by the courts of the states are few. Most of those where such jurisdiction has been sustained by the supreme court of the United States, and all to which we have been particularly referred, were cases of a criminal character where the act was an offense against both sovereignties, and punished by the law of the state. Here there could be no jurisdiction anterior to the adoption of the constitution. Nor has there been any invasion of the sovereignty of this state or violation of its laws, or any offense which the state is called upon to redress in its own behalf. It is a clear principle that where there has been no offense there can be no judicial jurisdiction; and equally clear that a state has no authority to enforce a national law in behalf of the national government.

And this is one of that class of cases where jurisdiction in the state court is utterly incompatible with the necessary jurisdiction of the national government. The corporation in question being the creature and instrument of that government must necessarily be subject to that alone. By the common law, and by our statute, an information of this character lies as well to deprive a corporation of its charter as to determine the rights of its competing officers; and if the relator is right in this claim, its charter can be taken away and its franchises seized by the courts of the state. Nothing could be more repugnant in character than such an unauthorized interference, for such a purpose, or for any purpose.

3. The plaintiff claims in the third place, that concurrent jurisdiction of the subject-matter is conferred upon the state courts by the amended currency act of 1864, section 57, which provides, "that suits, action and proceedings against any association, under this act, may be had in any circuit, district, or territorial court of the United States, held within the district in which such association may be established; or in any state, county or munícipal court in the county or city in which said association is located, having jurisdiction in similar cases. Provided, however, that all proceedings to enjoin the comptroller under this act shall be had in a circuit, district or territorial court of the United States held in the district in which association is located." To this claim also we find it impossible to assent.

The information in the nature of a quo warranto, although grantable to determine a private right to an office in a corporation, between party and party, as well as to determine the right of the corporation to the franchise assumed, and a civil proceeding must be filed and issued in the name of the sovereignty which created the corporation, and is still so far forth a prerogative writ. Congress, in the exercise of its authority to apportion the judicial power among the inferior federal courts, has been very cautious in conferring the power to grant prerogative writs. That power is nowhere conferred, in express terms, upon the circuit or any other federal court located in the states. They did attempt to confer the power to grant a mandamus upon the supreme court, as a matter of original jurisdiction, but that court, in Marbury v. Madison, held the act unconstitutional, on the ground

that it was not competent for congress to increase the original jurisdiction of the supreme court. By the eleventh section of the judiciary act of 1789 jurisdiction was given to the circuit courts of all suits of a civil nature at common law and in equity to the amount of $500 or more between certain parties. This writ, though in its nature grantable at the discretion of the court, is one of right, and constitutes a suit within the meaning of that term as used in the act, but it is not of the character, or between the parties contemplated by it.

The 14th section also authorizes the circuit and other federal courts "to issue writs of habeas corpus and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." But the supreme court, in McIntire v. Wood (7 Cranch 504), and M'Lung v. Silliman (6 Wheaton 598), and Kendall v. The United States (12 Peters 524), held that the circuit courts, within the states, had not power under those sections to grant a mandamus, which is one of those writs, unless necessary for the exercise of their jurisdiction within the limits prescribed, although the power was sustained in the latter case, as having been given to the circuit court of the District of Columbia. The granting of those writs undoubtedly appertains to the judicial power of the government, but that part of the power seems not to have been conferred by congress upon any of the courts but that of the District of Columbia, in prescribing their jurisdiction, except as incident to and necessary for the exercise of the other special powers with which they are clothed. The circuit court of the United States for this district has not the power, therefore, to issue a quo warranto in a case like this, by virtue of any general jurisdiction. And is it to be assumed that congress, having been thus cautious of entrusting the federal courts with that power, intended nevertheless to confer it by the language quoted, and not only on the federal, but upon the state courts; to delegate to the state courts a part of their sovereignty; to submit a corporation-a creature of their creation, and an instrument by which they perform one of their functions-to the absolute and unrestrained supervision and control of the courts of another sovereignty, especially when by the act which created it they reserved to their own officers unusual supervisory power and control? I think not. And if the case turned upon that question alone, I should be strongly inclined to the opinion that congress intended by the clause quoted to provide a more convenient forum for determining the ordinary questions which must naturally arise between the corporations and others in the course of their business, and intended no more.

But there is another and conclusive objection to this claim of the plaintiff. The section in question authorizes suits against the corporation only. This is not a suit against the corporation, but a proceeding by one individual against another individual competing for the office of director of it, and it is not within the letter or spirit of the act.

For these reasons we advise that the information is insufficient and the demurrer should be sustained.

In this opinion the other judges concurred.

1809, Commonwealth v. Union Ins. Co., 5 Mass. 230, 4 Am. Dec. 50; 1824, Commonwealth v. Murray, 11 Serg. & R. (Pa.) 73, 14 Am. Dec. 614; 1836, People v. Rensselaer, etc., R. Co., 15 Wend. 113, 30 Am. Dec. 33, note 44; 1841, State v. Harris, 3 Ark. 570, 36 Am. Dec. 460; 1841, State v. Evans, 3 Ark. 585, 36 Am. Dec. 468; 1864, People v. River Raisin, etc., R. Co., 12 Mich. 389, 86 Am. Dec. 64; 1867, Commonwealth v. Cluley, 56 Pa. St. 270, 94 Am. Dec. 75; 1888, Moore v. Brooklyn, etc., R., 108 N. Y. 98; 1892, Pickett v. Abney, 84 Texas 645; 1893, Republican Mountain Silver Mines v, Brown, 58 Fed. Rep. 644, 24 L. R. A. 776; 1897, Madden v. Penn. Elec. L. Co., 181 Pa. St. 617, 38 L. R. A. 638; 1898, Coquard v. National L. O. Co., 171 Ill. 480, 49 N. E. Rep. 563; 1899, Clark v. Mutual Res. F. L. Ass'n, 14 App. Cas. (D. C.) 154, 43 L. R. A. 390.

Sec. 49. (6) None but the sovereign can create.

THE MEDICAL INSTITUTION OF GENEVA COLLÈGE v. PATTER

SON.1

1845. IN THE SUPREME COURT OF NEW YORK. I Denio (N. Y.) 61-69.

[Suit by the medical institution upon a note given by defendant payable to the Medical Institution of Geneva College. Special verdict raising the question as to the plaintiff's corporate existence. ]

By the Court: BRONSON, Č. J. If "The Medical Institution of Geneva College" is not a corporation it has no capacity to sue, and the defendant is entitled to judgment. This is the only question made by the special verdict. The principal argument for the plaintiffs depends upon maintaining the following propositions: 1. Each of the English Universities of Oxford and Cambridge has the power of creating subordinate corporations, such as colleges for giving instruction in the liberal arts and sciences. 2. Columbia College, in the city of New York, has the same power in this respect as the English universities. 3. Geneva College has the same powers as Columbia College, and, 4. Geneva College, thus having the power, has created a corporation by the name of "The Medical Institution of Geneva College." If any one link in this chain is broken, the whole argument falls to the ground.

[By the charter Geneva College was given all the corporate rights and privileges of Columbia College, the governors of which were empowered by their charter from the king to appoint a president, professors and other officers, who could exercise their office, as freely and fully as any of the like officers in the English universities; the governors also had the power to make laws and ordinances for the government of the college and students, and to grant degrees the same as English universities.]

1 Statement of facts abridged. Arguments and part of opinion omitted.

These are all the provisions of the charter to which we have been referred in support of the plaintiff's case; and, whatever may be the powers of the English universities, I think it entirely clear that Columbia College has no power to create corporations of any kind, or for any purpose. It can not be necessary to discuss the question. It is enough to say that there is nothing in the charter which looks like a license or authority to erect corporations. The chancellor of the university of Oxford has power by charter to erect corporations. (1 Kyd on Corp. 50; 1 Black. Comm. 474.) But Columbia College has no chancellor. Its principal officer is a president, who has no greater powers than are usually conferred on the presidents of other colleges. They can not make corporations.

Although it is now settled that the king may delegate his authority to create corporations; or, in other words, may exercise the power by another as his instrument, on the principle qui facit per alium, facit per se, I find no authority for the position that a general power to erect corporations has ever been delegated to either of the English universities. But, however that may be, I think there is no color for saying that such a power has been conferred upon any of our colleges.

Judgment for defendant.

Note. 1830, People v. Trustees of Geneva College, 5 Wend. (N. Y.) 211; 1894, State v. International Ins. Co., 88 Wis. 512, 43 Am. St. Rep. 920; 1697, Robinson v. Groscot, Comberbach 372; 1704, Cuddon v. Eastwick, 1 Salk. 192; 1829, McKim v. Odom, 3 Bland Ch. (Md.) 407, supra, p. 222; 1852, Pennsyl vania R. v. Comm'rs, 21 Pa. St. 9; 1853, Franklin Bridge Co. v. Wood, 14 Ga. 80, infra, p. 279; 1859, State v. Bradford, 32 Vt. 50; 1870, Hoadley v. Essex Co., 105 Mass. 519; 1874, Stowe v. Flagg, 72 Ill. 397. Álso cases infra, on conditions precedent to corporate existence, de jure, de facto and by estoppel.

ARTICLE II. METHODS OF EXERCISE EVIDENCE OF SOVEREIGN'S CON

Sec. 50. (a) In general.

SENT.

THE CASE OF SUTTON'S HOSPITAL.

1613. 10 Coke, 23a, 30a, 30b, 31a.

(Extracts from the Report.)

* And it is to be known, that every corporation or incorporation, or body politic or incorporate, which are all one, either stands upon one sole person, as the king, bishop, parson, etc., or aggregate of many, as mayor, commonalty, dean and chapter, etc., and these are in the civil law called universitas sive collegium. Now it is to be seen what things are of the essence of a corporation. 1. Lawful authority of incorporation; and that may be by four means, sc. by the common law, as the king himself, etc.; by authority of parliament; by the king's charter (as in this case); and by prescription. The 2d, which is of the essence of the incorporation, are persons to