540; 1821, Cohen's v. Virginia, 6 Wheat (U. S.) 264, 442; 1822, In re St. Mary's Church, 7 S. & R. (Pa.) 517; 1843, Case of Borough of West Philadelphia, 5 Watts & S. 281; 1856, State v. Armstrong, 3 Sneed (Tenn.) 634; 1858, Mayor v. Shelton, 1 Head (Tenn.) 24; 1885, Factors' & Traders' Ins. Co. v. N. H. P. Co., 37 La. Ann. 233; 1889, Heiskell v. Chickasaw Lodge No. 8, 87 Tenn. 668. What violates and what does not violate this doctrine are well illustrated by the two cases of State v. Armstrong, 3 Sneed (Tenn.) 634, and Mayor v. Shelton, 1 Head (Tenn.) 24, to the effect that "when the extent, character of powers and objects of incorporation are fixed by the legislature," and not left to the persons themselves seeking incorporation, or the body to whom certain ministerial acts are delegated, there is no delegation of legislative powers.

(b) Apparent exceptions: (1) The power of the regents of the University of New York, as above indicated, however, is discretionary to a great extent, and Mr. Morawetz (§ 15, note 5) considers this a valid delegation of power. Thomas v. Dakin, 22 Wend. 110. The power to create churches under the Pennsylvania act of 1791 (3 Pa. Laws 40) was largely discretionary, to be exercised by those seeking incorporation, and the courts and attorney-general. (Case of St. Mary's Church, 7 S. & R. (Pa.) 517.)

By the present New Jersey law "The certificate of incorporation may also contain any provision which the incorporation may choose to insert

creating holders

the powers of the corporation, the directors and the stocknot inconsistent with this act." N. J. L. 1896, Am. 1898, § 8. See Ellerman v. Chicago Junct. Ry. Co., 49 N. J. Eq. 217, holding that the certificate of incorporation is equivalent to special act of the legislature. Similar provisions exist in the Delaware, Connecticut and North Carolina laws. Such provisions, it would seem, can hardly be supported under the early holdings. They do not seem to have been passed upon.

(2) Ministerial functions, such as certifying compliance with laws, recording articles, etc., can be delegated-the creative power in such cases is that of the legislature. 1853, Franklin Bridge Co. v. Wood, 14 Ga. 80, supra, p. 279; 1877, In re New York Elevated R. Co., 70 N. Y. 327; 1883, Heck v. McEwen, 12 Lea (Tenn.) 97; 1888, Granby Min. & S. Co. v. Richards, 95 Mo. 106. There seems to be no inherent incapacity in the nature of legislative power that prevents its delegation, and there has always been a well recognized exception in the case of municipal ordinances, and the tendency is to extend the sphere of delegating legislative functions. Am. & Eng. Ency., vol. 6, p. 1022 (2d ed.); Cooley's Const'l Lim., p. *120, n. 1; Oberholtzer, The Referendum in America, 17.

(3) Congress and the territorial legislatures: It seems never to have been questioned that congress could not delegate a general power to create corporations to the territorial legislatures, on the ground that such was a delegation of delegated powers. Perhaps aside from the constitutional power to legislate for the territories, it might be held that congress does not exercise delegated powers in its purely national or international relations, outside of the states of the Union, but that it is sovereign in those particulars, much as the parliament of England, so far as ways and means are concerned.

See, 1821, Douglas v. State Bank, 1 Mo. 24; 1831, Williams v. Bank of Michigan, 7 Wend. (N. Y.) 539; 1844, People v. Marshall, 1 Gilm. (6 Ill.) 672; 1851, Myers v. Manhattan Bank, 20 Ohio 283; 1852, Vincennes v. University of Indiana, 14 How. (U. S.) 268; 1864, Allen v. Pegram, 16 Iowa 163; 1888, Carver Mercantile Co. v. Hulme, 7 Mont. 566; 1894, Bashford-Burm. Co. v. Agua Fria C. Co., 35 Pac. (Ariz.) 983.

Territorial corporations become state corporations upon admission of the territory to the Union, as a state. 1820, Vance et al. v. Farmers' and M. Bank, 1 Blackf. (Ind.) 80; 1823, Bank of Vincennes v. State, 1 Blackf. (Ind.) 267; 1884, Kansas Pac. R. Co. v. A., T. & S. F. R. Co., 112 U. S. 414. But see, 1851, Myers v. Manhattan Bank, 20 Ohio 283.

They are subject to the power of congress to control or abolish. 1887, United States v. Church of Jesus Christ, 5 Utah 361; 1889, Mormon Church v. United States, 136 U. S. 1, infra, p. 906.

See below: Limits on power of territorial legislatures, p. 332.

20-WIL. CASES.

ARTICLE II. LIMITS ON LEGISLATIVE AUTHORITY, FROM THE NATURE OF A FRANCHISE.

Sec. 63. (a) Can not be forced on any one.

ELLIS v. MARSHALL.'

1807. IN THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. Mass. Reports, 269-279; 3 Am. Dec. 49.

[Ejectment by plaintiff, claimed under a sale, by the Front Street Corporation, of the defendant's land to pay an assessment for constructing a street. The corporation was composed of sundry personsdescribed as being "owners and proprietors of the land over which the street will pass," the defendant being one of such proprietors, and named in the act of incorporation, which had been passed upon petition by a majority of said proprietors. Marshall had not been one of such petitioners, and, although a public notice of a time for a hearing by all persons interested was given by the general court, Marshall did not appear. The proprietors were duly incorporated and authorized to make the improvement, levy the cost upon the adjoining lands, and upon failure to pay the assessment made, seize and sell the land.]

PARKER, J. From the foregoing facts and the arguments thereon by the counsel, it appears that all the proceedings of the corporation relative to the assessment and sale were correct, so that if Marshall were, at the time thereof, a member of the corporation, the title to the demanded premises in Ellis could not be disputed.

We are, therefore, necessarily brought to the question, indeed, the only one in the case, whether Marshall, by virtue of the act aforesaid, became a member of the said corporation, subject to its rules and regulations, and liable to be assessed for the purpose of building said

street.

The counsel for the plaintiff have contended.

1. That by the virtue of the act itself, Marshall being named therein, he became, ipso facto, a member of the corporation, the legislature having competent power to compel him thereto.

2. That should this not be the case, the foregoing facts contain sufficient evidence of his consent, tacit at least, to the passing of said act, and the insertion of his name therein.

The determination of the first point requires that we should ascertain the true nature and character of this legislative proceeding. If it were a public act, predicated upon a view to the general good, the question would be more difficult. If it be a private act, obtained at the solicitation of individuals, for their private emolument or for the 1Statement of facts abridged. Arguments omitted. Part of opinion

omitted.

improvement of their estates, it must be construed, as to its effect and operation, like a grant. We are all of opinion that this was a grant or charter to the individuals who prayed for it, and those who should associate with them; and all incorporations to make turnpikes, canals and bridges must be so considered.

Can then one, whose name is by mistake or misrepresentation inserted in such an act, refuse the privileges it confers and avoid the burdens it imposes? If he can not, then the legislature may, at all times, press into the service of such corporations those whose lands may be wanted for such objects whenever they may be prevailed on to insert the names of such persons by the intrigue or mistake of those more interested in the success of the object. No apprehension exists in the community that the legislature has such power. That the land of any person, over or through which a turnpike or canal may pass, may be taken for that purpose if the legislature deem it proper, is not doubted. The constitution gives power to do this, provided compensation is made. But it was never before known that they have power over the person, to make him a member of a corporation, and subject him. to taxation, nolens volens, for the promotion of a private enterprise. That a man may refuse a grant, whether from the government or an individual, seems to be a principle too clear to require the support of authorities. That he may decline to improve his land no one will doubt. Although the legislature may wisely determine that a certain use of his property will be highly beneficial to him, he has a right to judge for himself on points of this nature. The fact, therefore, in the case, that Marshall is benefited equally with the other owners by the making of this street, is of no importance. In Bagg's Case, Rolle's Reports, 224, it seems to be agreed by the court that a patent procured by some persons of a corporation shall not bind the rest, unless they assent. And in Brownlow's Reports, 100, there is this passage: "It was said that inhabitants of a town can not be incorporated with"out the consent of the major part of them, and an incorporation "without their consent is void.”

In Comberbach 316, Holt, speaking of a new charter made to the city of Norwich by Henry IV and confirmed by Charles II, says the new charter had been void, if the corporation had refused it, but when they accept it, and put it in execution, it is good.

If these principles were correct in England in times when prerogative ran high, and the crown or the parliament could not force charters or patents upon the subject without his assent, surely in this free country, where the legislature derives its power from the people, such authority can not be contended for.

It being then the opinion of the court that this act is of a nature to require the assent of Marshall, either express or implied, before it can operate upon him. it is necessary to inquire into the second point, viz., whether the facts agreed upon in this case furnish evidence of such

assent.

It is contended that the act itself, as it contains Marshall's name,

furnishes such evidence, since it must be presumed that the legislature were satisfied on this point before they passed the act.

This argument would have great weight, if its force were not impaired by the facts stated in the case. It appearing that Marshall did not sign the petition; that he did not, in word or writing, assent to it, or to the act founded upon it; that he did not attend before the committee, and that in the only transaction, in which he noticed the corporation, he protested against its authority over him, the presumption arising from his name being in the act is weakened, if not destroyed.

It is then said that, public notice having been given of the hearing intended by the committee, his silence is evidence of his tacit assent to the passage of the act. As we are bound to presume everything in favor of the doings of the legislature, we should think this a strong, if not a conclusive argument, if the notice given had been such as necessarily to signify to Marshall that he was to be included in the act prayed for. But on perusing the petition, which probably was published in the papers, we find nothing in it from which we could infer that his property or rights were to be affected in the manner contemplated by this act. He may be considered as notified that a street was intended to be built over his ground: and all that he could infer from this was that so much of his land as the street would pass over would be taken for this purpose, and that he would receive indemnity for it in the usual way, and that any opposition to it would be unavailing. He certainly could never have understood that it was intended to make him a member of the corporation without his consent. There is therefore no evidence, even of a tacit consent, before the passing of the act, and his conduct, after it passed, amounts to a direct disavowal of all the doings of the corporation, as they respected him or his property.

Upon the whole, therefore, we are of opinion that the act, under which the plaintiff sets up his title, could not bind Marshall without his assent: that he, having uniformly, whenever opportunity occurred, signified his dissent, is not a member of the corporation it created, was not liable to their assessments, and therefore the sale of his land was without authority of law and is void.

Plaintiff non-suit.

Note. 1. While the granting of a charter is the enactment of a law, it is a law of a peculiar character; it is one made to take effect upon any one only after its acceptance by those to whom, or for whose use, it is granted. It does not become binding upon them or any one till accepted, but when accepted by the grantees it then becomes the law of the corporate existence, binding upon, not only those who accept, but also upon all others who may have any dealings with or be affected by the existence of the corporation thereby created. It then becomes a law of the state, the same as any other law, and the maxim that "ignorance of the law excuses no one," applies in this case as in all others, not only to the corporators and members, but others as well. Not only this, but after its acceptance it becomes an executed grant upon a condition subsequent-i. e., that it will be used properly under penalty of forfeiture for abuse-but otherwise not the subject of revocation or amendment without consent of the grantees, unless the power to do so is reserved at the time of

the grant. See infra, cases on the subject, acceptance of the charter, contracts contained in the charter, pp. 409, 707.

See 1765, Rex v. Chancellor of Cambridge, 3 Burr. 1661; 1787, Rex v. Amery, 1 T. R. 575; 1789, King v. Passmore, 3 T. R. 240; 1819, Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, infra, p. 708; 1820, Lincoln, etc., Bank v. Richardson, 1 Greenleaf (Me.) 79; 1825, Rex v. Westwood, 4 B. & C. 781; 1833, Fire Department v. Kip, 10 Wend. 266; 1840, Falconer v. Campbell, 2 McLean (U. S. C. C.) 196, supra, p. 287; 1840, Coffin v. Collins, 17 Me. 440; 1842, Bailey v. Mayor of N. Y., 3 Hill (N. Y.) 531; 1847, Haslett v. Wotherspoon, 1 Strob. Eq. (S. C.) 209; 1854, New Orleans J. & G. N. R. v. Harris, 27 Miss. 517; 1861, State v. Dawson, 16 Ind. 40, infra, p. 412; 1883, McKay v. Beard, 20 S. C. 156; 1885, Smith v. Silver Valley M. Co., 64 Md. 85; 1889, Re Metropolitan Transit Co., 111 N. Y. 588; 1891, Demarest v. Flack, 128 N. Y. 205; 1892, Welsh v. Plumas Co., 94 Cal. 368; 1896, Quinlan v. Houston, etc., Ry., 89 Tex. 356.

So.

Sec. 64. (b) May be exclusive, but not so unless expressly made But even when made exclusive may be appropriated to a public use under the power of eminent domain, upon compensation being made.

THE PROPRIETORS OF THE PISCATAQUA BRIDGE v. THE NEW HAMPSHIRE BRIDGE ET AL.1

1834. IN THE Superior CourT OF THE JUDICAture of New HAMPSHIRE. 7 N. H. Rep. 35-72.

[Bill in chancery to restrain defendants from erecting a bridge across the Piscataqua river at any place between Nanny's Island and Walton's Point. In 1793 plaintiffs were incorporated to build a bridge between Bloody Point and Furbur's Ferry (as stated in the title), the preamble stating that a bridge at the place above named would be of public utility. The third section of the act authorized the bridge to be built anywhere between Bloody Point and Furbur's Ferry, inclusively, while the sixth section provided that the "exclusive right of building and maintaining a bridge across said Piscataqua river, anywhere between Walton's Point, so called, being easterly of Knight's or Bloody Point Ferry and Nanny's Island, so called, laying at the bottom of Great Bay, above Furbur's Ferry, be and the same is fully granted to said petitioners, and such as are or may be associated with them, and become proprietors, their heirs and assigns." In 1833, the defendants were incorporated with authority to build and maintain a bridge across the same river between Newington and Durham. Plaintiff's bridge was erected in 1794 between these towns. It was conceded that the place where the defendants proposed to erect this bridge was within the limits stated in the sixth section of plaintiff's charter, but not within the limits set forth in the title, preamble and third section.]

1Statement of facts abridged. Arguments omitted. Part of opinion omitted.