for the same will which alone can confer corporate privileges can prescribe the conditions of the grant, and it is sufficient to say that such and such are the conditions.

In view of the judgment of nonsuit the order dissolving the injunction was proper; the latter followed the former as a matter of course. Upon the return of the case to the court below the plaintiff will be entitled to a renewal of the injunction upon a proper application.

Judgment reversed and cause remanded for further proceedings.

See Pacific Bank v. DeRo, 37 Cal. 538, on 542. Also, 1893, Finnegan v. Noerenberg, 52 Minn. 239, 38 Am. St. 552, infra, p. 614.

Sec. 157. Same.

(e) Purpose of incorporation.

THE ATTORNEY GENERAL, EX REL. MINOR, v. LORMAN ET AL.' 1886. IN THE SUPREME COURT OF MICHIGAN. 59 Mich. Rep. 157-165.

CHAMPLIN, J. This is a proceeding by information in the nature of a quo warranto to determine the rights of respondents to exercise the franchises of a corporation organized under "an act to authorize the formation of corporations for mining, smelting or manufacturing iron, copper, mineral, coal, silver, or other ores or minerals, and for other manufacturing purposes," approved February 5, 1853. *

It appears by the articles of association set up in the plea of respondents that the respondents, with others, are associated and incorporated under the act aforesaid, as declared in such articles, for the purpose of putting up, packing and manufacturing for market, Detroit river and lake ice, and distributing and selling the same. The law requires the articles of association to state distinctly and definitely the purpose for which the same is formed. If it does not state a purpose for which the statute authorized a corporation to be formed, it would not be legally incorporated, and its articles would afford no warrant for the exercise of corporate action. If it does state such a purpose, and if the other requirements of the law are complied with, it is a legal corporation, and authorized to act as such. In either case the articles themselves are the sole criterion to ascertain the purpose for which it was formed, and the intent must be gathered alone from the written instrument, and can not be aided or varied or contradicted by testimony or averments aliunde the instrument itself. The question, therefore, is, is the purpose set forth in the articles such as the statute authorizes the formation of corporations to carry on? We think it is. Its expressed purpose is to manufacture for market Detroit river and lake ice. It was not necessary for the articles to state the means or methods of manufacture, nor are we to presume that the undertaking would be impossible of accomplishment.

Arguments omitted. Only part of opinion given.

The replication (of the attorney-general) sets forth the manner in which the Belle Isle Ice Company conducts its business, as follows: "Said company owns and leases various river and lake fronts upon the Detroit river and Lake St. Clair during the winter months. When the ice is formed by a natural process, without the aid of any artificial means whatsoever, and of a thickness sufficient for use, it is cut precisely as it is formed by the natural process of freezing on said lake or river, and stored in ice-houses owned by the company. The manner of cutting said ice is, and has been, as follows: Any snow which may have fallen upon the ice is scraped and shoveled off by means of scrapers drawn by horses, and by hand shovels used by men. The ice is then marked off into squares of twenty-two inches in width, a hand-marker being first used to lay out the lines, after which a marker drawn by horses is used, which cuts lines from two to four inches in depth into the ice. Ice-plows, also drawn by horses, follow in these lines, cutting the ice to a depth of from six to fourteen inches, and the remaining thickness of ice is sawed through by means of long saws operated by hand, or is broken off by breaking bars, and separated from the solid mass of ice. The ice thus cut is floated to the foot of inclined slides or elevators leading to the ice-houses where it is to be stored, and is hoisted up by tackle operated by steam or horse-power. and conducted to the ice-houses, where it is packed in layers, and covered with some non-conducting material, such as marsh hay or sawdust. As the ice is required for use, it is transported to large icebarges built for the purpose, and capable of holding 100 tons of ice, each taken to proper distributing points in the city of Detroit, where the ice is cut into smaller pieces suitable for consumption, and placed in covered wagons and delivered to customers. In the course of the business, as conducted by said Belle Isle Ice Company, a large number and variety of tools are necessary for clearing, marking, sawing, chopping and handling the ice, as heretofore fully stated, before it is in proper shape to be delivered to customers, and also ice-houses, ice-barges, wagons and other implements, and a large force of men." Worcester defines "manufacturing" as follows:

"(1) The process of making anything by art, or of reducing materials into form fit for use by hand or by machinery; as an 'establishment for the manufacture of cloth.'

"(2) Anything made or manufactured by hand, or manual dexterity, or by machinery."

The same word, as a verb, he defines:

"(1) To form by manufacture, or workmanship, by the hand or by machinery; to make by art and labor."

The process described in the replication certainly does show that the ice is reduced into form fit for use, both by hand and by the use of machinery, and the answer of the respondents shows that this is done by the outlay of the capital, at least of $50.000, and the quantity thus manufactured annually is about 30,000 tons. It is very likely that the garnering and preparation of ice fit for consumers of the article falls very near the line. True, its natural condition is not

changed. The article itself is a natural product, as described in the replication. It is ice when it is taken from the river, and it is ice when delivered to the consumers. The form alone is changed. It is reduced in size and delivered in quantities to suit the convenience of the patrons of the company. But it is not necessary, to constitute the commodity a manufactured article, that a chemical change should be wrought in the thing manufactured. Iron manufactured from iron ore remains iron. Cotton gathered from the boll, and, by means of complicated machinery manufactured, becomes the cotton of commerce. Lumber is manufactured from logs or timber simply by changing its form. And it had been held that grinding bones to produce bone dust of commerce was manufacturing, within the meaning of the revenue laws of the United States. Schriefer v. Wood, 5 Blatchf. 215. So it was held by the supreme court of the United States that timber split into staves, or into long pieces designed for shovel handles, was "manufactured," and not covered by the reciprocity treaty of 1854. United States v. Hathaway, 4 Wall. 404, 408.

Demurrer to replication sustained.

Note. What are or are not manufacturing corporations: Water companies are not. 1868, Dudley v. Jamaica P. Aqueduct, 100 Mass. 183. Mining companies are not. 1870, Byers v. Franklin Coal Co., 106 Mass. 131; 1892, Horn Silver Mining Co. v. New York, 143 U. S. 305. Gas companies are not. 1880, Williams v. Rees, 2 Fed. Rep. 882; 1886, Covington Gas L. Co. v. Covington, 84 Ky. 94; but see, contra, 1882, Nassau Gas Light Co. v. Brooklyn, 89 N. Y. 409. Electric light and power companies are not. 1891, Commonwealth v. Northern Elec. L. Co., 145 Pa. St. 105; 1891, Commonwealth v. Edison Elec. L. Co., 145 Pa. St. 131; 1898, Evanston Elec. Ill. Co. v. Kochersperger, 175 Ill. 26, 9 Am. & E. C. C. (N. S.) 224; but contra, 1892, People, ex rel., etc., v. Wemple, 129 N. Y. 543, 664; 1892, Beggs v. Edison Elec. I. Co., 96 Ala. 295.

And see, generally, as to what is manufacturing, 1885, Engle y. Sohn, 41 Ohio St. 691, 52 Am. Rep. 103 and note.

The purposes for which a corporation is formed are to be determined by an inspection of its articles of association. 1896, Detroit Driving Club v. Fitzgerald, 109 Mich. 670, 4 Am. & E. C. C. (N. S.) 546, 67 N. W. 899; 1898, Evanston E. I. Co. v. Kochersperger, 175 Ill. 26, and extrinsic evidence as to the unlawful intentions of the promoters will not be received to defeat an action by such corporation against a subscriber upon the stock subscription contract. 1894, United States Vinegar Co. v. Schlegel, 143 N. Y. 537; 1895, United States Vinegar Co. v. Foehrenbach, 148 N. Y. 58, 3 Am. & E. C. C. (N. S.) 164.

Two or more purposes, when allowed; 1902, Ramsey v. Tod, 95 Tex. 614, 93 Am. St. R. 875.

Sec. 158. Same.

(f) Subscribing and acknowledging articles or charter.

KAISER v. LAWRENCE SAVINGS BANK ET AL.1

1881. IN THE SUPREME COURT OF IOWA. 56 Iowa Rep. 104–111. The plaintiff, in April, 1877, became a creditor of the Lawrence Savings Bank by reason of a deposit of money made by him in the bank, which bank was located and doing business in the city of Lawrence, Kan. As such creditor he seeks to recover of the defendant, Only so much of the case as relates to the one point is given.

Hoag, upon the ground that the Lawrence Savings Bank was a partnership or unincorporated company, and that Hoag was a member of it. Hoag does not deny his ownership, but denies that the Lawrence Savings Bank was an unincorporated company or partnership, and avers that the same was duly incorporated under the laws of Kansas, by reason whereof he was exempt from personal liability for the debts of the bank. There was a trial without a jury, and judgment for the plaintiff. The defendant Hoag appeals.

ADAMS, C. J. The evidence tends to show that certain individuals attempted in good faith to become incorporated under the laws of Kansas for the purpose of doing business as a savings bank, and subscribed for shares in the supposed corporation. For several years they did business as a savings bank, under the supposition that they were duly incorporated. Prior to the time that plaintiff became a creditor of the bank, the defendant Hoag purchased an interest in the bank, and remained the owner of such interest from that time forward.

The general incorporation law of Kansas constitutes chapter 23 of the statutes of Kansas. Section 8 provides that "the charter of an intended corporation must be subscribed by five or more persons, three of whom, at least, must be citizens of this state, and must be acknowledged by them before an officer duly authorized to take acknowledgment of deeds." Section 9 provides that "such charter shall thereupon be filed in the office of the secretary of state."

A certificate of the secretary of state of the state of Kansas was introduced in evidence, showing what papers, and what only, had been filed in his office pertaining to the incorporation of the Lawrence Savings Bank. The certificate shows that there were filed in his office what are denominated articles of association. The statute requires that a charter shall be filed. We are inclined to think, however, that the fact that the paper filed is denominated articles of association, instead of a charter, is not sufficient to invalidate it. We proceed, then, to inquire whether the paper complies with the statute in other respects, and we conclude that it does not. The statute requires that it shall be subscribed and acknowledged by five or more persons. The paper purporting to be articles of association is so informally drawn and executed that we can not say it is subscribed by any one. The paper consists of eight articles. The first six articles purport to be subscribed by twenty-three persons, but the seventh and eighth articles are not subscribed, and the seventh article is, under the statute, material. But if the articles had all been subscribed they would be fatally defective for want of acknowledgment by the subscribers, or a sufficient number thereof to comply with the statute.

The defendant insists, however, that in order to establish the corporate existence of the Lawrence Savings Bank as against plaintiff it is sufficient to show authority to create the corporation, a bona fide attempt on the part of the corporators to become incorporated, and the doing of business as a corporation. In support of this proposition the defendant cites the Buffalo and Allegany R. Co. v. Carey,

26 N. Y. 77. In that case the court said, "that if the papers filed are colorable, but so defective that, in a proceeding on the part of the state against it, it would for that reason be dissolved, yet by the acts of user under such organization it becomes a corporation de facto, and no advantage can be taken of such defect in its constitution collaterally by any person." Substantially the same doctrine was enunciated in Kurtz v. The Paola Town Co., 20 Kan. 403, and Pope v. The Capital Bank, 20 Kan. 440. It should be observed, however, that in those cases the defendant set up a want of incorporation of the plaintiff and sought to escape liability upon that ground. In the case at bar the defendant sets up exemption, averring that the attempt to become incorporated and the doing of business under a claim of incorporation were sufficient to create the exemption.

It will be seen at once that the principle involved in those cases is essentially different from that in the case at bar.

It is hardly necessary to say that where incorporation has once taken place no act of forfeiture can be set up in a collateral action, until forfeiture has been judicially declared in an action brought for that purpose. See Angell & Ames on Corporations, § 636, and cases cited. But the principle involved in those cases is essentially different from that in the case at bar.

In Humphrey v. Mooney, 1 Colo. 193, a creditor of an assumed corporation sought to hold a member as a partner. It was held that as his right of action was based upon an express contract with the assumed corporation he was estopped to deny that it was in fact a corporation. The doctrine of that case is substantially that relied upon by the defendant. But it seems to us that it is not sustained by the weight of authority. The court cited in support of the decision Eaton v. Aspinwall, 19 N. Y. 121, and Buffalo v. Carey, 26 N. Y. 77, but neither of these cases, it appears to us, is in point.

Affirmed.

Sec. 159. Same.

(g) Acknowledging articles.

THE PEOPLE, APPELLANT, V. THE MONTECITO WATER CO., ET AL.,

RESPONDENT.1

1893. IN THE SUPREME COURT OF CALIFORNIA. 97 Cal. Rep. 276-281.

Appeal from a judgment of the superior court of Los Angeles county.

The facts are stated in the opinion.

TEMPLE, C. Plaintiff appeals from a judgment entered upon demurrer to complaint.

The demurrer was general, and on the ground of insufficiency of the facts. It is a proceeding taken by the attorney-general of the state 1 Only so much of the case as relates to the one point given.

39-WIL. CASES.