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Thomas v. Dakin.

times act in fulfilment of the objects of the association as a single individual. In this way, a legal existence, a body corporate, an artificial being, is constituted; the creation of which enables any number of persons to be concerned in accomplishing a particular object, as one man. While the aggregate means and influence of all are wielded in effecting it, the operation is conducted with the simplicity and individuality of a natural person. In this consists the essence and great value of these institutions. Hence it is apparent that the only properties that can be regarded strictly as essential, are those which are indispensible to mould the different persons into this artificial being, and thereby enable it to act in the way above stated. When once constituted, this legal being created, the powers and faculties that may be conferred are various-limited or enlarged, at the discretion of the legislature, and will depend upon the nature and object of the institution, which is as competent as a natural person to receive and enjoy them. We may, in short, conclude by saying, with the most approved authorities at this day, that the essence of a corporation consists in a capacity: 1. To have perpetual succession under a special name, and in an artificial form; 2. To take and grant property, contract obligations, sue and be sued by its corporate name as an individual; and 3. To receive and enjoy in common, grants of privileges and immunities.

We will now endeavor to ascertain with exactness the powers and attributes conferred upon these associations by virtue of the statute. The first fourteen sections (1 to 14) prescribe the duties of the comptroller in furnishing notes for circulation, taking the required securities, &c. The 15th provides, that any number of persons may associate to establish offices of discount, deposite and circulation. The 16th, that they shall make and file a certificate, specifying: 1. The name to be used in the business; 2. The place where the business shall be carried on; 3. The amount of capital stock, and number of shares into which divided; 4. The names of the shareholders; 5. The duration of the association. The 18th confers upon the persons thus associating, the most ample powers for carrying on banking operations,

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Thomas v. Dakin.

together with the right to exercise such incidental powers as shall be necessary to carry on such business; also to choose a president, vice president, cashier, and such other officers and agents as may be necessary. By the 21st and 22d sections, contracts, notes, bills, &c. shall be signed by the president and cashier; and all suits, actions, &c. are to be brought in the name of, and also against the president for the time being; and not to abate by his death, resignation or removal, but to be continued in the name of the succes24th section: The association may purchase and hold real estate, &c. the conveyance to be made to the president, or such other officer as shall be designated, who may sell and convey the same free from any claim against shareholders. 19th section: The shares of capital stock to be deemed personal property, transferrable on the books of the association; and every person becoming a shareholder by such transfer, shall succeed to all the rights and liabilities of the prior holder. 23d section: No shareholder to be personally liable; and the association is not to be dissolved by the death or insanity of any shareholder.

1. Upon a perusal of these provisions, it will appear that the association acquires the power to raise and hold for common use any given amount of capital stock for banking purposes, which, when subscribed, is made personal property, and the several shares transferrable the same and with like effect as in case of corporate stock; to assume a common name under which to manage all the affairs of the association; to choose all officers and agents that may be necessary for the purpose, and remove and appoint them at pleas ure. It will hence be seen, that although the association may be composed of a number of different persons, holding an interest in the capital stock, its operations are so arranged that they do not appear in conducting its affairs; all are so bound together, so moulded into one, as to constitute but a single body, represented by a common name, or names, (the knot of the combination,) and in which all the business of the institution is conducted by common agents. In this way it purchases and holds real and personal property, contracts obligations, discounts bills, notes and other evidences

Thomas v. Dakin.

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of debt, receives deposites, buys gold and silver bullion, bills of exchange, &c., loans money, sues and is sued, &c. It is true, some portion of the business is conducted in the assumed name, and some in the name of the president for the time being; but this in no manner changes the character of the body. A corporation may have more than one name; it may have one in which to contract, grant, &c., and another in which to sue and be sued; so it may be known by two different names, and may sue and be sued in either; and the name of the president, his official name, or any other, will answer every purpose. 2 Bacon's Abr. 5. 2 Salk. 451. 2 id. 237. Ld. Raym. 153, 680. The only material circumstance is, a name, or names, of some kind, in which all the affairs of the company may be conducted. So much, and no more, is essential to give simplicity and effect to the operation. An artificial being is thus plainly created, capable of receiving all the ample powers and privileges conferred upon the associations, and of; managing their diversified concerns in an individual capacity. All business is to be conducted in a common or proper

name.

2. This artificial being possesses the powers of perpetual succession. Neither sale of shares, or death of shareholders affect it; if one should sell his interest, or die, the purchaser or representative, by operation of law, immediately takes bis place. 19. Nor can the insanity of a member work a dissolution. Id. Officers and agents for conducting the business of the association are secured. In case of vacancy, by death or otherwise, the place may at once be filled.

18. For the entire duration, therefore, of the association, and which may be without limit, § 16, sub. 5, the whole body of shareholders, though perpetually shifting, constitute the same uniform, artificial being which is to be engaged through the instrumentality of officers and agents in conducting the business of the concern, and no member is personally liable. 23. Then, as to the powers conferred, without again specially recurring to them, it will be seen at once that the associations possess all that are deemed essential, according to the most approved authorities, to constitute a corporate VOL. XXII.

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Thomas v. Dakin.

body. They have a capacity: 1. To have perpetual succession under a common name, and in an artificial form; 2. To take and grant property, contract obligations, to sue and be sued by its corporate name, in the same manner as an individual; 3. To receive grants of privileges and immunities, and to enjoy them in common. All these are expressly granted, and many more, besides the general sweeping clause, "to exercise such incidental powers as shall be necessary to carry on such business," (meaning the business of banking,) under which even the seal and right to make by-laws are clearly embraced, if essential in conducting the affairs of the institution.

II. Assuming that the associations are to be regarded as corporate bodies, was it competent for the legislature to enact the law by a majority bill? The solution of the question depends upon a construction of the ninth section of the seventh article of the constitution, which, leaving out what is not material, is as follows: "The assent of two-thirds of the members elected to each branch of the legislature, shall be requisite to every bill" "creating, continuing, altering or renewing any body politic or corporate." Before the adoption of the constitution, (1822,) corporations were formed: 1. Under general laws; and 2. Under particular statutes. The former were confined to a few specified cases, such as religious societies, colleges, academies, &c. It has been strongly urged for the plaintiff, that the above clause was intended to apply exclusively to the latter mode; and that a general law may still be passed by a majority. The proposition is undeniable, that the object of the clause was to check the undue multiplication of these bodies; this was the prevailing evil complained of, and aimed at. The particular powers and privileges that had been conferred upon those already existing, were not deemed disproportioned to the purposes for which they were created. Nor was it denied. but that they were frequently useful, if not necessary, in enabling comparatively small capitalists to combine, and thus co-operate with larger ones, in the various public enterprises of the day, for the amelioration and improvement of the condition of the country. and the developement of her capac

Thomas v. Dakin.

ity and resources. But they were sought from the legislature for objects not called for by these considerations, and in numbers disproportioned to the public wants. The latter was emphatically true in respect to banking institutions. Upon this view, it is most manifest that the construction contended for by the plaintiff, would operate as a virtual repeal. It removes at once all the force of the restraint-in an aspect of the case, too, in which, above all others, it should be brought most strongly to bear, if we are influenced by the considerations which suggested it. If the convention feared the undue multiplication of these institutions from particular statutes, much more might they from general laws, under which they might be created in unlimited numbers at will. The force of this view was felt upon the argument; and the counsel attempted to evade it by assuming that the great evil existing, and at which the clause aimed, was not so much the multiplication of corporations, as the grant of exclusive privileges which the general law avoided. Even were we to concede the premises, the conclusion would not follow. Practically, and for every business purpose, exclusive privileges are still conferred. Comparatively few citizens, in the nature and condition of things, can associate and participate in the enjoyment of the grant. The business requires capital, skill, confidence, &c. The framers of the law well knew all this, and could not have. been influenced by the expectation that all would become members of banking associations. So far as the enjoyment of exclusive privileges by the few are unjust and hurtful to the many, the evil is not removed, and practically never can be, by the general law. Its bad effects may be modified through its action upon the business of the country, by means of the competition of the several associations-nothing more. But the great error of the argument consists mainly in regarding an incident or circumstance that enhances the injurious effect of the evil, as the evil itself. The mere exclusiveness of privileges alone, against which the clause is supposed to be directed, can be of but little concern. Their injurious influence depends: 1. Upon their nature and extent; and 2. Upon the objects and pur

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