But if express words of incorporation be not employed in the statute and corporate existence is not essential to the exercise or enjoyment of the powers or franchises conferred, it will not be presumed that the legislature intended to create a corporation. Thus a grant of a privilege to raise money by lottery is not an act of incorporation and confers no chartered rights.2 § 8. Constitutional limitations of the power of the legis lature. In many of the States there are constitutional prohibitions against the creation of corporations by special legislation, and by a federal statute the territorial legislatures are a corporation. The effect of this provision might perhaps be to alter the meaning of the word 'incorporated' in the English law, but it did not change the real nature of the company. It certainly did not impose a rule for the construction of statutes passed by a foreign State." Morawetz on Corporations, § 18, citing Liverpool, &c. Ins. Co. v. Massachusetts, 10 Wall. 566; s. c. 100 Mass. 531. See also People v. Assessors of Watertown, 1 Hill, 620; Thomas v. Dakin, 22 Wend. 9, 69; Warner v. Beers, 23 Wend. 103. So also the general statute of Ohio regulating the formation of corporations does not authorize the formation of insurance companies. That is provided for by special statutes. State v. Pioneer Live Stock Co., 38 Ohio St. 347. 1 Walsh v. New York and Brooklyn Bridge, (1884) 96 N. Y. 427, where it was held that as the purpose of the New York Act of 1875, ch. 300, in relation to the New York and Brooklyn Bridge, was to extinguish a corporation then existing and to vest all its property in the two cities, and that as all the purposes of the Act could not be carried out without the creation of a corporation, the board of trustees, for whose appointment the Act provided, were not to be deemed a corporation, but merely agents for and representatives of the two cities. Cf. Gregory v. Shelby College, 2 Met. (Ky.) 589; Lawrence v. Fletcher, 8 Met. 153; Medical Institution v. Patterson, 5 Denio, 618; Jackson v. Marietta Bank, 9 Leigh, 240; Myers v. Irvin, 2 S. & R. 368; Medical College Case, 3 Whart. 445; Phillips v. Pearce, 5 B. & C. 432; Angell & Ames on Corporations (11th ed.), § 79. 2 Gregory v. Shelby College, 2 Met. (Ky.) 589; Angell & Ames on Corporations (11th ed.), § 76. 3 Mr. Stimson (Stimson's Am. Stat. Law, § 441) cites the constitutions of Maine, New York, New Jersey, Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Kansas, Nebraska, Maryland, West Virginia, North Carolina, Tennessee, Missouri, Arkansas, Texas, California, Oregon, Nevada, Colorado, Alabama and Louisiana. But in a State where such a prohibition exists it has been held that an association for the purpose of establishing colonies of persons of a particular religious belief is not necessarily a religious corporation, and is not prohibited by the constitution. St. Louis Colonization Assoc. v. Hennessey, 11 Mo. App. 555. prohibited from granting private charters. Exceptions, however, are made in favor of municipal,2 educational,3 charitable,* and banking corporations; and sometimes the exception extends to all cases not provided for by a general act. In Alabama the exceptions are numerous, including municipal, educational, industrial, manufacturing, mining, and canal corporations; also corporations for encouraging immigration, for improving navigable rivers and harbors, and other cases where there is no special act. In other States the constitutions direct that the legislature shall provide by general law only for the creation of municipal, educational, mechanical, industrial," mining," agricultural, religious, charitable, literary," manufacturing, canning, building and loan, draining," or railroad and wagon road corporations," or "other useful companies." 18 In South Carolina the constitution directs that the 15 13 1 U. S. Rev. Stat. § 1889. But it has been held that the Montana law of 1872, providing for the formation of corporations for carrying on any branch of business "designed to aid in the industrial or productive interests of the country, and the development thereof," is not in conflict with Rev. St. U. S. § 1889, which provides that territorial legislatures shall not grant private charters, but may permit persons "to associate themselves together as bodies corporate for mining, manufacturing, or other industrial pursuits;" and a mercantile corporation may be incorporated under such law. Carver Mercantile Co. v. Hulme, 7 Mont. 566, (1888). 2 In New York, Maine, Michigan, Wisconsin, Minnesota, Maryland, North Carolina, Texas, Oregon, Nevada, Colorado, Alabama and Louisiana. Stimson's Am. Stat. Law, § 441. 3 In Alabama, and, where they are under the control of the State, in Illinois, Nebraska, Arkansas, and Colorado. Stimson's Am. Stat. Law, § 441. 10 Stimson's State, in Illinois, Nebraska, Missouri, 5 In Maryland and Indiana, and also Michigan if the act receive the vote of two-thirds of each full house of the legislature. Stimson's Am. Stat. Law, § 441. 6 In New York, Maine, Wisconsin, Maryland, North Carolina, and Alabama. Stimson's Am. Stat. Law, § 441. 7 Stimson's Am. Stat. Law, § 441. 8 In California and Florida. Stimson's Am. Stat. Law, § 441. 9 In Florida and the Territories. Stimson's Am. Stat. Law, § 441. 10 In Florida. 11 In the Territories. U. S. Rev. Stat. § 1889, under which it is held that express business is an industrial pursuit. Wells v. Northern Pacific Ry. Co., (1885) 23 Fed. Rep. 469. 12 In Florida and the Territories. 13 In Florida. 14 In Delaware and the Territories. 17 In the Territories. The establishment When under the control of the and maintenance of a wharf-boat legislature shall provide by general law only "for the creation of corporations." In Iowa no exclusive privileges can be granted to a corporation. Under the constitution of Colorado, neither the State, nor any county, city, town, township, or school district can make any donation or grant to, or in aid of, or become a subscriber or shareholder in any corporation or company. The provision of a State constitution, that, when a bill is presented for an act of incorporation, it shall be continued till another election of members of the assembly shall have taken place and public notice of the pendency thereof is given, is directory to the assembly, and, in the absence of any clause forbidding the enactment without observing the directions, does not affect the corporator, unless the State itself intervenes." § 9. General enabling acts.- In compliance with the constitutional provisions mentioned in the foregoing section, the legislatures of the several States have enacted general laws for the formation of ordinary business corporations. These acts generally provide in substance that the persons purposing to form a corporation shall sign and acknowledge an instrument called the articles of association, setting forth the name of the corporation, the object for which it is to be formed, the principal place of business, the amount of its capital stock and the number of shares into which it is to be divided, and the duration of the corporate existence. These articles being filed in the office of the Secretary of State or in designated courts of record, a certificate is issued therefrom, reciting that the provisions of the act have been complied with, and thereupon the incorporators are vested with corporate existence and the general powers incident thereto. Exceptions are made in and steam elevator at Monroe, for a general storage and forwarding business, is a "work of public utility," within La. Rev. Stat. § 683, for which a corporation may be authorized. Glenn v. Breard, 35 La. Ann. 875. The numerous provisions of the State constitutions relating to the creation of corporations and the exceptions thereto are set forth in detail in Stimson's American Statutory Law, § 441. 5 1S. C. Const. (1868), art. xii, § 1. 4 Colorado Central R. Co. v. Lea, 5 McClinch v. Sturgis, 72 Me. 288. 6 The New York Act of 1875, ch. 611, so far as it relates to the initiatory steps in the formation of ordinary business corporations is as follows:-§ 3. Whenever five or more persons, a majority of whom shall be these statutes with respect to railway, insurance and banking companies, the formation of which is provided for by separate citizens and residents of this State, shall propose to form a corporation under the provisions of this act, they shall make a certificate to that effect, which certificate shall be signed by each of such persons and duly acknowledged by them before some officer authorized to take acknowledgments under the laws of this State. Such certificate shall set forth: 1. The name of the proposed corporation. 2. The object for which it is to be formed, including the nature and locality of its business. 3. The amount and description of the capital stock. 4. The number of shares of which such capital stock shall consist. 5. The location of the principal business office. 6. The duration of the corporation, which, however, shall not exceed fifty years. § 4. Such certificate shall be filed in the office of the Secretary of State, and the Secretary of State shall thereupon issue a license to the persons making such certificate, empowering them as commissioners to open books for subscriptions to the capital stock of such corporation at such times and places as they may determine; but no license shall be issued in the case of a proposed corporation, having the same name as an existing corporation in this State, or a name so nearly resembling that of an existing corporation as to be calculated to deceive. Within ten days after the said subscribers' meeting, said commissioners shall file, in the office of the Secretary of State, a verified record of the proceedings thereof, containing a copy of the subscription list, a copy of the bylaws adopted, and the names of the directors chosen. Thereupon the Secretary of State shall issue to said directors a certificate, setting forth that said corporation is fully organized in accordance with this act. Such certificate shall include a copy of the original certificate provided for in section three of this act, the date and place of the subscribers' meeting, the names of the directors elected, and a statement that all the provisions of this act have been duly observed in the organization of such corporation. A copy of such certificate shall, within ten days after the issuing thereof by the Secretary of State, be filed in the office of the clerk of the county in which the principal business office of such corporation is situated. Such certificate shall be recorded at length in a book to be kept in the office of the Secretary of State to be known as the record of incorporations, and also, in a similar book in the office of the county clerk aforesaid. Such certificate, or a copy thereof duly certified by the Secretary of State or his deputy, shall be presumptive evidence of the incorporation of the corporation named therein, in all courts and proceedings in this State. The Secretary of State shall receive for the filing and issuing of all the necessary documents in and about the organization of a corporation under this act, the sum of ten dollars, and for each certified copy of certificate of incorporation the sum of three dollars, which sum shall be paid into the Treasury of the State, and county clerks shall receive the fees now allowed by law. Upon every amendment of the by-laws of any such corporation, a copy of the amended by-law shall be filed in the office of the Secretary of State and of such county clerk, and shall not take effect until so filed, and a copy thereof, certified by the Secretary of acts. The statutes of New York may be regarded as typical of American legislation upon the subject in hand. § 10. General acts authorizing the formation of religious corporations. While the constitution of the United States prohibits congress from making any law respecting the estab-lishment of religion,2 and the constitutions of the several States generally guaranty the free exercise and enjoyment of religious profession and worship without discrimination, there are nevertheless statutory provisions in the several States authorizing the incorporation of religious organizations and regulating the governance thereof. And the New York legislation, for example, not only regulates the organization of churches. in general, but also contains provisions respecting particular State, or his deputy, shall be received as presumptive evidence of such amended by-law in all courts and proceedings. § 87. 1. Under Rev. St. Mo. $$ 762, 926, providing that no certificate of incorporation shall be issued by the Secretary of State to any company or association under the same corporate name and style, or in imitation of the name already assumed by another corporation, an association organized for the purpose of dealing in real estate and stocks in Kansas City, under the name of "The Kansas City Real Estate Exchange," will not be entitled to a certificate, when there is already in existence in that city a duly incorporated company, carrying on the same business, under the style of "Kansas City Real Estate and Stock Exchange," as the two names are substantially the same. And in determining whether a company seeking a certificate of incorporation has adopted a name that is the same as, or an imitation of, that of an existing corporation, as prohibited by Rev. St. Mo. SS 762, 926, the Secretary of State must exercise his discretion, and he will not be compelled by mandamus to issue a certificate until it is shown that the law has been complied with by the association in the selection of its name. State v. McGrath, (1887) 92 Mo. 355. 1 Thus in New York, in addition to these acts for the formation of ordinary business corporations, Laws of 1875, ch. 611, § 1, it is enacted that "Corporations may be organized under the provisions of this act for the carrying on of any lawful business except banking, insurance, the construction and operation of railroads, or aiding in the construction thereof, and the business of savings banks, trust companies or corporations intending to derive profit from the loan or use of money, or safe deposit companies, including the renting of safes in burglar and fire-proof vaults." N. Y. Laws of 1875, ch. 611, § 1. A corporation organized for the purpose of building a union depot for railroads, and of owning, maintaining different lines therefrom within the city limits, is not an ordinary railroad company. People v. Cheesman, 7 Colo. 376. 2 U. S. Const. Amend. I. 3 E. g. N. Y. Const. art. i, sec. 3; N. Y. Rev. Stat. p. 93, § 9. 4 E. g. N. Y. Laws of 1813, ch. 60. |