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to the courts of justice, so that rights might be enforced against it. As parties cannot litigate in our courts without names, every corporation must have a name by which it can sue and be sued. This is a feature which clearly distinguishes corporations from voluntary associations. No such association can sue or be sued in its assumed name; but the parties, who compose it, must appear before the Court, or those in whom their property is vested in trust for them. The distinction is between the collective existence appearing by its name, and individuals appearing by their names. In the former case, the Court recognizes the body corporate as a legal existence, having a right to be heard; and in the latter, it recognizes individuals, who claim to be heard in their own right, or as trustees for others. The idea should be kept distinctly in view, that this peculiar feature of a corporation consists in the right of the corporation itself to appear in Court by its own name, and not in the name of one of its officers, or of any other person as a trustee for it. Voluntary associations, often, and municipal corporations, occasionally, are permitted by statute to sue and be sued in the name of some officer or trustee. The joint ‘stock companies in England, I believe, are all permitted to sue and be sued in the name of any of their registered officers; and several of our cities and villages, which are municipal corporations, are allowed to sue in the names of their officers; but I am not aware that any private corporation in this State can sue or be sued, except in its corporate name. While a voluntary association may be allowed, by statute, to sue and be sued in the name of one of its officers, without thereby becoming a corporation; so, a corporation may, by a statutory provision, sue or be sued in the name of one of its officers, without losing its corporate character. But a collective existence, irrespective of individuals, suing and being sued by its name, is a peculiar property of a corporation, and belongs to no other kind of association.
THIRD : Power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation.
This is another distinctive characteristic of a corporation, which separates it from all other associations. When a copartnership, or any other unincorporated company, takes a title to real or personal property, that title is conveyed to, or vests in the individual members of the company, or some of them, designated by agreement to receive it for the benefit of all. And when title is transferred by such an association to a third person, it is not conveyed by the company in its collective capacity, but by the individuals who compose it, or by those who hold the title for them. While the company buy with the common fund and sell to benefit it, and the transactions are, in fact, those of the association, the title to their property comes and goes, to and from, one or more individuals. A corporation, alone, of all associated action, takes and conveys title, acquires and gives rights, collectively and by its collective name.
Fourth: Power conferred by statute to make by-laws, or in other words, to prescribe rules of action for persons, without their consent.
This power is always enumerated among the ordinary incidents to a corporation; but two distinguished writers have not considered it among the essential requisites. Chancellor Kent has not mentioned it, when stating the essence of a corporation; (2 K. C. 277, 2 ed.) and Mr. Kid expressly says, it “is not so inseparably incident to a corporation aggregate, that it cannot subsist without it; for there are some aggregate corporations to which rules and ordinances may be prescribed, and which they are bound to obey.” (1 Kid. on Cor. 69.)
The Legislature may, undoubtedly, when creating a corporation, enact its by-laws, and prohibit it from making any others. So the Legislature may mould these artificial beings into any form, which the public interest may require, or even the fancy. of a committee suggest; and give them all, or none of the peculiar features of a corporation, as has been already remarked. But when inquiring, as we now are, for the distinctive characteristics of a corporation, without reference to direct and effeetive legislative action, the question is not, what the Legislature, which has unlimited authority in this respect, can do, or might have done, in any given case; but what is the essence of a corporation, independent of the creative action of the sovereign power —and we are not aided in the latter, by ascertaining the former. Hence, the remark of Mr. Kid, that the power to make by-laws is not an inseparable incident to an aggregate corporation, because rules and ordinances may be prescribed for some aggregate corporations, which they are bound to obey, appears to be unsound in principle, and his reason, to be wholly insufficient for his proposition.
The point of inquiry is, can a corporation exist, without bylaws? and if they are not made for it, by the power which creates it, must not the corporation itself have authority to make them 2 Chancellor Kent takes his statement of the essence of a corporate body from Mr. Kid, and cites him as his authority; (2 K. C. 277, 2d ed.) We have then only Mr. Kid's assertion, for he cites no authority, that power to make by-laws is not an inseparable incident to a corporation.
A corporation acts wholly by agencies. It can do nothing itself. It is a collective being, invisible, intangible, and exists only in contemplation of law. It is neither seen nor felt, except by its agents. Those agents are its officers and servants: they act under authority, and their duties and liabilities are re
gulated and tested by the rules which regulate the relation of principal and agent. These are well established principles.
How can a corporation have an effective existence, without power to prescribe rules of action for its officers and servants 2 Let it have existence, a right to sue and be sued, and to take and convey title: can it then act efficiently Does it not yet want one more requisite of life 2 Does it not want power to regulate and direct its action ? And as it acts through the instrumentality of agents of all grades, from the president down to the servant, must not that power be one, which enables the corporation to prescribe rules of action for persons without their consent? The acts of every corporation in this State may be appealed to for the purpose of showing, that the exercise of this power is universal; and I doubt, whether there is a corporation in the State, which, if all its by-laws were repealed, and the power taken from it of enacting others, could fulfil the object of its creation; and if not, it must, of course, cease to exist. This power, too, must be exercised irrespective of the consent of the persons affected by it: otherwise, every member or agent of a corporation must express his consent to be bound by its bylaws; and when their efficacy depends on consent, their character,is entirely changed. They then become matters of contract; they cease to be laws and become agreements.
Of the latter-character, are all the rules and by-laws of voluntary Associations. Their whole basis is contract, and the superstructure is the same. Herein lies the difference between corporations and all incorporated companies. The former have authority from the sovereign power to make by-laws, and may, therefore, prescribe rules of action for persons without their consent; the latter have no such authority, and can only prescribe rules of action for their members, agents or others, with their consent; and thus the power to make by-laws which control the action of individuals without their consent, is a peculiar feature of a corporation.
The four requisites above stated, when united, constitute an ;
effective being, which can perform the functions of legal life; and without either is helpless; unless the defect is supplied or other powers given by statute. But to give a voluntary association the character of a corporation, by reason of its possessing corporate powers, we must be satisfied, that it has all these four requisites.
Other properties have been said to be peculiar to corporations; but do not appear to be so, on reason or authority.
One of those is a Seal. Formerly it was held, that a corporation could only be bound by its seal; and when that was the rule, a seal was, of course, of the essence of a corporation. But that rule has been abrogated for years. And now, a seal, though an ordinary and very important incident to a corporation, is no longer an essential requisite. [Steel vs. The Oswego Cotton Manufacturing Company, 15 Wend. R. 265.] We must not, however, undervalue it. It may be stated, without the fear of contradiction, that the Legislature of this State has never incorporated a company by special or general act, without giving it a right to have a common seal. It is a universal index of a corporation, and will aid materially in the inquiry, hereafter to be instituted, respecting the intention of the Legislature, to constitute the associations in question, corporations.
Another, is the right “of enjoying privileges and immunities in common.” Mr. Kid, in his introduction, [1 K. on Cor. 13,1 specifies the properties of a corporation, and among them mentions this one. But in the body of his work, when enumerating the capacities,