Thomas v. Dakin

T}ie following opinions were delivered :

This is an action brought by the plaintiff, as president of the Bank of Central New-York, an association formed under what is familiarly known as the General Banking Law, passed April 18, 1838, to recover several demands due the institution.

The defendant has demurred to the declaration, and urges the unconstitutionality of the law by way of defence; and it is insisted, in his behalf: 1. That the associations formed under this law are corporations; and 2. That a general law authorizing the creation of these bodies, is inconsistent with the ninth section of the seventh article of the constitution-. On the part of the plaintiffs, it is urged in reply: 1. That the associations are not corporations ; 2, That if they be, the act authorizing them may be passed by a majority bill > and 3. If within the ninth section, still the law may be passed by two-thirds of the members elected.

Are these associations corporations? In order to determine this question, we must first ascertain the properties essential to constitute a corporate body, and compare them with those conferred upon the associations; for if they exist in common, or substantially correspond, the answer will

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,

' 1, Upon'a perusal of these provisions, it will appear that -' the association acquires the power to raise and hold for com?- , jnon use any given amount of capital stock for banking pur? .poses,, 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 associa? tion; to choose all officers and agents that may be necessary for the purpose, and remove and appoint them at pleasure. 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 aré 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

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 his 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

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 countrv. and the developement of her capac

It was further urged, that the general laws for the tncorpo* ration of religidus societies, &c. existing at the adoption of the constitution, and since continued in force, could not be sustained if the one under consideration failed. Not so. They were not abrogated by that instrument: the thirteenth section of the seventh article only abrogates “ such of the said acts, and parts thereof, as are (were) repugnant to the constitution.” These were not repugnant, any more than existing charters. The ninth section, the only one bearing at all on them, is prospective, and operated only upon future legisla* tion, leaving in full force all existing laws on the subject.

III. May this general law be constitutionally enacted by the assent of two-thirds of the members elected to each branch of the legislature ?

Two different constructions of the ninth section are claim* ed. For the defendant it is urged, that according to its true intent and meaning, each corporation thereafter to be created by the legislature must receive the direct assent of two thirds of the members elected : While for the plaintiff it is insisted, that the provision is fairly complied with, when the assent of two-thirds is given to a general statute, establishing a system for the admission of voluntary associations to corporate privileges : in other words, when the assent is indirectly given to the creation of each. If we regard the clause as intended to check the undue multiplication of these bodies, it is quite clear that the former interpretation will most effectually attain the object. It secures a perpetual restraint upon their creation, both in respect to the delibera

Recurring to the section, <§> 9, it will be seen, that the words descriptive of the nature and character of the “ bill,” and which' distinguishes it as falling within the restriction, only import one “creating” “any body politic or corporate.” How or in what mode the “bill” shall create them—what shall be its particular provisions—whether it must create directly, or may do so indirectly, is not prescribed, and of course must depend upon the construction to be given to it. One thing it secures in terms, that however the “ bill ” may be framed, if it creates a corporation, it can pass only by two-thirds. Hence it may be argued with considerable effect, that the framers of the constitution did not intend to restrict the discretion of the legislature in respect to the form and provisions of the bill, its particular arrangement and detail: whether it might or might not embody provisions creating one or more corporations at the same time,- or provide for their creation at will for specified objects upon cer= tain stipulations and conditions to be first complied with ; but that they intended simply to inhibit the passage of whatever bill might be devised, creating directly, or indirectly, these institutions. This view presents, undoubtedly, the strongest ground upon which the construction contended for by the plaintiff can be placed. The contrary one, beside giving greater force and effect to the clause, it must be ad

To create a corporation “ by bill-,” would seem naturally enough ro require that the bill should purport, on the face of it, to create one ; that the corporate body should be the direct result of its enactment into a law; and there is plausibility in saying, that one formed by voluntary association under a general statute, is not created “ by bill.” But the section should be construed to mean the same as if the phrase “ by law ” had been used instead of “ by bill,” for the bill cannot be said to create any thing till passed into a law ; it is the law, not the bill, properly speaking, that creates the corporation, and the latter term is obviously used in the same sense with the former. The clause would then read thus : “ The assent of two-thirds,” &c. “ shall be requisite to every lata creating,” &c. Now, though it might at first strike the mind somewhat absurdly to contend that these corporations thus created under a general statute, are created by bill within the words of the constitution, yet when ive fix upon the obvious meaning of the term, the difficulty, in a measure, disappears : for it must be admitted that corporations formed under the general act are created by law. All the powers and privileges possessed, and which constitute the corporate body, are derived directly from it. The •association itself is a nonentity: it receives all its vitality from the law, and is, emphatically, the creature of it. What adds considerable force to this view is, that unlpss we hold those thus constituted to be created by bill within the meaning of the constitution, it will be impossible-, upon consistent reasoning, to bring any statute, even one purporting to create them, directly within the restriction: for even in that case, the bill or law does not create one absolutely and by its own force, any more than this general statute. Some act is still necessary to be done by the persons intended to be incorporated; they must, at least, assent to the terms prescribed, and frequently first perform onerous stipulations and conditions. The legislature cannot compel a citizen to be a private coiporator; it is his concurrence and performance of the conditions, if any, that gives to the law all its

. Then we have a bill embracing an indefinite number of banks without restriction as to the persons upon whom the privileges and powers are conferred, or as to the places where the institutions are to be carried on, and which confessedly, (if any number may be included, which I do not

The plaintiff is therefore entitled to judgment on the demurrer, with leave to amend on the usual terms.

The plaintiff declares as president of the Bank of Central New-York, an association formed under the general banking law of April, 18, 1838, in assumpsit on a debt which he avers to be due to “ The Bank of Central New York,” the name of the institution, not to the members of the association jointly, naming them by their baptismal names, in the manner of stating a debt due to a partnership.

To this declaration, it is objected, in the first place, that, admitting the plaintiff has a right to sue, the debt is not set forth according to its legal effect, because it is not stated as directly due to the plaintiff. The words of the statute, <§, 21, are, “ that all suits, actions and proceedings, brought and prosecuted by, or on behalf-of such association, may be brought or prosecuted in the name of the president thereof.” Under this statute, the proper course of pleading is to show, in the first place, that a debt is due to the association ; and then, that the nominal plaintiff was president at the time of declaring. That is done in this instance, and in apt words, provided the names of the real creditors are sufficiently designated by the general name, “ The Bank of Central New-York.”

The second point taken is, that associations under the act are mere partnerships of individuals, and cannot delegate the right of suing to the president in his own name, but must sue in their own baptismal names, unless they are a corporation. This is true at the common law. The parties holding the legal interest must sue in their own names ; and they must all sue as natural persons, and all be named as plaintiffs. But it does not follow that the president or other person may not be enabled, by a special act of the legislature, to bring an action in his name as president, for

If it be a partnership, however, perhaps the declaration is defective on demurrer, in not correctly, or rather not fully describing the persons to whom the debt is due. It is not due to an artificial person, which can be described by a collective name, unless “ The Bank of Central New-York”

The general banking law provides, that any person or association of persons, may legally transfer to the comptroller a portion of public debt, or equal portions of public debt and bonds and mortgages on real estate, § 2,7 ; and may then issue a corresponding amount of bank notes to circulate as money. <§> 3, 14. Such person or association may make the notes obligatory, and payable on demand at their place of business, after having executed and signed them in the manner prescribed by law. § 3. The signa-»ture to notes, &c. and all contracts, is to be by the president or vice president and cashier, § 21; any number may associate to establish offices of discount, deposite and circulation, with an aggregate amount of capital not less than $100,000. In order to render the association legally efficient, they shall make and file with the county clerk a certificate, specifying “ the name assumed to distinguish such association, and to be- used in its dealings,” its place of business, “ amount of the capital stock of such association ;” the names, &c. of the shareholders, and the number of shares held by each ; the period at which such association shall commence and terminate. § 16. The association may carry on the business of banking by discounting, &c. receiving deposites, buying and selling bullion, foreign coins and bills of exchange, in the manner specified in their articles of association, &c.; by loaning money on real and personal security; “ and by exercising such incidental powers as shall be necessary to carry on such business.” They may choose one of their number as president of such association, and appoint a cashier and such other officers and

The comptroller is first to engrave and print the bills, and cause them to be countersigned by his appointee, to be numbered, registered, and delivered to the association in amounts proportioned to the securites assigned to him. <§> 1, 2. 7. He is to inquire into and approve the public debt or bonds and mortgages, <§> 2, 7, 8, which are to remain in his hands as securities for the prompt payment of the notes of the association ; and on default of the makers, such securities may be sold by him, and the avails appropriated to

Suits, actions and proceedings by or against such association, may be brought in the name of the president, or against him ; and shall not abate by his death, resignation or removal from office, but may be continued in the name of his successor; and all judgments and decrees against the president, are operative only against the joint property of the association, which may be taken and sold by execution. >§> 21, 22. No shareholder is liable in his individual capacity, unless he is declared to be so by the articles. <§> 23.

The Bank of Central New-York is avowedly an association of persons formed under this law; in which there is no proviso, such as we find in the British statutes giving partners a right to sue by their officer, that nothing contained in the act shall be construed to create a corporation, Colly. on Part. 655, Am. ed. 1834; and it was denied by the counsel for the plaintiff, that their constituents are either a partnership or a corporation ; nor did they favor us with any definite class of legal formation, to which the bank can be reduced. In view of a constitutional question, which I think does not arise, but which the' counsel seemed to suppose more formidable than any other, their efforts were directed mainly to establish the position, that at any rate associations under the banking law are not corporations. They said there are four distinctive indicia which mark an aggregate corporation and separate it from every thing else: 1. A collective existence by name, created by the sovereign power exercised directly or mediately ; 2. A standing in court as a collective existence by a given name or designation, with the rights and liabilities of a party litigant; 3. Power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation ; 4. Power conferred by statute to make bylaws, in other words, to prescribe rules of action for persons without their consent.

The associations formed under the act may, like our ordinary banks, elect their president, cashier and directors, confer on the latter as I have assumed and intend to show, the power to make and repeal by-laws, to regulate elections, and through their proper agents in the name of the. association, to exercise all the other functions of our ordinary incorporated banking institutions. The latter are well known as aggregate moneyed corporations. It cannot be denied that a voluntary association or partnership might, temporarily, also elect the like officers and agents, confer upon them nearly the same powers, and perform about the same functions,, without any charter or act of incorporation whatever. Colly. on Partn. 621, Am. ed. 1834. There is, however, much difference between the power, duration and legal effect : a corporation aggregate is in law an individual entirely distinct from its members, each of whom may hold shares or interests in the corporation, legally transferable in virtue of

Most of these incidents, it is impossible for the partners to avoid by any stipulations in their articles of connection ; and in proportion as any body of men is authorized by statute to hold property and sue and fee sued without such incidents, they approach the character of a corporation. While they continue partners, they are considered as natural persons merely, as so many joint tenants or tenants in common of all their property. In proportion as, by statute, they cease to be so, they become an artificial person. These two are the only persons known to the law, according to the language of the great commentator. 1 Black. Comm. 123, “Persons,” says he, “are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us. Artificial are such as are created and devised by human laws, for the purposes of society and government, which are called corporations or bodies politic. In another part of his work, id. 467, he shows the advantages of corporations over partnerships or voluntary companies, He says, “ corporations are formed in order to preserve entire and forever, those rights and immunities which, if they, were granted only to those individuals of which the body is composed, would, upon their death, be utterly lost and extinct.” In a mere voluntary assembly, he admits the individuals that compose it, might act up to the purposes for which they associated, so long as they could agree to do so ; “ but they could neither frame nor receive any laws of rules of their conduct; none at least which would have any

Let us see how far these characteristics of a corporation

No part of the statute declares, in terms, that in respect to the persona] property of the association, such as its specie in the vaults, money on deposite, bullion purchased and debts due, it shall hold otherwise than as a partnership; and so with regard to its beneficial interest in the stocks, bonds and mortgages assigned to the comptroller, or its land, a conveyance of which it is to take in the name of the president. It is, however, the real owner of the whole. The statute declares that it shall take a name; and that the association thus named shall, after, prescribing its own duration, assign the securities to the comptroller; that it may hold specie, receive deposites, make loans, and hold real esta.te. It is impossible for a single member, as a partner may, to transfer an absolute right in any of the common effects to a third person, at least none which are tangible to any execu

Among other peculiar privileges conferred on these associations and not enjoyed by natural persons, I allude to that of the exemption of its members from personal liability for debt. This is mentioned by Angelí and Ames in their Treatise, as peculiar to a private aggregate corporation, Angell & Ames on Corp. 349, and the cases there cited at p. 23 ; they notice it as a striking distinction between a corporation and a partnership.

Let us now inquire whether the power of making by-laws is conferred. That, with several other powers of a corporate character, if they exist at all, must be referred to the general clause in the statute, giving the associations a right to exercise such incidental poioers as shall be necessary to carry on their business. One of these necessary powers is obviously to make by-laws. Who ever heard or supposed that a board of directors with power to enact by-laws, is not necessary in every aggregate banking institution ? That such a power is necessarily incidental to the carrying on its business, is sufficiently evinced by the fact that no such institution has ever found itself able to proceed without it. I do not deny that partners may, by agreement, confer that power even on the majority of a board of directors; but the power Would be, like any other, revocable at the will of the constituent. In an aggregate corporation it is permanent, and this is doubtless the reason why Blackstone and others mention it as a distinctive characteristic. 1 Kyd on Corp. 69. Ang. & Ames on Corp. 58. No reason was mentioned in argument, nor can I conceive any, which exempts associations created under the general banking law, from a neces

The power to make by-laws ivas very properly treated by the learned counsel for the plaintiff, as the most distinct characteristic of a body politic; and they labored, though I think clearly without effect, to show that associations under the general banking law do not possess the power. Yet at the same time they admitted, that no corporation in the state could fulfil the object of its creation without such power. That admission alone, if correct, we have seen brings the power, as a necessary one, within the general clause of the statute. The act of the legislature is, in itself, but the outline, the covering to the machinery within. The moment we are over the threshold, we see a board of directors, a legislature made permanent and indissoluble for hundreds or thousands of years. In the language of Blackstone before cited, “ as one person they have one will, which is collected from the sense of the majority of the individuals; this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of their little re public.” The third article of the North American Trust Company, <§> 1, is framed in that spirit. It is in these words s “ All the power, rights and privileges of each and all the associates, and those who may become such by virtue of these articles, are hereby irrevocably delegated to and vested in, and shall be exercised only by a board of directors, and such officers and agents as they shall appoint.” The subsequent articles provide for the perpetual election and succession of the members of the board. Here resides that one will, mentioned by Blackstone, which regulates the whole, which acts as that of one person and under one name. Here we see more distinctly the corporation described by Grotius, whose definition we shall by and by cite in another connection, united in name with one constitution, or one spirit, (spiritum unum.') Here is a majority acting and binding the whole, irrespective of consent from the constituent, except by his representative; in short the same power is exercised in the same form and with the same effect, as by an ordinary safety fund bank direction. The directors make

After a corporation is formed and named, says Black* stone, 1 Black. Comm. 475, “ it acquires many powers, rights, capacities and incapacities. Some of these are necessarily and inseparably incident to every corporation ; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course, as 1. To have perpetual succession. This is the very end of its incorporation ; for there cannot be a succession forever, without an incorporation, &c. 2. To sue or be sued, implead or be impleaded, grant or receive by its corporate name, and do all other acts as a natural person may. 3. To purchase lands and hold them for the benefit of themselves and their successors, &c. 4. To have a common seal, &c. 5. To make by-laws; &c. The same powers are mentioned in 2 Kent’s Comm. 277, 3d ed.

As to the first requisite of perpetual succession, Kyd observes, when it is said that a corporation is immortal, we are to understand nothing more than that it is capable of an indefinite duration, 1 Kyd on Corp. 17 ; and, indeed, it is well known that our common banks are none the less regarded as corporations, because their charters are limited to a term of years. It is enough that they enjoy the right of succession for that term. As to the second requisite of á corporation using its own name in suits, and in grants, &c. this is not essential; clearly it may be an act of the legislature, and the books say even by prescription, to a certain pxtpnt, sue or defend in one name and deal in another ; and,

The great and essential object to be attained by the creation of a corporation, is continuity [sometimes called im mortality] and individuality; “ properties,” says Ch. J. Marshall, “ by which a perpetual succession of many persons are considered as the same, and may act as the single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand.” Dartmouth College v. Woodward, 4 Wheat. 636 . Angel & Ames on Corp. 2. A peculiar sort of individuality, and a peculiar mode of succession, for a particular purpose, and not allowed by the general law to natural persons, enter into every definition of a corporation that I have seen. 1 Kyd on Corp. 2, 3. With us, there can be no recent creation of such an artificial person except by statute. 2 Kent’s Comm. 276, 3d ed. No agreement of individuals can so far alter the nature of things ; and, as we have seen of persons, there can be only two kinds, natural and artificial, so there can be but two modes in which property is transmitted by succession. The one takes place between natural persons, of which we have an example in descent on the death of the ancestor; the other is between predecessors and successors in a corporation aggregate or sole. The one may be called a natural, and the other an artificial succession ; and it is evident that the latter cannot exist independent of a corporation, any more than the former without natural persons. 1 Kyd on Corp. 2. 3.

In the associations created by the banking law, great care has been taken to introduce and maintain corporate

It has been impossible for me to see the force of the argument that, because the legislature have constantly avoided to call • these associations, or any of their machinery, a corporation, therefore we cannot adjudge them to be so. If they have the attributes of corporations, if they are so in the nature of things, we can no more refuse to regard them as such, than we could refuse to acknowledge John or George to be - natural persons, because the legislature may, in making provisions for their benefit, have been pleased to designate them as belonging to some other species. Should the legislature expressly declare each of them to be corporations, without giving them corporate succession, or other artificial attributes, the declaration would not make them so. On the other hand, even an express legislative declaration that certain associations are not included in the definition of corporations, vyould not change their character, provided they should in fact be clothed with all the essential powers of corporations. Suppose the legislature should attempt to create an ordinary safety fund bank, with its usual machinery, by a majority vote ; could the bank thus created maintain its ground, merely because the statute might, in conclusion, declare that such bank should not be called or known as a corporation ? The restrictive provision in the constitution was levelled at the thing, not the name; at that species of legal being, already known to the law as a corporation, not what the legislature1 might call so.

I before remarked that, in the statute before us, the legislature no where disavow the intent to create corporations. On the contrary, they went on conferring attribute after attribute, till at length they seem themselves to have viewed the associations, for the formation of which they had been providing, as moneyed corporations. Accordingly they ex

There was nothing incompatible with this view in the constant previous use of the word association. This is said to signify “ confederacy, or union for particular purposes, good or ill.” Johns. Dict. 4to. Association, 2. In that sense it is a generic term, and may indifferently comprehend a voluntary confederacy, which is a partnership dissoluble by the persons who formed it, or a corporate confederacy, deriving its existence from a statute, and dissoluble only by the law. For the first, there is no need of a statute or charter. Natural persons, as they were created and exist, were enabled to form it, but they are tied down and must continue natural persons, until the legislature coming to their aid, disenthrals them, and with their own consent, transforms them collectively into a single person of another species. This has been likened, by Sir John Davies, to the creative power of Deity. He says :

“ Of this we find some foot-steps in our law,

Which doth her root from God and nature take ;

Ten thousand men she doth together draw,

And of them all one corporation make.”

Grotius calls a corporation consociatio, which signifies association, He applies the term to a people, which is properly considered a corporation in respect to its power of individual action and ownership. The late Chief Justice Savage, in North-Hempstead v. Hempstead, 2 Wendell, 135, says: “ The state of New-York owns a large quantity of land, which belongs to the people of the state, not in their individual, but in their political capacity. The people,

It was said on the argument, that should one of the associations created by the banking law refuse to elect a president, it could have no standing in court; that it would want one of its integral parts. If that were so, it is no more than what may happen to an acknowledged corporation. If that cease to perform its appropriate functions, or, in other words, is guilty of non-user, it may be proceeded against and ousted by quo warranto. 2 R. S. 483, § 39, sub. 3, 2d ed. 2 Kyd on Corp. 448, 9, et seq. Angel & Ames on Corp. 77. The better opinion is, however, that so long as members capable of choosing officers exist, the omission will not ipso facto work a dissolution, but a mere suspension at most. Angel & Ames on Corp. 77. Nor is it by any means certain, that a corporation created under the general banking law, may not sue or be sued by its corporate name. The statute merely gives an option to sue the president, or bring actions in his name. § 21, 22. The right to sue or be sued in the corporate name, is not expressly prohibited ;• and such capacity being an implied incident of every corporation, there is a doubt whether it can be taken away without an express prohibition. There would be more question in respect to the power of contracting independent of the president, inasmuch as the statute has declared, § 21, that contracts shall-be signed by him. But a presiding officer is not, in the nature of things, essential to all kinds of corporate action. It was said, in the case of Sutton’s Hospital, 10 Co. Rep. 28, 9, that an aggregate corporation might be complete, though it had only a body without a head ; and several instances are there given. Again : suppose, that on the failure to elect a president, the

In endeavoring to identify this artificial thing, or, more properly, person, I have, so far, confined the survey mainly to the books of the common law, and other books which have given us features and lineaments as known from the most ancient days to the passing of the revised statutes. The latter, it will be found, have not varied the description. 1 R. S. 602, 2d ed. They declare as follows: § !._ ce Every corporation, as such, has power: 1. To have succession by its corporate name, for the period limited in its charter ; and when no period is limited, perpetually : 2. To sue and bé sued, complain and defend, in any court of law or equity: 3. To make and use a common seal, and alter the same at pleasure: 4. To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding- the amount limited in its charter: 5. To appoint such subordinate officers and agents as the business of the corporation shall require, and to allow them a suitable compensation : 6. To make by-laws not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock. <§> II. The powers enumerated in the preceding section, shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.”

Regarding then “ The Bank of Central New York” as a corporation, the pleader brings assumpsit against the defendant, and declares in the name of “ Anson Thomas, who

The words of the constitution are, that “ the assent of two-thirds of the members elected to each branch of the legislature, shall be requisite to every bill creating any body politic or corporate.” The restriction intended to be imposed, I am of opinion, relates entirely to the number of members whose assent is required, and not to any particular form in which the corporation is to be created, nor to the number of corporations provided for by the bill. It is perfectly well known that the legislature have always exercised the right of passing general statutes authorizing associations of individuals to incorporate themselves on complying with certain provisions. These incorporations have generally been for religious, literary or manufacturing purposes ; and instances are too familiar with every one to require a quotation of examples. It is obvious that the same power must always have been understood to exist with reference to any other objects. It was as well understood when the new constitution was adopted, as at any time since; and had the restraint now contended for been desirable by the framers, nothing was easier than to say so. We must understand

It was supposed, on the argument, that this conventional feature in the associations to be formed under the banking law, destroyed their character as corporations, which were said to be the mere creatures of the legislature, or of the sovereign power. As that can never be the sole creative power, the argument of course fails. Both partnerships and private corporations are conventional, so far as the members are concerned. The difference consists in this, the former is authorized by the general law among natural persons,

It was also said the legislature must give the name of the corporation. That is true enough, but it may be done either in the statute itself, or the act may allow the corporation to choose its own name. Such has been the constant course under our statutes authorizing the incorporation of religious institutions, and some others. It is well settled that the king alone may delegate the power both of creating and naming corporations. 1 Kyd on Corp. 50. Can there be a doubt that legislative delegation would be equally efficient ? It has, I believe, been exerted and long acted upon without question, in the case of the Regents of the University. The creation of the name, as well as the corporation itself, may be by an act of the sovereign power, exerted either mediately or immediately, according to circumstances.

But this branch of the argument need not be pursued j for it was agreed on both sides, at the bar, that we must, on

Being clear that the plaintiff’s declaration is sufficient in substance, and that he has technically and aptly set forth his cause of action according to the statute, I think there should be judgment for him, with leave to withdraw the demurrer, and plead on payment of costs.

I concur fully in the opinions expressed by my brethren, that associations formed under the general banking law are corporations, and that the assent of two-thirds of all the members elected to each branch of the legislature was necessary to the passing of the act. But, as at present advised, I cannot concur in the opinion that the legislature has the constitutional power, although two-thirds may assent, to provide by a general law for the creation of an indefinite number of corporations at the pleasure of any persons who may associate forth at purpose.

It was conceded on the argument, that the demurrer does not reach the objection that the act was not passed by a two-thirds vote ; and I have not, therefore, considered the question whether we can look beyond the statute book. A plea may render it necessary for us to pass upon that -question.

Judgment for plaintiff