tended to January 1, 1877, for securing such site and building and conveying them to the board of directors.

While it can not be denied that some of these powers might be exercised by a board of directors in their collective capacity, without being incorporated, it is equally undeniable that some of them could not. The capacity and power to take conveyances of lands and hold and dispose of them for the use and benefit of the university, according to the various and diverse trusts imposed upon them by their donors, and to transmit title to lands to their successors in office in perpetual succession, without intermediate conveyances, could not belong to this board of directors unless incorporated.

It is true the legislature has not declared it to be a corporation in express terms, but this was not essential. (Angell & Ames on Corporations, § 76; Thomas v. Dakin, 22 Wend. 70, 103, 106.)

"It is indeed a principle of law which has been often acted on, that where rights, privileges and powers are granted by law to an association of persons by a collective name, and there is no mode by which such rights can be enjoyed, or such powers exercised, without acting in a corporate capacity, such associations are, by implication, a corporation, so far as to enable them to exercise the rights and powers granted." (Angell & Ames on Corporations, § 78.) *

The decree of the court below is affirmed with costs.

Decree affirmed.

Note. Creation by implication. 1. No precise words, such as found, erect, establish, create, or incorporate, are necessary, provided the legislative intent be manifest. 1613, Sutton's Hospital, 10 Coke 30, supra, p. 264; 1817, Denton v. Jackson, 2 Johns. Ch. (N. Y.) 320; 1828, North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; 1829, River Tone v. Ash, 21 E. C. L. 152, 10 Barn. & C. 349; 1839, Thomas v. Dakin, 22 Wend. 9 on 94, supra, p. 19; 1857, Bow v. Allenstown, 34 N. H. 351, 69 Am. D. 489; 1869, O. & V. R. R. Co. v. Plumas Co., 37 Cal. 354 (contra); 1870, Liverpool Ins. Co. v. Mass., 10 Wall. (U. S.) 566; 1881, Cent. Ag. & Mech. Assn. v. Ala. G. L. Ins. Co., 70 Ala. 120, 3 Am. & Eng. C. C. 78; 1884, Walsh v. Trustee N. Y. & B. Bridge, 96 N. Y. 427, 6 Am. & E. C. C. 45; 1889, People, ex rel., v. Wemple, 52 Hun (N. Y.) 434; 1894, Shields v. Clifton Hill L. Co., 94 Tenn. 123, 45 Am. St. R. 700; 1896, Edgworth v. Wood, 58 N. J. L. 463, supra, p. 29; 1898, Andrews Bros. v. Youngstown Coke Co., 86 Fed. R. 585.

2. The implication may arise from legislative recognition or ratification. 1830, Society for Propagation of Gospel v. Town of Pawlet, 4 Peters (U. S.) 480, 502; 1839, McIntyre Poor School v. Zanesville, 9 Ohio 203; 1841, Williams v. Union Bank, 2 Humph. (Tenn.) 339; 1864, People v. Farnham, 35 Ill. 562; 1867, Toledo P. & W. R. R. v. Town of Chenoa, 43 Ill. 209; 1884, Walsh v. Trustees, 96 N. Y. 427, 6 Am. & Eng. C. C. 45; 1894, Shields v. Clifton Hill L. Co., 94 Tenn. 123, 45 Am. St. R. 700; 1894, Andes v. Ely, 158 U. S. 312.

3. Or by a grant of lands to be held as a corporation holds lands. 1468, "If the king granted land to the men or inhabitants of D. to their heirs and successors, rendering rent therefor, as to everything touching this land they are a corporation, but for no other purpose." Rolle's Abr. Corp. F, citing Y. B. 7 Ed. 4, 30; 1817, Denton v. Jackson, 2 Johns. Ch. (N. Y.) 320; 1828, North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; 1830, Society for Prop. of Gospel, etc., v. Town of Pawlet, 4 Peters (U. S.) 480; 1840, Commissioners of Bath v. Boyd, 1 Ired. Law (N. C.) 194; 1855, People v. Schermerhorn, 19 Barb. (N. Y.) 540.

4. Or by grants of powers.

1154-89, "Of ancient times the inhabitants of

a vill were incorporated when the king granted to them to have a merchant guild." Rolle, Abr., Corporations F, p. 513, citing Register of Writs, 219, 10 Co. 30. But see 1 Kyd, 64. (The first printed edition of the Register was in 1531, but Coke claims to have had edition containing entries of writs used prior to the Norman Conquest. Preface, 10 Rep. The Register is usually considered as dating in the reign of Henry II, 1154-1189.) 1831, Justices of Cumberland v. Armstrong, 3 Dev. (N. C.) 284; 1839, Thomas v. Dakin, 22 Wend. (N. Y.) 9 on 94, supra, p. 19; 1844, Proprietors, etc., of Southhold v. Horton, 6 Hill (N. Y.) 501; 1857, Bow v. Allenstown, 34 N. H. 351; 1870, Liverpool Ins. Co. v. Mass., 10 Wall. (U. S.) 566; 1896, Edgworth v. Wood, 58 N. J. L. 463, supra, p. 29; 1898, Andrews Bros. v. Youngstown C. C., 86 Fed. Rep. 585. 5. By grant to successors. 1829, Conservators of River Tone v. Ash, 10 Barn. & Č. 349.

6. But in order that a grant of powers will have the effect to create a corporation by implication, they must be really corporate powers, and not merely such as could as well be exercised by unincorporated persons or associations. 1830, Stebbins v. Jennings, 10 Pick. (Mass.) 172; 1858, Shelton v. Banks, 10 Gray (Mass.) 401.

Sec. 59a. (3) Same. By consolidation. See infra, pp. 984-1007.

.

CHAPTER 3.

LIMITS ON THE POWER OF THE STATE TO CREATE.

ARTICLE I. FROM THE NATURE OF LEGISLATIVE AUTHORITY.

Sec. 60. (a) Delegation: General rule: There can be no general delegation of legislative authority to create corporations.

See Franklin Bridge Company v. Wood, supra, p. 279, and note below, p. 304.

Sec. 61. (b) Exceptions, or apparent exceptions:

1. Territorial legislatures.

RIDDICK, CHAIRMAN, ETC., v. AMELIN ET AL.

1821. IN THE SUPREME COURT OF MISSOURI.

5-7.

1 Missouri Reports

Cook, J., delivered the opinion of the court. This is a writ of error, prosecuted to reverse the judgment of the circuit court of St. Louis county in an action of debt instituted by the plaintiff, Riddick, as chairman of the board of trustees of the town of St. Louis, on a bond executed by said defendants to said chairman. To which the defendants plead that said Riddick and others, trustees of said town, fraudulently represented that they had legal right to lease a certain ferry, and that said Riddick, as chairman of the board of trustees, was authorized to make and execute such lease, and that said bond was executed in consideration of a lease so made by said chairman to the defendant, Amelin. To this plea the plaintiff replied: The act of the territorial legislature, authorizing the incorporation of towns; the order of the court of St. Louis county incorporating the town of St. Louis; the act of said legislature authorizing said corporation to license and regulate ferries therein, and the ordinance of said corporation authorizing the chairman thereof to let and license such ferries. To which replication the defendants agreed to demur generally, and except to the legal force and effect of the statute authorizing the incorporation of towns, and to the right of said trustees to have of and from any person licensed to keep a ferry in said town more than one hundred dollars for such license.

In support of the first point, it is insisted by the defendants that nothing short of sovereign power can create a corporation; that the

'erritorial legislature was not sovereign, and hence draw the conclusion that the act of that legislature had not the force and effect of a law. That the power which creates a corporation must be sovereign as to that matter is a principle which seems to be well settled; but sovereignty may be either general or limited, absolute or controllable. If this be not true, sovereignty could exist nowhere but with the orig inal power of making laws, which alone is absolute. The power to legislate on any subject is sovereign as to that matter, and to general sovereignty is incident the power of general legislation. It remains then only to ascertain the power of the territorial legislature, under the act of congress creating that body, and vesting it with legislative powers. It seems to be admitted that congress possessed the power of legislating for the territory, with no other limitations than such as were imposed by the federal constitution, and it has not been denied that the establishment of the territorial government with legislative powers was a constitutional exercise of the powers of congress. If congress could impart to the territorial legislature a power to legislate on any subject in relation to the government of the people of the territory, that power might, by the same authority, be made as general as the legislative powers of congress over such territory; and that congress intended to vest the territorial legislature with general powers, for the government of the inhabitants thereof, is manifest, the terms of the provisions being general, with a restrictive proviso, that no law should be passed inconsistent with the constitution of the United States.

The territorial legislature, then, had power to make all laws which they might deem conducive to the good government of the inhabitants of said territory, and the right being reserved by congress to disapprove and thereby revoke any law passed by said legislature, does not render the power of such legislature less sovereign in relation to one subject of their legislation than another; it is sovereign as to all, subject to the control of congress. On the second part, it was contended by the plaintiff's counsel that the corporation was not limited by law as to the sum which they may demand for ferry license within the limits of their corporation, and if they are, the defendants having executed their bond to the chairman, can not avoid it by showing that it was given for the payment of a sum which the trustees had no right to demand.

The fourth section of the act extending certain powers to said trustees (Acts of 1814-'15) provides that said trustees shall have full power to license and regulate ferries established within their limits, and to apply the license money to the use of the town. Here the court see no other power vested in the trustees than such as had been given by law to the courts of the several counties on that subject. On the last point the court can not see the propriety of the reasoning why this is assimilated to an individual transaction not regulated by special enactment. It is the statute which authorizes the trustees to license and regulate ferries within their limits. The terms of such license and manner of such regulations were prescribed by

law, and not left to the discretion of the trustees who were to exercise those powers. It is the opinion of the court that the trustees were not authorized by law to demand, or exact of any person, more than one hundred dollars for any such license, and that any obligation or promise for the payment of a greater sum for such license is void and not obligatory on the party making it. It is, therefore, considered and adjudged, that the said judgment of the circuit court of the county of St. Louis be affirmed, and that said defendants recover of the said Thomas F. Riddick, chairman as aforesaid, their costs by them about their defense of this writ of error expended, etc. Note. See below, Note on delegation of power to create corporations.

Sec. 62. Same, (2) Regents of University of New York:

2 Rev. St. N. Y., p. 1474. Laws of 1892, c. 378, provides:

$27. Charters.-The regents [of the University of New York, established in 1784] may, "by an instrument under their seal and recorded in their office, incorporate any university, college, academy, library, museum or other institution or association for the promotion of science, literature, art, history or other department of knowledge, under such name, with such number of trustees or other managers, and with such powers, privileges and duties, and subject to such limitations and restrictions in all respects as the regents may prescribe in conformity to law." (As Am. by L. 1893, c. 859, going into effect June 1, 1895.)

Note. DELEGATION OF POWER TO CREATE CORPORATIONS.

1. In England: Although it was early stated that the king could not delegate his power to create a corporation (2 Henry VII, 13, 10 Coke Rep. 27) it has been settled otherwise on the theory of the maxim qui facit per alium facit per se. This authority has been delegated for the creation of a single corporation, or for an indefinite number. (1 Kyd 50; 1 Bl. Com. 473.) The chancellor of the university of Oxford has a general power by charter to create corporations, and has created many, including trading corporations, to serve the students. (1 Bl. Com. 474; Angell & A., § 74.) The lords and proprietors of Maryland (McKim v. Odom, 3 Bland Ch. 416, supra, p. 222) and of Pennsylvania (3 Wils. Lect. 409) exercised such delegated authority (Ang. & Ames, § 74).

Parliament, in theory not exercising delegated but original sovereign authority, and not hampered by constitutional restrictions, can delegate, either generally or specially, its power to create corporations. Morawetz Corp., § 15; Am. & Eng. Ency., vol. 7, p. 645 (2d ed.).

2. In the United States: (a) In general. For the reasons that there is no executive with authority to create corporations in the United States, that this function pertains to legislative bodies exclusively, and these, with us, exercise only delegated, and not original power, and that the creation of a corporation is the enactment of a law that requires the exercise of discretion, it is held that there can be no general delegation of the power to create corporations in this country, on the maxim, delegatus delegare non potest. Franklin Bridge Co. v. Wood, 14 Ga. 80, supra, p. 279; 1884, State v. Simons, 32 Minn.