therefore, submitted to a jury, and while the jury in one cause might hold it valid, another in a different case, acting upon somewhat different evidence, or influenced by more persuasive advocates, might declare it void, and thus it would be a law to-day as to one party and no law to-morrow as to another, and so on indefinitely, according to the varying views which different panels of jurymen might take of disputed facts, until, perhaps, the state would be compelled to interfere by quo warranto, and have, after all these proceedings, the authoritative adjudication which sound policy, not less than correct principle, demanded at the beginning. But we need hardly say that a law, if valid at all, must be valid from its enactment, and can not be made to depend upon the opinion of a jury as to the sufficiency of the reasons for its being passed.

We are constrained, therefore, from all these considerations, to say that the determination whether a corporation has violated its charter is judicial in its nature. It requires the action of those tribunals which must hear before they condemn, and must proceed upon inquiry. If it were properly legislative, it may be that the legislature must be presumed to have given a hearing, but the fact, as we have seen in this case, is otherwise, and the cases in which presumptions are to be indulged against the facts, ought not to be multiplied. It is sufficient to say that, in our opinion, the case is one in which the party is entitled to a trial of right in fact, and can not be put off with one which rests exclusively in a presumption of law, indulged against the fact. The violation of the charter can not be legally made to appear, except on trial in a tribunal whose course of proceeding is devised for the determination of questions of this nature.

We think this the fair construction of that clause of the charter which is in question. It is not to be presumed that the legislature designed to take upon itself judicial powers, and as the act does not necessarily require that construction, it should not be given it. must suppose that an inquiry in some proper form was contemplated by means of which on fair trial it should be made to appear to the legislature that a cause existed justifying repeal. Any other view renders the stipulation worthless as a protection, but this view protects the interests of corporators, and at the same time enables the legislature to exercise its power of taking away the charter, even though the violation of corporate duty might not be of that serious character which would seem to justify declaring a forfeiture on judicial proceedings instituted, independent of this clause. The repealing act, it must be assumed, was passed through inadvertence, and probably under the impression that the charter, like many others in this state, was subject to repeal in the legislative discretion.

This being our view, it follows that the judgment of the circuit court must be reversed, with costs, and a new trial granted. CHRISTIANCY, Ch. J., and CAMPBELL, J., concurred. GRAVES, J., did not sit in the case.

Note. The charter as a law.

1. The courts take judicial notice of general incorporation laws. ton v. Cincinnati, etc., R. Co., 16 Ind. 275.

1861, Heas

And even of special acts incorporating state banks. 1850, Jemison v. Planters', etc., Bank, 17 Ala. 754; 1860, Davis v. Fulton Bank, 31 Ga. 69; 1861, Buell v. Warner, 33 Vt. 570; 1862, Gordon v. Montgomery, 19 Ind. 110; Compare Kelly v. Alabama & Cin. R. Co., 58 Ala. 489.

Or municipal corporations. 1860, Payne v. Treadwell, 16 Cal. 220; 1862, Macey v. Titcombe, 19 Ind. 135; 1864, Swain v. Comstock, 18 Wis. 463; 1875, Stier v. Oscaloosa, 41 Iowa 353; 1877, Albrittin v. Huntsville, 60 Ala. 486; 1894, Jones v. Lake View, 151 Ill. 663.

And sometimes railroad companies. 1866, Wright v. Hawkins, 28 Tex. 452; 1898, Miller v. Matthews, 87 Md. 464, 41 Atl. Rep. 176. But not always or generally. 1872, A., T. & S. F. R. Co. v. Blackshire, 10 Kan. 477; 1876, Perry v. N. O., etc., R. Co., 55 Ala. 413.

2. The charter, even though a special act, is a law of the state creating the corporation, in the sense that "ignorance of the law excuses no one;" hence all persons are supposed to take notice of its contents. 1859, Hoyt v. Thompson, 19 N. Y. 207; 1879, Thomas v. R. Co., 101 U. S. 71; 1881, Davis v. Old Colony R. Co., 131 Mass. 258, 41 Am. R. 221; 1887, Bocock v. Allegheny, etc., Co., 82 Va. 913, 3 Am. St. R. 128; 1887, Elevator Co. v. Memphis, etc., R. Co., 85 Tenn. 703, 4 Am. St. R. 798; 1890, Jemison v. Citizens' Sav. Bank, 122 N. Y. 135, 19 Am. St. R. 482; 1893, Franco-Texan Land Co.v.McCormick,85 Texas 416, 34 Am. St. R. 815; 1895, Durkee v. People, 155 Ill. 354, 46 Am. St. R. 340; 1897, Franklin Nat'l Bank v. Whitehead, 149 Ind. 560, 63 Am. St. R. 302. See particularly Elliott, §§ 212, 213; Morawetz, §§ 591, 592; Taylor, § 264; V. Thompson, § 5973, et seq.; VII. Thompson, § 8309, et seq.

3. The charter, as a law, is conclusive evidence of its validity, even though obtained by fraud; yet it will not protect those who obtained it by fraud, or fraudulently organize under it. 1863, Paterson v. Arnold, 45 Pa. St. 410; 1865, Booth v. Bunce, 33 N. Y. 139, 88 Am, Dec. 372; 1894, Davidson v. Hobson, 59 Mo. App. 130. But see Morawetz, § 769; and Taylor, § 147. 4. The charter as a contract, see, infra, pp. 707-760.

Sec. 84. Same. The charter, or articles of incorporation or association under a general law, is a license of authority for the persons named, or the promoters, to convert persons or an association of persons into the designated corporation in accordance with the terms indicated in the charter, or general law.

STATE, EX REL., V. INSURANCE COMPANY.1

1892. IN THE SUPREME COURT OF OHIO. 49 Ohio State Reports 440-447, 16 L. R. A. 611, 37 A. & E. C. C. 583.

SYLLABUS: 5. The making and filing, for the purpose of profit, of articles of incorporation in the office of the secretary of state, do not make an incorporated company; such articles are simply authority to

1Only the opinion on the point as to authority to form corporations is given.

do so. No company exists within the meaning of the statute until the requisite stock has been subscribed and paid in, and the directors

chosen.

In quo warranto.'

MINSHALL, J. 1. The defendant is a fidelity and casualty insurance company, organized under the laws of the state of New York, and doing, in this state, what by the laws of New York is authorized and known as four lines of such insurance, to wit: First, against injury, disablement or death, of persons resulting from traveling, or general accidents by land or water; second, guaranteeing the fidelity of persons holding places of public or private trust; third, upon plate glass against breakage; fourth, upon steam boilers against explosion, and against loss or damage to life or property resulting therefrom. Its right to do more than one of such lines of business in this state is challenged by the attorney-general on the ground that, by the laws of New York, no company incorporated in this state can transact in that state more than one of such lines of insurance, and, therefore, under the provisions of section 282, Revised Statutes, of this state, it has no right to make in this state more than one of the lines of insurance it is doing. That section reads as follows:

"When, by the laws of any other state or nation, any taxes, fines, penalties, license fees, deposits of money, or of securities, or other obligations or prohibitions are imposed on insurance companies of this state, doing business in such state or nation, or upon their agents therein, so long as such laws continue in force, the same obligations and prohibitions, of whatever kind, shall be imposed upon all insurance companies of such other state or nation doing business within this state, and upon their agents here."

A demurrer to the petition, objecting to the jurisdiction of the court, as well as to the sufficiency of the pleading, having been overruled, the defendant, as a third defense to the petition, answered: "That under the laws of New York, it is legally authorized and empowered to do, and is now doing, the four lines of insurance in that state, which the petition charges it with illegally doing in Ohio; and that under the laws of Ohio, a corporation could be legally incorporated and organized, with power to do the same four lines of insurance, or any one or more of them therein, but that no such company has yet been organized to do said four lines of insurance in Ohio, and hence no such company has yet made, or could make, application to the proper officers in New York for a license to do said four lines of insurance in the state of New York." A demurrer to this defense having been overruled, the plaintiff asked leave to reply in substance as follows: That on January 13, 1887, the requisite number of persons, citizens of Cuyahoga county, "subscribed and acknowledged articles of incorporation," stating therein the name, place of business, and capital stock of the proposed corporation and its object, to wit: Under paragraph 2, § 3641, Revised Statutes, to do the four kinds of insurance now being done by the defendant in this state; and

the same having been approved by the attorney-general, as in conformity to the laws of the state, were then filed and recorded in the office of the secretary of state of Ohio, "whereby" it is averred, “an Ohio corporation was duly and legally formed for the purpose of doing the lines of insurance mentioned in the articles of incorporation." [The court, after holding it had jurisdiction to oust the corporation from exercising its franchises in Ohio, but that the third defense was sufficient, because there was no Ohio company to do business in New York, proceeded]:

The next question is, should leave be given to file the proposed reply to the third defense? We think not, for the reason that it does not show that an Ohio company has been formed to do the four lines of insurance in which the defendant is engaged. It will be observed that it does not aver that any officers or directors have been chosen, or that any of the stock has been subscribed, or that any organization whatever has been effected. It is simply that "articles of incorporation" have been made, and filed and recorded in the office of the secretary of state.1 Articles of incorporation do not make an incorporated company, they are simply authority to do so.

Before disposing of the case, it may be well enough to notice another defense relied on in the answer, and to which a demurrer has been sustained, and that is, the license granted the defendant to do business in this state by the superintendent of insurance. We are all of the opinion that the issuing of a license to a foreign insurance company to do business in this state is a ministerial and not a judicial act, and, whilst it will protect the company in the transaction of its business during its continuance, is not a bar to a proceeding against it in quo warranto, where it is found to be exercising any of the franchises of the state without authority of law. State v. Fidelity and Casualty Ins. Co., 39 Min. 538, and cases cited in brief of counsel for re

lator.

Application for leave to reply to the third defense of the answer overruled and petition dismissed.

*

*

*

**

The Revised Statutes of Ohio, § 3236, provides that "any number of persons, not less than five desiring to become incorporated shall subscribe * * * articles of incorporation which must contain [certain enumerated things]." Section 3238 provides that "the articles shall be filed in the office of the secretary of state." Section 3239 provides that "upon the filing of the articles of incorporation, the persons who subscribed the same, their associates, successors and assigns, by the name and style provided therein, shall thereafter be deemed a body corporate, with succession and power to sue and be sued, contract and be contracted with," etc. It will be noticed that the statute seems to make the subscribers a corporation, before any stock is subscribed, or any organization had, yet the supreme court holds that in fact the subscribing and filing articles of incorporation only results in a license to obtain subscription to stock and organize a corporation in accordance with the further provisions of the general law.

See, also, Walton v. Oliver, 49 Kan. 107, infra, p. 565; 1895, Whetstone v. Crane Bros., 1 Kan. App. 320, and cases given under §§ 144–148, infra.

ARTICLE II. ITS GENERAL FORM-AN OFFER AND ACCEPTANCE.

Sec. 85. The offer may be by parties, and an acceptance by the state; or it may be a special or general offer by the state, and an acceptance by individuals, or an association of individuals.

PERKINS v. SANDERS.1

1879. IN THE SUPREME COURT OF MISSISSIPPI. 56 Miss. Rep.

733-743.

GEORGE, C. J. The appellant is a stockholder in the Perkinsville Manufacturing Company, and he also claims to be its creditor; and by his bill he seeks to recover from the other stockholders, under a provision of the charter of that company, hereinafter to be set out, the amount of his debt. This bill is filed also in behalf of all of the creditors of the company, and is against all the stockholders. The company itself is not made a party, which would have been the regular course in a bill of this character (a creditor's bill), since it is not clear, from the allegations of the bill, that the company is either dissolved or entirely without assets.

The main point raised by the demurrer denied the right of the complainant, upon the ground that he was not a creditor of the company, because he did not show in his bill that the company was sufficiently organized under its charter to make the contract sued on, at the time it was made. This position is founded on the second section of the charter (Sess. Laws 1870, p. 194), which provides "that the capital stock of the said company shall amount to $60,000, and may be increased, at the option of the stockholders, to $500,000, and that it shall be divided into shares of $100 each."

The obligation sued on is dated in September, 1872, and is signed by the president and secretary of the company. The authority shown for the action of these officers, is a resolution and a by-law passed by the stockholders, dated in December, 1871.

The bill alleges that $60,000 of stock was subscribed before the execution of this obligation, but it does not aver that this subscription was made before the date of the resolution and by-law, which constitute the authority for making the contract. The chancellor sustained the objection, but in this we are unable to agree with him.

It will be here noticed that this is not a bill by a creditor to collect the unpaid balance of stock due by a stockholder to the company, as was the case of Vick v. Lane, but a suit to enforce a personal liability of the stockholders for all the debts of the company. So that the only points to be decided are, first, whether the obligation which the complainant sued on is a valid debt of the company; and, second, whether the circumstances exist which, under the pro

Only that part of the opinion relating to acceptance of charter given. 256 Miss. 681.