But where the attempt at incorporation is under a general law, and there is a non-compliance with the enabling act in a material respect, there is such want of incorporation that exemption from individual liability is not secured. There is herein a broad and obvious distinction between such acts as are declared to be necessary steps in the process of incorporation, and such as are required of the individuals seeking to become incorporated, but which are not made prerequisite to the assumption of corporate powers. In respect to the former, any material omission will be fatal to the existence of the corporation, and may be taken advantage of collaterally in any form in which the fact of incorporation can properly be called in question.2 A distinction is also drawn between cases where a corporation is created by a special charter, and there have been acts of user, and where individuals seek to form themselves into a corporation under a general law. In the latter case it is only in pursuance of the provisions of the enabling act that corporate existence can be acquired. And there should seem to be a distinction between a case where the plea of nul tiel corporation is set up, in a suit between a corporation and a stockholder or other individuals, to defeat an alleged liability, and the case of a suit against individuals who claim exemption from individual liability on the ground of having become a corporation under the provisions of a gen

1 Kaiser v. Lawrence Savings Bank, (1882) 56 Iowa, 104; s. c. 41 Am. Rep. 85, 86. This was an action against one of the proprietors of a savings bank to recover money deposited therein. The defense was that the bank was a corporation, and that it was sufficient in order to establish the corporate existence of the bank as against the plaintiff merely to show authority to create a corporation, a bona fide attempt on the part of the corporators to become incorporated, and the doing of business as a corporation; and in support of this position the defend. ant cited Buffalo & A. R. Co. v. Cary, 26 N. Y. 77; Kurtz v. Paola Town

Co., 20 Kan. 403; and Pape v. Capital Bank, 20 Kan. 440; s. c. 27 Am. Rep. 183. But the court distinguished these cases on the ground that in them the defendants had set up the want of incorporation of the plaintiffs, thereby seeking to escape liability, while "in the case at bar the defendant sets up exemption, averring that the attempt to become incorporated and the doing of business under a claim of incorporation were sufficient to create the exemption." Kaiser v. Lawrence Savings Bank, (1882) 56 Iowa, 104; s. c. 41 Am. Rep. 85, 86.

2 Mockelumne Hill Mining Co. v. Woodbury, 14 Cal. 424.

eral statute. In the latter case a stricter measure of compliance with statutory provisions will be required than in the former. And it is immaterial that the persons attempting incorporation have acted in good faith and have actually carried on business under their supposed authority to act as a body corporate. A corporation defectively organized can pass no title to property held by it as its own; the title is in the shareholders, and all must join in the deed in order to render the conveyance complete. A defective incorporation may, however, be cured by subsequent legislative recognition of the organization as a body corporate. Thus, a requirement for the formation of a private corporation that an application be filed with the Secretary of State and acknowledged before a proper officer, may be waived by a subsequent statute recognizing the existence of a corporation organized without compliance with that requirement. And neither the company

1 Bigelow v. Gregory, 73 Ill. 197; Kaiser v. Lawrence Savings Bank, (1882) 56 Iowa, 104, s. c. 41 Am. Rep. 85, 87; Abbott v. Omaha Smelting Co., 4 Neb. 416; Harris v. McGregor, 29 Cal. 125.

? Kaiser v. Lawrence Savings Bank, 56 Iowa, 104, S. C. 41 Am. Rep. 85. But see McClinch v. Sturgis, (1882) 72 Me. 288, where it was held that the organization of a corporation is not defective because a notice of the first meeting is not served upon each corporator in accordance with the law of the State, when it appears that the powers conferred by the charter have been assumed by the persons by whom it was intended that they should be enjoyed.

whose attempted incorporation under prior statutes had been unauthorized and ineffectual; and a majority of the directors of such an association having performed the acts prescribed in that statute, for the purpose of effecting a re-incorporation, and the association having thereafter acted as a corporation, it will be presumed, upon proceedings of quo warranto on the part of the State to test the question of a corporate existence, that the action of the directors was authorized by the other members of the association. State v. Steele, (1887) 37 Minn. 428. One who signs articles of association which are intended to be final, but which are in fact defective, does not

3 Hincks v. Converse, (1886) 37 La. by his signature empower subscribAnn. 484.

ers at a meeting held under the articles, to bind him by new articles made because of the defect in the earlier ones. Richmond Street R. Co. v. Reed, (1883) 83 Ind. 9. A church charter will be approved only after it is amended to conform to the provisions of Pa. Act of April 26, 1855. In re Reformed Episcopal

itself,1 nor one who has dealt with it as a corporation, will be heard to deny the regularity of its organization.❜

CHAPTER II.

OF THE CORPORATE CHARTER.

§ 17. The Dartmouth College case. 18. Extension of the doctrine of the Dartmouth College case. 19. Criticism of the doctrine of the Dartmouth College case. 20. Meaning of the word "law." 21. Of the distinction between a franchise and a license.

22. The contract of the State with the incorporators.

23. The contract between the incorporators themselves.

24. The contract between the incorporators and third parties.

25. Of the construction of the charter contract.

26. The same subject continued.

§ 17. The Dartmouth College case. The case of Dartmouth College v. Woodward,' decided in 1819, Chief Justice Marshall rendering the decision of the court, contains one of the fullest and most elaborate expositions of the constitutional sanctity of vested corporate rights to be found in any of the law reports. The matters in controversy in that case were five times the subject of litigation in the several State and federal courts.2 In the State court it was held that the trustees

14 Wheat. 516, reversing s. c. 1 N. mandate was to attach the defendH. 111.

ant's goods to the value of $50,000, or to arrest his body. The writ was dated February 8, 1817, and served on February 10, 1817, by attaching a chair' valued at one dollar. The case was entered at the February term, 1817. By consent the cause was entered in the Superior Courtthe highest court in the State-at the May term, 1817. This case is re

of Dartmouth College, having no private interest in the administration of the funds committed to their charge, but holding them merely as trustees for a public charity, were not a private but a public corporation, and that as such their charter was subject to amendment at the discretion of the legislature without their concurrence or assent. The sanctity of charters granted to private corporations and their inviolability under the prohibition in the federal constitution against the passage of laws impairing the obligations of contracts, was fully admitted by the State tribunal. The one material issue,