The theory upon which the rule here stated is based seems to be that State officials in issuing a certificate of due incorporation act under a general statute passed by the legislature, and under the terms thereof become agents as it were thereof for that purpose. It therefore follows that the act of such State officials in certifying as to due incorporation, is in effect the act of the legislature which has the supreme power of creating corporations. So it may be safely said that, according to the best current of authority, where the statute gives the State official authority to issue a certificate of due incorporation, such certificate is evidence thereof against all the world except the State.1

Again it should be noted that in many of the States the statute itself gives certain probative force to the charter so issued, by providing that the certificate of incorporation, or a certified copy thereof, shall be evidence to a certain designated extent and for certain purposes. Thus in Connecticut, Kansas, Minnesota, North Dakota, and Ohio statutes exist providing that a certified copy of the certificate of incorporation shall be prima facie evidence of the legal existence of the corporation. In Colorado, Oklahoma, Oregon, Texas, West Virginia, and Wyoming statutes provide that such certificate shall be evidence of the existence of the company. In California, Colorado, Idaho, Illinois, Louisiana, Montana, Nevada, North Dakota, South Dakota, Oklahoma, Utah, Washington, and Wyoming such a certificate is prima facie evidence of the facts therein stated. In New York the certificate of incorporation of any corporation when duly filed is presumptive evidence of its incorporation. In Arkansas a certified copy of the articles is made prima facie evidence of the due formation and of the existence and capacity of the corporation. In Colorado it is made evidence

1 Petty v. Hayden, 115 Iowa, 212; 88 N. W. 339; Cochran v. Arnold, 58 Pa. St. 399; Litchfield Bank v. Church, 29 Conn. 137; Napier v. Poe, 12 Ga. 170; Carolina Iron Co. v. Abernathey, 94 N. C. 545; Casey v. Galli, 94 U. S. 673; 24 L. E. 168, 307; Lake Sup. Nav. Co. v. Morrison, 22 U. C. C. P. 217; Birds Case, 1 Simon (N. S.), 47; 40 Eng. Ch. 47; In re Barneds Bakery Co., L. R. 2 Ch. 674; O'Brien v. Cummings, 13 Mo. Ap. 197; N. P. C. I. Co. v. Company, 16 Utah, 246; 52 Pac. 168; Holman v. State, 105 Ind. 569; 5 N. E. 702; State v. Carr, 5 N. H. 367;

Jones v. Dana, 24 Barb. 395; Taylor v. Company, 91 Me. 193; 39 Atl. 560; Finch v. Ullman, 105 Mo 255; Saunders v. Farmer, 62 N. H. 572 ; Union Water Co. v. Kean, 52 N. J. Eq. 111; 27 Atl. 1015; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; 38 N. E. 729; W. & P. Ry. Co. v. Company, 114 N. C. 690; 19 S. E. 646; Carroll v. Bank, 19 Wash. 639; 54 Pac. 32; Vermont, etc. Ry. Co. v. Company, 34 Vt. 2; Grubb r. Company, 14 Pa. St. 305; W. P. R. Co. v. Young, 12 Md. 476.

of the existence of the corporation. In Connecticut it is evidence of the legal existence of the corporation, and it is there provided that it shall serve all the purposes of a charter for the corporation. In Delaware it is made evidence in any court of law or equity. In Georgia a certified copy of the petition for incorporation and order granting the same is made evidence of such incorporation in any court. In Kentucky the law provides that it may be used as evidence in any action for or against the corporation. In Maryland it may be used as evidence in all legal proceedings. In Michigan it is prima facie evidence of the due formation, existence, and capacity of such corporation. In Minnesota it is provided that it shall be evidence in all courts of such incorporation. In New Jersey it is evidence in all courts and places. In North Carolina it is prima facie evidence of the organization and incorporation of the company purporting thereby to have been established. In Pennsylvania it is evidence for all purposes. In Rhode Island a certificate must be received in evidence before any court, tribunal, or authority. In Tennessee it is competent evidence in any proceeding. In West Virginia it shall be received as evidence. of the existence of the corporation. In Wyoming it is provided that it shall be evidence of the existence of the company.

Again, in Massachusetts and Indiana the law provides that the certificate of record shall be conclusive evidence of the existence of such corporation. In Wisconsin it must be received as conclusive evidence of the existence of the corporation or of the organization thereof in all cases where such facts are collaterally involved.

Again, in Alabama the certificate of the probate judge states specifically that the incorporators are duly organized as a corporation for the purposes expressed in the declaration, having the power, capacity, and authority conferred by law. In Florida the law provides that "letters patent" shall be conclusive evidence of the existence of the corporation in all actions where the question of the existence is only collaterally involved, and prima facie evidence in all other actions and proceedings. In Indiana the order of the court declaring the existence of a corporation entered "ex parte" is conclusive as to the fact of such existence. In Mississippi the law provides that the powers specified in the charter shall by the approval of the Governor be vested in such corporation, and it shall go into operation at the time and on the terms and conditions specified.

Again, certain statutes exist providing that after certain preliminary steps have been taken as prescribed by statute such incorporators and their successors and assigns shall thereupon become a body politic and corporate for certain specified purposes. These statutes really provide that upon the observance of certain specified preliminary conditions relative to the making and execution of articles of incorporation, the incorporators, their successors and assigns, shall be a body politic and corporate under the name and for the purposes stated in the articles. The foregoing is the statutory provision as it exists to-day in substance in South Dakota, North Dakota, and Oklahoma. In Virginia the law provides that they shall be a body politic and corporate by the name set forth in the said certificate and upon the terms and powers set forth therein, so far as not in conflict with law. In Pennsylvania the law provides that they shall become a corporation upon the purposes and terms named in the charter. In Maryland they are declared to thereby become a body politic and corporate according to the objects, purposes, articles, conditions, and provisions in said instrument contained. In Maine they are declared to be a corporation, with all the rights and powers and subject to all the duties, obligations, and liabilities provided by law.

In Connecticut a copy of the certificate of organization is prima facie evidence that the corporation has been duly organized and is duly authorized to exercise all its corporate powers. In Maine the certificate of the Secretary of State that the corporation has been duly organized is evidence of the corporate existence of the corporation. In South Carolina a certificate is issued by the Secretary of State that the corporation is fully authorized to commence business under its charter for the purposes indicated in the written declaration of the incorporators.

It is not claimed that the statutory provisions here referred to operate so as to preclude entirely collateral attack upon corporate existence, purposes, and powers. The most that is claimed for them where they do not make certain instruments conclusive evidence of corporate existence, purposes, and powers, is that they shift the burden of proof and render the likelihood of collateral attack more remote.1

1 As to meaning of conclusive evidence, see American Order, etc. v. Merritt, 151 Mass. 558; 24 N. E. 918. As to meaning

of prima facie evidence, see Holmes v. Gilliland, 41 Barb. (N. Y.) 569; Knapp, etc. Co. v. Strand, 4 Wash. 686; 30 Pac. 1063;

It has now been fairly demonstrated, it is hoped, that in the majority of the Commonwealths collateral inquiry into corporate existence is either prohibited by statute or else is forbidden by implication, by reason of the issuance of certificates of due incorporation, under proper legislative authority, by State officials. In the few remaining States and Territories the courts have either by a process of judicial legislation or by an extended application of the principle of estoppel, practically made it impossible to successfully attack in collateral proceedings the due existence of a corporation. This on grounds of enlightened public policy.1 The judicial legislation above referred to covers the cases where it is impossible to apply principles of estoppel either on account of the absence of any conduct on the part of parties litigant showing their recognition of the corporation's existence, or else is inapplicable by reason of such parties having never in any way dealt with the corporation or recognized its corporate existence.2

Having now considered at some length the question as to the right to collaterally attack the validity of corporate existence, there naturally follows an inquiry as to the right to attack the validity of corporate purposes and powers when the same are inserted in the articles of incorporation. It would seem to follow, as a logical sequence, that if the rule be once established forbidding collateral attack upon corporate existence, this same rule should operate as well to prevent collateral attack upon corporate purposes and powers. This for the reason that if a corporation. exists at all it must necessarily exist with such purposes and powers as are inserted in the articles of incorporation which called the corporation into being.

As has already been observed, a large number of the States have enacted statutes forbidding collateral attack upon corporate existence. For the reasons already stated, it would appear that these statutes would be equally efficacious for the purpose of prohibiting collateral attack upon corporate purposes and powers.

Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546; Bates v. Wilson, 14 Col. 140; 24 Pac. 99; Wood v. Company, 56 Conn. 87; 13 Atl. 137; Jewell v. Company, 101 Ill. 57.

1 See Casey v. Galli, 94 U. S. 673; Duggan v. Company, 11 Col. 113; 17 Pac. 105; McClinch v. Sturgis, 72 Me. 288; Finch v. Ullman, 105 Mo. 255; 16 S. W.

863; Saunders v. Farmer, 62 N. H. 572; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; 38 N. E. 729; W. & P. Ry. Co. v. Company, 114 N. C. 690; 19 S. E. 646; Reynolds v. Myers, 51 Vt. 444; Carroll v. Bank, 19 Wash. 639; 54 Pac. 32. 2 See Marion Savings Bank v. Dunkin, 54 Ala. 471.

Again, as has already been stated, a large number of the incorporation acts provide that the certificate of incorporation shall be issued by certain designated State officials. Where such certificates are issued under express or even implied authority of the State, the rule unquestionably is that the validity of corporate purposes and powers not per se illegal, inserted in the articles of incorporation, cannot be attacked except by the State in a direct proceeding brought for that purpose.1

If, however, the charter is issued without the express or implied approval of the State officials, their duty being merely to certify to the fact and to mark them when filed as public documents in their respective offices, then the insertion of purposes not authorized by the statute, yet not unlawful per se, would probably not render the charter valid for all purposes even when filed.2

To sum up briefly the propositions herein presented, it may be said that collateral inquiry into the legality of a corporation's existence, purposes, and powers is forbidden in this country, (1) by statutes expressly forbidding such collateral attack; (2) by reason of authority vested in state officials to issue certificates of due incorporation which for the reasons already stated are not open to collateral attack; (3) by reason of statutory provisions giving to certified copies of articles of incorporation certain probative effect; (4) by an extended application of the principle of estoppel forbidding such collateral attacks; (5) by a process of judicial legislation denying on grounds of public policy the right of parties other than the State to attack the legality of corporate existence, purposes, and powers.

There seems to be a

§ 7. Effect of Inserting Illegal Purposes. sound basis in law for permitting collateral attack upon purposes that are illegal per se. This for the reason that a distinction clearly exists between purposes which are merely unauthorized

1 State ex rel. Walker v. Talbot, 123 Mo. 69; 27 S. W. 366; Doty v. Patterson, 155 Ind. 60; 56 N. E. 668; T. A. L. Co. v. Massey (Tenn.), 56 S. W. 35; Allbright v. Association, 102 Pa. St. 411. See also People v. Beach, 19 Hun, 259; N. Orleans, etc. R. R. Co. v. Frank, 39 La. An. 707; 2 So. 310; Holmes v. Gilliland, 41 Barb. N. Y. 569; Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546; C. & P. Co. v. Secretary of State, 128 Mich. 621; 87 N. W. 901; Cochran v. Arnold, 58 Pa. St.

399; Casey v. Galli, 94 U. S. 673; Fortier v. Bank, 112 U. S. 439; 5 S. Ct. 234; Niemeyer v. L. R. J. Ry., 43 Ark. 111.

2 Williams v. Company, 25 Ind. Ap. 351; 57 N. E. 581; Kinston, etc. Co. v. Stroud, 132 N. C. 413; 43 S. E. 913; Ramsey v. Tod, 95 Tex. 614; 69 S. W. 133 ; Or. Ry. & Nav. Co. v. Or. Ry. Co., 130 U. S. 1; 9 S. Ct. 409; State v. Company, 88 Wis. 512; 60 N. W. 796; G. L. H. Ins. Co. v. Kamper, 73 Ala. 325.