A quasi public corporation describes one which is organized under the statutes providing for the creation of private corporations, and therefore is to be treated as such at all times, save only with regard to its public franchise and functions, such as the power of eminent domain or the duty of common carrier. To this class belong railways, elevators, canals, and the numerous public-service corporations of our cities.38 The municipal corporation is the only representative of the strict and complete public corporation; it is represented in our cities, boroughs, towns, and villages, whether incorporated under general or special laws.

LEGISLATIVE SANCTION.

6. The creation of a public corporation in America is an act of sovereign legislative power.

This results from the very nature of the corporation, its object and functions. It is an agency of government; it may exercise the sovereign power of eminent domain; or it may be a monopoly. Neither of these powers can emanate from any source except the sovereign. In the United States that sovereign may be either the federal government or a state.39

Garrett, 62 Tex. 602; Riddle v. Proprietors, 7 Mass. 187, 5 Am. Dec. 35; Adams v. Bank, 1 Me. 363, 10 Am. Dec. 88; Town of North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 689; Commonwealth v. Green, 4 Whart. (Pa.) 531, 598; Cole v. Fire Engine Co., 12 R. I. 202; Polk v. Plummer, 2 Humph. (Tenn.) 500, 37 Am. Dec. 566; Levy Court v. Coroner, 2 Wall. (U. S.) 501, 17 L. Ed. 851.

87 MUNN v. ILLINOIS, 94 U. S. 113, 126, 24 L. Ed. 77; RAILROAD COMMISSION CASES, 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; CHICAGO, B. & Q. R. CO. v. IOWA, 94 U. S. 155, 164, 24 L. Ed. 94; State v. Gas Co., 37 Ohio St. 45.

38 Clark, Priv. Corp. §§ 10, 11, p. 30; Thomp. Priv. Corp. § 27; Head v. University, 47 Mo. 220; Directors for Leveeing Wabash River v. Houston, 71 Ill. 318; Tinsman v. Railroad Co., 26 N. J. Law (2 Dutch.) 148, 69 Am. Dec. 565.

39 Tied. Mun. Corp. § 22; Smith, Mun. Corp. §§ 33, 34; Thomp.

40

We are accustomed to speak of each of these sovereign powers as "the State"; i. e., the representative of the sovereign will of the people. Since, therefore, the public corporation is one which is clothed with power to exercise attributes of sovereignty, it is obvious that such power must come from a sovereign; and hence it is a canon of corporation law that only the State can create a public corporation.11

Creation by the Legislature.

Equally certain is it that this power to create corporations belongs to the legislature of the state. In our complex American system, the powers of government are distributed among the three co-ordinate departments, legislative, executive, and judicial; and their respective functions are well defined.42 The creation of a corporation is not a judicial nor an executive act, but an act of legislation. It requires the enactment of a law whereby alone the powers, privileges, and franchises of a corporation can be granted.43 It is therefore the function of the legislature, the lawmaking power, to create a public corporation and give it authority among men.

Priv. Corp. § 35; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637; Deitz v. Central, 1 Colo. 332.

40 We have inherited the term from our English ancestors, who use it in contradistinction to the "church," to express the sovereign temporal power. But in America we have no need for this particular distinction; we use the term both in technical and popular speech to express our idea of the sovereign power of the government, whether federal or state.

41 Tied. Mun. Corp. § 22; Elliott, Mun. Corp. § 2; Smith, Mun. Corp. § 33; Town of New Boston v. Dunbarton, 12 N. H. 409; 1 Dill. Mun. Corp. § 37.

42 Cooley, Const. Lim. (6th Ed.) pp. 46, 47. See, also, Const. U. S. arts. 1, 2, 3, where the powers of the various departments of government are explicitly declared.

1 Dill. Mun. Corp. § 37.

43 Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; City of Memphis v. Water Co., 5 Heisk. (Tenn.) 529; Franklin Bridge Co. v. Wood, 14 Ga. 80; Mayor of Mobile v. Moog, 53 Ala. 561; McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215; Atkinson v. Rail

Legislative Authority-How Expressed.

This authority is usually conferred by a special act creating the corporation, and declaring its purpose, powers, rights, and functions; or it may be a general act of the legislature authorizing the creation of municipal corporations by an association of individuals on their compliance with certain forms, requisites, and conditions precedent. Under the latter method, the charter usually consists of an instrument signed by the corporators, in which is declared their purpose to become a corporation under the provisions of the general law for the specified purpose, and with certain expressed rights, powers, and franchises under the law. Under general incorporation acts, a public election by the persons residing in the proposed corporate boundaries is usually required antecedent to the formation of the corporation. Under special acts, popular consent is rarely required, unless demanded by the Constitution.

Prescription.

In England many municipal corporations exist without original charter. This is noticeably true of the great corporation of London, whose existence antedates the Norman Conquest; but its corporate character has been repeatedly recognized in royal charters or grants of power and in acts of Parliament, and thus it exists under authority from the State.** Corpora

road Co., 15 Ohio St. 21. There is no limitation upon this power of the Legislature, except it be provided by Constitution. Jameson v. People, 16 Ill. 257, 63 Am. Dec. 304; Chandler v. Douglass, 8 Blackf. (Ind.) 10, 44 Am. Dec. 732.

44 On the continent of Europe cities and towns were first erected into corporate communities and endowed with many valuable franchises in the eleventh century. The consent of the feudal sovereign was absolutely necessary to their creation, inasmuch as many of his prerogatives and revenues were thereby considerably diminished. And so in England, Blackstone tells us, the King's consent, either impliedly or expressly given, is absolutely necessary to the erection of any corporation. 1 B. Comm. p. *472. The methods by which this consent was expressly given were by act of Parliament or by charter. Where the corporation existed by prescription, as in the

tions like this are often called "corporations by prescription," since they have exercised their franchises and existed as corporations "time whereof the memory of man runneth not to the contrary."

Origin.

Corporations existed in Greece and Rome fully six hundred years before the Christian Era. With the advance of civilization they were introduced into Gaul and Britain, and elsewhere throughout Europe, and have been used in Western Europe during the twenty-five intervening centuries. Curious as the question may be, it is not profitable for us to discuss whether the corporation had its origin in Rome or Greece. We may well leave that to the contention of the Romanists and the Hellenists. The Greek state we know to have been little more than a city, with surrounding territory attached, owned by the citizens and cultivated by their slaves. The Empire of Rome was not a state, but a gigantic municipality governing the world, and leaving its impress upon all modern life and institutions.45

case of the City of London, the consent of the King was conclusively presumed. The royal assent is formally expressed in every act of Parliament. All the earlier acts of Parliament incorporating towns and cities recognized the previous existence of the corporation, and simply confirmed to them existing privileges and franchises; thereby recognizing the previous royal grant either by prescription or charter. But in England, the King's authority to delegate this power was not questioned, and so the great lords, under the Norman, Angevin, Plantagenet, and Tudor Kings, exercised this power and granted charters of incorporation. This power was also exercised by the spiritual lords, and until a comparatively recent date the city of Durham has existed under an episcopal charter granted by the Lord Bishop of Durham.

45 We may frankly acknowledge our indebtedness to both Greece and Rome for devising municipalities for the government of urban population. But the mission of Greece was to give art to the world, while Rome contributed law and order. Private modern corporations may therefore best look for their antitype to the Roman Collegia, and modern municipalities will find their prototype in the city of

ING.CORP.-2

These three classes of public corporations-municipal, quasi corporations, and quasi public corporations-having many elements in common, have yet. so many features of distinction that they can be more satisfactorily and instructively treated under separate heads, whereby the student may be made acquainted with those doctrines which are recognized and enforced in cases, first, of quasi corporations; second, of municipal corporations; and, last, of quasi public corporations.

Rome. She not only conquered the world with her arms, but she impressed upon it the dominant features of her civilization, and especially of her law. The corpus juris civilis has ruled continental Europe for a thousand years, and each century of that period has witnessed its gradual encroachment upon the common law of England; and, while the institutions of a country are usually the product of the genius of the people, we cannot, as "the heirs of all the ages," deny this inheritance from Rome.