of the petition, and no order was made. But upon principle it would seem there could be no difference between the cases named specifically in the statute for repayment of the money, that of withdrawal of the petition, and such as denial of the petition or refusal to allow the party to proceed. See Dartmouth & Torbay Railw. Co., in re 9 Weekly Rep. 609 V. C. K. It is no objection that the requisite parliamentary deposit is made from borrowed funds. Scott v. Oakely, 10 Jur. N. S. 431, 648. And a court of equity will enforce any agreement made with the lender to compel the repayment of such deposit, ib. But an agreement by an existing railway to contribute towards the deposit required to promote the grant of other lines, is held ultra vires. So also is an agreement by an existing railway to take shares in the projected company, or to establish traffic regulations with reference to future extensions. But such an agreement will not be ultra vires where its validity is expressly made dependent upon the sanction of parliament. Maunsell v. M. Great Western (Ireland) Railw. Co., 1 H. & M. 130; s. c. 9 Jur. N. S. 660. See Scottish N. E. Railw. v. Stewart, 3 Macq. H. L. Cas. 382. But where the company stipulate to do acts ultra vires, there is no implication that this stipulation shall be held conditional upon the company having or being able to obtain legislative authority to do them. And if the acts so stipulated to be done are component parts of an entire agreement embracing other matters within the powers of the company, an injunction will be granted against carrying any portion of the agreement into effect. Hattersley v. Shelburne (Earl), 7 Law T. N. S. 650. Where six different lines of railway, forming one general scheme, were promoted by the same persons, but subsequently four of them abandoned, and an act obtained authorizing the construction of the other two, by which it was provided that the expenses, costs, and charges of obtaining and passing the act, and incidental and preparatory thereto, should be paid by the incorporated company; it was held the costs and expenses connected with the abandoned lines were properly chargeable on the company. Tilleard, in re 9 Jur. N. S. 1217. * CHAPTER III. RAILWAYS AS CORPORATIONS. *SECTION I. Origin and Different Classes of Corporations. 1. The existence of corporations dates very | 6. Corporations are public or private. § 17. 1. The idea of corporate action, i. e. by means of mere legal entities, or creations of the law, seems to have existed from a very early day in the history of civilization. They seem to have been allowed by the laws of Solon, and by those of the Twelve Tables; and may very probably have existed at a still earlier period.1 2. There have existed various kinds of corporations, distinguished sometimes by the form of the association or the nature of the organization, and sometimes by the character of the work to which the corporate body was devoted. Thus corporations, in the English law, are either sole or aggregate. By the former is understood corporations existing in a single individual, as the rector of a church, or the judge of a particular court, as the judge of probate in whose name securities are taken and to be prosecuted, or any other official name, as the treasurer of a town, county, &c., in all which cases the single individual, maintain 1 1 Kent, Comm. 524, 8th Table, allowed societies or private companies to make their own by-laws, not being inconsistent with the public law. See also 2 Kent, Comm. 268, note; Dig. Rom. Civ. Law, 47, 22, 4. 1 ing for the time the particular official relation, constitutes the quasi corporation. Aggregate corporations are when the body consists of more than one member, whether such members are shareholders, as in the case of a mere business corporation, or are composed of different subdivisions of the entire corporation; as the mayor, aldermen, and common council of a city or other municipality.2 3. The corporations with which we are chiefly concerned, and which will be mainly considered in the following work, are aggregate business corporations, with a joint-stock capital, such as banks, railways, manufacturing and other similar organizations. 4. But, as almost all kinds of corporations have in some sense analogous powers and functions, it will not be practicable to discuss the law applicable to one class without at the same time to some extent considering the law applicable to all other classes of corporations. It may be proper therefore to mention here, that aggregate corporations may be ecclesiastical or lay, i. e. their functions may have reference exclusively to religious matters, as a parish or church, whereby they are appropriately designated, as ecclesiastical or religious bodies; or they may have reference only to secular matters, whereby they are more appropriately denominated lay corporations. The distinction is however sometimes not easily determined, since the business and functions of a corporation may approach so nearly the one or the other as not inappropriately to be classed among either. Thus 2 Co. Litt. 8 b, 250 a; 2 Kent, Comm. 273, 274. We have taken no time to discuss the nature or importance of sole corporations, since very few exist in the American states, and where any such do exist, it is so enacted by express statute, in order to secure perpetual succession and transmission of rights and duties, without encumbering the succession and transmission with those formalities, which would always prove laborious and sometimes difficult; and by reason thereof, there would constantly arise embarrassing questions, which, by declaring the office a perpetual corporation, is wisely saved. In many of the cases already alluded to, and others which might be named, as to those individuals who sustain the official character of sole corporations, it is not deemed important that the statute conferring such functions should declare them corporations, or to possess corporate rights and duties. All that is required is, that it should be provided that contracts made to them may be sued in the name of their official successors, or that in any other form such individual should be declared by his official name to have the power to contract for the benefit of himself and his successors perpetually. the English Universities of Oxford and Cambridge are now regarded as merely lay or civil corporations, although at one time. they were, with propriety, classed among ecclesiastical corporations.3 5. Corporations, too, are divided into eleemosynary, or such as disburse only charity and subsist for that purpose only, such as schools, colleges, and hospitals, and those which are mere civil or political bodies intrusted with certain rights or duties, and required to perform certain functions, more or less connected with the polity of the state or nation, such as towns, counties, school districts, or railways, banks, and manufacturing, or merely business corporations. 6. Corporations are either public or private. Public corporations embrace all the municipal subdivisions of the state; such as counties, towns and cities, and school districts, and other similar organizations. Private corporations include all aggregate, joint-stock, incorporated companies, whose capital stock is owned by private persons. But such joint-stock corporations as possess no shares not owned by the state or nation are also regarded as public corporations, the same as the municipalities of the state. The law in regard to railways was thus stated in the former edition of this work. 7. Railways in this country, although common carriers of freight and passengers, and in some sense regarded as public works, are ordinarily private corporations. By private corporations nothing more is implied, than that the stock is owned by private persons. 8. If the stock is owned exclusively by the state, the corporation is a public one. And such public corporations are under the control of the legislature, the same as municipal corporations, and ordinarily acquire no such vested rights of property as are Angell & Ames, § 40; 1 Bl. Comm471. 3 There is no necessity for these public functions being confined to aggregate corporations, as is the universal practice in this country. The same franchises and immunities might be conferred upon any private person, at the election of the legislature, as was done by the legislature of New York upon Fulton and Livingston, in regard to steamboat navigation, which grant was held valid but for the United States Constitution. And whoever was the grantee, the same rights, duties, and liabilities would result from the grant, whether to a natural person or to a corporation. Ante, § 1, pl. 6. 6 beyond the control of legislative authority. The American cases going to confirm this proposition, and to show that railways are private corporations, are numerous.7 " Dartmouth College v. Woodward, 4 Wheaton, 518, 668; 2 Kent, Comm. 7th ed. (275) 305 and notes. If the question were entirely new, it might be regarded as admitting of some doubt, perhaps, how far the American states could with propriety undertake such extensive public works, whose benefit enures almost exclusively to private emolument and advantage. But the practice is now pretty firmly established. And there seems to be no proper tribunal to determine such questions between the states and the citizens. Public opinion is the only practical arbiter in such cases. And that is so much under the control of interested parties, ordinarily, that its admonitions are not likely to be much dreaded by those who exercise the state patronage. Donnaher v. State of Mississippi, 8 Smedes & M. 649, 661. By the court, in Trustees of the Presbyt. Society of Waterloo v. Auburn & Rochester Railw., 3 Hill, 570; Dartmouth Coll. v. Woodward, 1 New H. R. 111, 116; Eustis v. Parker, 1 New H. R. 273; Dearborn v. Boston, C. & Montreal Railw. Co., 4 Foster, 179, 190; Ohio, &c. Railroad Co. v. Ridge, 5 Blackf. 78; Bonaparte v. Camden & Amboy R., 1 Baldwin's C. C. 205, 222; Rundle v. Delaware & Raritan Canal Co., 1 Wallace, Jr. 275; R. & G. R. v. Davis, 2 Dev. & Batt. 451; Thorpe v. R. & B. R. 27 Vt. R. 140. This last case discusses at some length the right of legislative control over private corporations, whose functions are essentially public, like those of banks and railways. The importance of such control, within reasonable limits and under proper restrictions, both to the public interest and that of these corporations, will be obvious when we consider the magnitude of the interests committed to such corporations, and the vast amount of capital invested in such enterprises. We make no account of the banking capital of the country, most of which is occupied in business more or less connected with railway traffic. But the capital and business of railways is almost incalculable. The length of railway in the United Kingdom of Great Britain and Ireland in 1857, was 8,635 miles, and the cost, in round numbers, £311,000,000 sterling, being more than one and one half billion of dollars. The amount invested in this country was about half as much in 1851, and the number of miles in operation nearly twice as great, and almost as much more then in progress, a large portion of which is now complete (1857). When it is considered that these private corporations, possessing such vast capital, have engrossed almost the entire travel. and traffic of the country, and that their powers and functions come in daily contact with the material interests of almost every citizen of this great empire, the importance of their being subjected to a wise and just supervision can scarcely be overestimated. This can only be permanently secured by wise and prudent legislation. And to be of much security to public interests, it must be by general acts, as it is in many of the states, and in England, since 1845. It is worthy of remark, we think, that while in the United states a large proportion of the capital invested in railways has proved hitherto wholly unproductive, and much of it has already proved a hopeless loss, and a very small proportion of the whole |