Mahony v. Bank of the State

4 Ark. 620

• Court: Supreme Court of Arkansas
• Decided: July 15, 1842
• Status: Published

Opinion

By the Court,

Lacy, J.

The. plaintiffs in error have put in the plea of mil tiel corporation; and the inquiry is, does this plea constitute a valid defence to the action? Admitting the plea to be good in : form, and we take it to be so, it then properly raises the question J whether the Bank of the State be a corporation or not. It is certainly true, that there can be no act of incorporation unless there be corpo-rators. There can be no body without members. The distinguish-\ ing feature of a corporation is that by which a perpetual succession of j a corporate body may be kept up, so that it may act with the will of sJ single person. It is contended that the act, in this case, is a mere abstraction and nonentity, as it simply declares a Bank shall be established, designated byname. It is true that'there are no express words incorporating any particular persons, still, the fund is placed under the management and control of a given number of directory, who are required to be elected by the Legislature, and the usual powers of banking conferred upon them. The act itself is exceedingly vague and ambiguous; it is, nevertheless, capable of being defined and understood; and, taking all its parts together, and considering it as an entire whole, we think no doubt can be entertained, that it was the intention of the Legislature to incorporate the.directory, and that all the affairs of the corporation were put under their government. They are certainly not declared, in express words, to be incorporated, but still, the powers and authorify conferred upon them, in regard to banking, cannot exist, unless they are so incorporated.

No particular form of words or mode of expression is necessary to create a corporation. All the authorities show that a corporation may be established by necessary implication as well as by express grant. ] Here that implication unquestionably arises, or you must abrogate all 1 the powers of the directory which the charter gives them. The whole | act must be construed together, and every part made to stand, if possible. This can be readily done, if the directory are considered as incorporated. Although their powers are mentioned subsequent to the name of the Bank and the amount of capital,' still, they attached at one and the same time with this declaration, and must be made to take precedence of it in order to give life and being to the act of incorporation.

■ The demurrer to the plea was, therefore, rightly sustained.

Judgment affirmed.