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by the name of the American Tract Society, for the printing and circulating religious publications.
2. The net income of said society, arising from their real and personal estate, shall not exceed the sum of ten thousand dollars annually.
3. This corporation shall possess the general powers and be subject to the provisions contained in title third of chapter eighteen of the first part of the Revised Statutes, so far as the same are applicable and have not been repealed.
By this charter an artificial being was created, a being known to the law as a corporation, a being having a will and capable of exercising that will in reference to the particular object for which it was formed. Previous to their incorporation the members of the society had the right, and had exercised it, to transact the same business, as associated individuals, as after this act was passed, but they found or expected to find advantages from acting in a corporate capacity, and so became subject to the general principles relating to such corporations, and to the statute on the subject referred to in the charter.
Mr. Justice Story, in clear and precise language, thus defines a corporation :
“An aggregate corporation, at common law, is a collection of individuals united into one collective body under a special name, and possessing certain immunities, privileges, and capacities, in its collective character, which do not belong to the natural persons composing it. Among other things it possesses the capacity of perpetual succession, and of acting by the collected vote or will of its component members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises, which, though they must be ex. ercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage." And he defines eleemosynary corporations to be “such as are constituted for the perpetual distribution of the free alms and bounty of the founder in such manner as he has directed."
What under this charter is the character of this corporation? Mr. Lord classes it with eleemosynary corporations. Nothing, however, appears in the charter which can be construed as constituting an eleemosynary corporation, nothing which is inconsistent with pecuniary profit or with common business purposes. There is no intimation that any funds are to be used but the
funds of the corporators, and no individuals desiring corporate powers for the printing and circulating religious works for
pecuniary profit would need any other charter than this. Moreover one of the essentials of an eleemosynary corporation is that there shall be a foundation of a permanent character, so that in the language of Judge Story, "perpetual distribution may be made of the free alms and bounty of the founder, as he has directed,” in whom and his heirs the right of visitation at common law exists. The facts in reference to the American Tract Society will hardly bring it within this definition. In 1847, the legislature of the State of New York caused certain interrogatories to be propounded to the officers of the society, to which they responded under the solemnity of an oath, that they have no permanent vested funds; that the principle of the society has ever been not to hoard funds for future years, but freely to dispense the blessings of the institution to the full extent of the means committed to its management. These answers are verified by the oaths of Theodore Frelinghuysen,Presi. dent, Moses Allen, Treasurer, W. A. Hallock and R.S. Cook, Secretaries, and O. R. Kingsbury, Assistant Secretary and Treasurer. We hesitate then to adopt the principle enunciated by Mr. Lord that this Society is “a charitable foundation” in every sense, and that it is to be governed by the rules relating to such foundations. He himself advances a proposition inconsistent with this principle, when he says, “ as to the donors they give their property to the charity ; it is an entire gift, parting with their right as proprietors. After a thing is given, every man, woman and child knows that the giver can no longer control and direct it. If, therefore, all those who have contributed to make up this fund could be present, they could have no right to interfere with, or change the administration of this fund.” Now Judge Story says, “To all eleemosynary corporations a visitatorial power attaches as a necessary incident; for these corporations being composed of individuals, subject to human infirmities, are liable, as well as private persons, to deviate from the end of their institution. The law, therefore, has provided that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corporations, and to compel the original purposes of the charity to be faithfully fulfilled ; and of common right, the founder and his heirs are the legal visitors.” Then, if this is an eleemosynary corporation, there is power in the donors who founded it to control and direct “this fund,"even after they have "given” it, for such power attaches as a “necessary incident.” If this power does not exist in this Society, then it is not such a corporation as Mr. Lord claims.
When a private eleemosynary corporation is established, the right of visitation, at common law, is in the founder and his heirs. When trustees are incorporated for the purposes of con. trolling a charity, as is done by the charters of Dartinouth College and Yale College, the right of visitation is in the trustees, so incorporated. The error of Mr. Lord is in supposing this corporation to be like the college corporations referred to. In those cases trustees are incorporated for the purpose of controlling a charity ; in this case no charity is alluded to in the charter, no trustees are incorporated by it, and no change is made in the relations of the Society and its officers, under the charter, from what they were before.
We would rather say that the Society is not made a trustee by its act of incorporation, but that by the fact of being incorporated, it is as competent to receive trusts as any other person, and is subject not to the laws regulating charitable foundations, for it has no “foundation”in the technical sense, but to the laws regulating trusts, which are of every day application between man and man. The American Tract Society is a charitable Society, but it will not do to base legal rights on popular language.
We are told by Mr. Lord that “the members of the Society are mere trustees." No man knows better than Mr. Lord, the distinction between a corporation and the individual members of a corporation; the distinction so clearly drawn by Judge Story, as quoted above; and that even if the individual members of a corporation were all trustees for the same person, this would not constitute the corporation a trustee; and so on the other hand, if a corporation is a trustee, this would not make the individual members of the corporation trustees.
We pass now to the constitution of the Society. The corporators have a right by law to make such rules for the transaction of their business as may be necessary and proper, provided they do not violate their charter. The constitution of the Society embodies the rules adopted by the members for their government.
The important Articles, in reference to the question under discussion, are the fourth, fifth, sixth, and tenth. They are as follows:
Art. 4. The Society shall meet annually, on Wednesday, immediately preceding the second Thursday in May, when the proceedings of the foregoing year shall be reported, and a Board consisting of a President, Vice Presidents, Secretaries, a Treasurer, two Auditors, and thirty-six Directors shall be chosen.
Art. 5. The Board of Directors shall annually elect, by ballot, a Publishing, a Distributing, and a Finance Committee, each consisting of not less than three, nor more than six members; the members of which three Committees shall constitute an Executive Committee, to conduct the business of the Society, and shall be, ex officio, members of the Board. The Board shall have power to enact By-laws, and to appoint Honorary Vice Presidents, Directors or members. Twelve members of the Board, present at any meeting regularly convened, shall constitute a quorum for the transaction of business.
Art. 6. To promote in the highest degree the objects of this Society, the Officers and Directors shall be elected from different denominations of Christians; the Publishing Committee shall contain no two members from the same ecclesiastical connection; and no tract shall be published to which any member of that Committee shall object. Art. 10. The President .... may call special meetings of the Board of Di
The Board of Directors shall have power to call special meetings of the Society.
The fair, obvious construction of these Articles is that the Society shall at its annual meeting appoint its officers, who like all officers of every association or corporate body shall be under the control and direction of the appointing power. The idea that the appointment of an agent clothes him with absolute power, which cannot be controlled, and that it is necessary to reserve the right to control in the act of appointment, is a novel one in private associations or corporations.
It is claimed by Mr. Lord that “the only power and function of the members is, at their annual meeting, to nominate and appoint the officers of the institution.” “For this purpose they are to meet; they are to consult, deliberate, and, if VOL. XVII.
they please, debate, as to the past conduct of the officers, who may be presented for reëlection.” “They have no power reserved to control those whom they have elected.”
That these propositions are erroneous is obvious from the tenth Article, which authorizes calling special meetings of the Society. Now, if all the powers and functions of the members are exhausted at the annual meeting of the Society, in the nomination and appointment of officers, why was a provision inserted for calling special meetings? Officers can be elected only at the annual meeting, and according to Mr. Lord, this is all the members can do under their own constitution. What, on this construction, is to be done at a special meeting? Is it merely to meet and adjourn? Why did the Society, having adopted the fourth Article, and by so doing, as is claimed, knowingly divested themselves of their power to act except at an annual meeting, make provision for calling special meetings ?
The fifth Article provides “that the Executive Committee shall conduct the business of the Society.” The Society then has business to be conducted. It may appoint agents to conduct its business. Is the Society without a mind as to the mode of transacting its own business; and having a mind on this subject, has it no right to express it?
Mr. Lord says “The object of the Society is not to declare the principles of its managers or members; not to discuss or settle controversies; not to declare for or against slavery; but to enlighten its beneficiaries by the circulation of tracts." We agree with him that “the object of the Society is not to declare the principles of its managers or members," if a distinction can be drawn between the principles of the individuals composing the Society and the Society itself acting through the medium of its natural members; but if he means to assert that the Society must only print and circulate tracts which contain no opinions, which discuss nothing and settle nothing, he asserts that which is just as absurd as it would be for them to circulate tracts written in a language which those to whom they are to be sent, do not understand. A religious tract, in its very idea, is the expression of an opinion upon some religious subject, and to say that those who are incorporated for the