enable it to act in the way above stated. When once constituted, this legal being created, the powers and faculties that may be conferred are various,-limited or enlarged, at the discretion of the legislature, and will depend upon the nature and object of the institution, which is as competent as a natural person to receive and enjoy them. We may in short, conclude by saying, with the most improved authorities at this day, that the essence of a corporation consists in a capacity: 1. To have a perpetual succession under a special name and in an artificial form; 2. To take and grant property, contract obligations, sue and be sued by its corporate name as an individual; and 3. To receive and enjoy in common, grants of privileges and immunities. We will now endeavor to ascertain with exactness, the powers aad attributes conferred upon these associations by virtue of the statute. The first fourteen sections(1 to 14) prescribed the duties of the comptroller in furnishing notes for circulation, taking the required securities, etc. The 15th provides that any number of persons may associate to establish offices of discount, deposit, and circulation. The 16th, that they shall make and file a certificate, specifying: 1. The name to be used in the business; 2. The place where the business shall be carried on; 3. The amount of capital stock. and number of shares into which divided; 4. The names of the shareholders; 5. The duration of the association. The 18th confers upon the persons thus associating, the most ample powers for carrying on banking operations, together with the right "to exercise such incidental powers as shall be necessary to carry on such business;" also to choose a president, cashier, and such other officers and agents as may be necessary. By the 21st and 22d sections, contracts, notes, bills, etc., shall be signed by the president and cashier; and all suits, actions, etc., are to be brought in the name of and also

against the president for the time being; and not to abate by his death, resignation, or removal, but to be continued in the name of the successor. 24th section: The association may purchase and hold real estate, etc., the conveyance to be made to the president, or such other officer as shall be designated, who may sell and convey the same free from any claim against shareholders. 19th section: The shares of capital stock to be deemed personal property, transferable on the books of the association; and every person becoming a shareholder by such transfer, shall succeed to all the rights and liabilities of the prior holder. 23 section: No shareholder to be personally liable; and the association is not to be dissolved by the death or insanity of any shareholder.

1. Upon a perusal of these provisions, it will appear that the association acquires the power to raise and hold for common use any given amount of capital stock for banking purposes, which, when subscribed, is made personal property, and the several shares transferable the same and with like effect as in case of corporate stock; to assume a common name under which to manage all the affairs of the association; to choose all officers and agents that may be necessary for the purpose, and remove and appoint them at pleasure. It will hence be seen, that although the association may be composed of a number of different persons, holding an interest in the capital stock, its operations are so arranged that they do not appear in conducting its affairs; all are so bound together, so moulded into one, as to constitute but a single body, represented by a common name, or names (the knot of the combination), and in which all the business of the institution is conducted by common agents. In this way it purchases and holds real and personal property, contracts obligations, discounts bills, notes and other evidences of debt, receives deposits, buys gold and silver bullion, bills of exchange, etc.. loans money,

sues and is sued, etc., It is true, some portion of the business is conducted in the assumed name, and some in the name of the president for the time being, but this in no manner changes the character of the body. A corporation may have more than one name; it may have one in which to contract, grant, etc., and another in which to sue and be sued; so it may be known by two different names, and may sue and be sued in either; and the name of the president, his official name or any other will answer every purpose (2 Bacon's Abr. 5; 2 Salk. 451; 2 id. 257; Ld. Raym. 153, 680). The only material circumstance is a name, or names, of some kind, in which all the affairs of the company may be conducted. So much, and no more, is essential to give simplicity and effect to the operation. An artificial being is thus plainly created, capable of receiving all the ample powers and privileges conferred upon the associations, and of managing their diversified concerns in an individual capacity. All business is to be conducted in a common or proper name.

2. This artificial being possesses the powers of perpetual succession. Neither sale or shares, nor death of shareholders affects it, if one should sell his interest or die, the purchaser or representative, by operation of law, immediately takes his place.

Sec. 19. Nor can the insanity of a member work a dissolution. Id, Officers and agents for conducting the business of the association are secure. In case of vacancy, by death or otherwise, the place may at once be filled. Sec. 18. For the entire duration, therefore of the association, and which may be without limit, Sec. 16. sub. 5, the whole body of shareholders, though perpetually shifting, constitute the same uniform, artificial being which is to be engaged through the instrumentality of officers and agents in conducting the business of the concern, and no member is personlly liable.

Sec. 23. Then, as to the powers conferred, without again specially recurring to them, it will be seen at once that the associations possess all that are deemed essential according to the most approved authorities, to constitute a corporate body. They have a capacity: 1. To have perpetual succession under a common name and in an artificial form; 2. To take and grant property, contract obligations, to sue and be sued by its corporate name in the same manner as an individual; 3. To receive grants of privileges and immunities, and to enjoy them in common. All these are expressly granted, and many more, besides the general sweeping clause, "to exercise such incidental powers as shall be necessary to carry on such business" (meaning the business of banking), under which even the seal and right to make by laws are clearly embraced, if essential in conducting the affairs of the institution. x x x x

Upon the whole, I am of the opinion, 1. That these associations or corporations; 2. That the legislature possesses no power to pass a general law like the one under consideration, by a majority bill; and 3. That they may pass it by two thirds of the members elected.

The plaintiff is, therefore, entitled to judgment on the demurrer. with leave to amend on the usual terms. (1)

(1.) Some of the framers of the Constitution of the United States desired to confer on Congress the express power to create corporations. See Mad. Papers 1354, 1576. But the power exists as an Incidental one. See McCulloch vs. Maryland, 4 Wheat. 316; Cherokee Nation vs. Kansas Ry., 135 U. S. 641. The power to create corporations was left with the states. And here we may observe that much of the clamor being made against the Oklahoma Constitution as to provisions in restraint of corporate power are unfounded, if made on the ground of

the provisions being new and extremely radical.-Listen to the Constitution of Ohio: "No special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed." Constit. of Ohio Art. 1. Sec. 1.; and see also Art. 13, Sec. 2.

Error from District Court of Noble County.

Bayard T. Hainer, Trial Judge.

Reversed and Remanded.

1. A common council of a city of the first class is vested with power by ordinance to vacate streets and alleys whenever in the judgment of the council the same may be necessary or expedient.

2. Whenever any street is vacated by the common council, the land embraced in said streets at once attaches itself in the nature of an accretion to the adjacent real estate in proportion to frontage, and becomes private property, and cannot be taken for railway or other public purposes without just compensation being made to the owner therefore.

3. Where a railroad company, after an ordinance has been passed vacating a street in a city, enters upon