Again, certain statutes exist providing that after certain preliminary steps have been taken as prescribed by statute such incorporators and their successors and assigns shall thereupon become a body politic and corporate for certain specified purposes. These statutes really provide that upon the observance of certain specified preliminary conditions relative to the making and execution of articles of incorporation, the incorporators, their successors and assigns, shall be a body politic and corporate under the name and for the purposes stated in the articles. The foregoing is the statutory provision as it exists to-day in substance in South Dakota, North Dakota, and Oklahoma. In Virginia the law provides that they shall be a body politic and corporate by the name set forth in the said certificate and upon the terms and powers set forth therein, so far as not in conflict with law. In Pennsylvania the law provides that they shall become a corporation upon the purposes and terms named in the charter. In Maryland they are declared to thereby become a body politic and corporate according to the objects, purposes, articles, conditions, and provisions in said instrument contained. In Maine they are declared to be a corporation, with all the rights and powers and subject to all the duties, obligations, and liabilities provided by law. In Connecticut a copy of the certificate of organization is prima facie evidence that the corporation has been duly organized and is duly authorized to exercise all its corporate powers. In Maine the certificate of the Secretary of State that the corporation has been duly organized is evidence of the corporate existence of the corporation. In South Carolina a certificate is issued by the Secretary of State that the corporation is fully authorized to commence business under its charter for the purposes indicated in the written declaration of the incorporators. It is not claimed that the statutory provisions here referred to operate so as to preclude entirely collateral attack upon corporate existence, purposes, and powers. The most that is claimed for them where they do not make certain instruments conclusive evidence of corporate existence, purposes, and powers, is that they shift the burden of proof and render the likelihood of collateral attack more remote.1 1 As to meaning of conclusive evidence, see American Order, etc. v. Merritt, 151 Mass. 558; 24 N. E. 918. As to meaning of prima facie evidence, see Holmes v. Gilliland, 41 Barb. (N. Y.) 569; Knapp, etc. Co. v. Strand, 4 Wash. 686; 30 Pac. 1063; It has now been fairly demonstrated, it is hoped, that in the majority of the Commonwealths collateral inquiry into corporate existence is either prohibited by statute or else is forbidden by implication, by reason of the issuance of certificates of due incorporation, under proper legislative authority, by State officials. In the few remaining States and Territories the courts have either by a process of judicial legislation or by an extended application. of the principle of estoppel, practically made it impossible to successfully attack in collateral proceedings the due existence of a corporation. This on grounds of enlightened public policy.1 The judicial legislation above referred to covers the cases where it is impossible to apply principles of estoppel either on account of the absence of any conduct on the part of parties litigant showing their recognition of the corporation's existence, or else is inapplicable by reason of such parties having never in any way dealt with the corporation or recognized its corporate existence.2 Having now considered at some length the question as to the right to collaterally attack the validity of corporate existence, there naturally follows an inquiry as to the right to attack the validity of corporate purposes and powers when the same are inserted in the articles of incorporation. It would seem to follow, as a logical sequence, that if the rule be once established forbidding collateral attack upon corporate existence, this same rule should operate as well to prevent collateral attack upon corporate purposes and powers. This for the reason that if a corporation exists at all it must necessarily exist with such purposes and powers as are inserted in the articles of incorporation which called the corporation into being. As has already been observed, a large number of the States have enacted statutes forbidding collateral attack upon corporate existence. For the reasons already stated, it would appear that these statutes would be equally efficacious for the purpose of prohibiting collateral attack upon corporate Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546; Bates v. Wilson, 14 Col. 140; 24 Pac. 99; Wood v. Company, 56 Conn. 87; 13 Atl. 137; Jewell v. Company, 101 Ill. 57. 1 See Casey v. Galli, 94 U. S. 673; Duggan . Company, 11 Col. 113; 17 Pac. 105; McClinch v. Sturgis, 72 Me. 288; Finch v. Ullman, 105 Mo. 255; 16 S. W. purposes and powers. 863; Saunders v. Farmer, 62 N. H. 572; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; 38 N. E. 729; -W. & P. Ry. Co. v. Company, 114 N. C. 690; 19 S. E. 646; Reynolds v. Myers, 51 Vt. 444; Carroll v. Bank, 19 Wash. 639; 54 Pac. 32. 2 See Marion Savings Bank v. Dunkin, 54 Ala. 471. Again, as has already been stated, a large number of the incorporation acts provide that the certificate of incorporation shall be issued by certain designated State officials. Where such certificates are issued under express or even implied authority of the State, the rule unquestionably is that the validity of corporate purposes and powers not per se illegal, inserted in the articles of incorporation, cannot be attacked except by the State in a direct proceeding brought for that purpose.1 If, however, the charter is issued without the express or implied approval of the State officials, their duty being merely to certify to the fact and to mark them when filed as public documents in their respective offices, then the insertion of purposes not authorized by the statute, yet not unlawful per se, would probably not render the charter valid for all purposes even when filed.2 To sum up briefly the propositions herein presented, it may be said that collateral inquiry into the legality of a corporation's existence, purposes, and powers is forbidden in this country, (1) by statutes expressly forbidding such collateral attack; (2) by reason of authority vested in state officials to issue certificates of due incorporation which for the reasons already stated are not open to collateral attack; (3) by reason of statutory provisions giving to certified copies of articles of incorporation certain probative effect; (4) by an extended application of the principle of estoppel forbidding such collateral attacks; (5) by a process of judicial legislation denying on grounds of public policy the right of parties other than the State to attack the legality of corporate existence, purposes, and powers. § 7. Effect of Inserting Illegal Purposes. There seems to be a sound basis in law for permitting collateral attack upon purposes that are illegal per se. This for the reason that a distinction clearly exists between purposes which are merely unauthorized 1 State er rel. Walker v. Talbot, 123 Mo. 69; 27 S. W. 366; Doty v. Patterson, 155 Ind. 60; 56 N. E. 668; T. A. L. Co. v. Massey (Tenn.), 56 S. W. 35; Allbright v. Association, 102 Pa. St. 411. See also People v. Beach, 19 Hun, 259; N. Orleans, etc. R. R. Co. v. Frank, 39 La. An. 707; 2 So. 310; Holmes v. Gilliland, 41 Barb. N. Y. 569; Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546; C. & P. Co. v. Secretary of State, 128 Mich. 621; 87 N. W. 901; Cochran v. Arnold, 58 Pa. St. 399; Casey v. Galli, 94 U. S. 673; Fortier v. Bank, 112 U. S. 439; 5 S. Ct. 234; Niemeyer v. L. R. J. Ry., 43 Ark. 111. 2 Williams v. Company, 25 Ind. Ap. 351; 57 N. E. 581; Kinston, etc. Co. v. Stroud, 132 N. C. 413; 43 S. E. 913; Ramsey v. Tod, 95 Tex. 614; 69 S. W. 133; Or. Ry. & Nav. Co. v. Or. Ry. Co., 130 U. S. 1; 9 S. Ct. 409; State v. Company, 88 Wis. 512; 60 N. W. 796; G. L. H. Ins. Co. v. Kamper, 73 Ala. 325. by the terms of the general incorporation act, and those purposes which are forbidden by express statute, civil or penal. In the latter case it seems clear that even the approval by a State official of such unlawful purposes as evidenced by the issuance by them of certificates of due incorporation, do not forbid collateral attack thereon in any suit whereby the corporation seeks to benefit by the insertion of such unlawful purposes in its articles.1 The rule might be still further extended so as to apply to purposes which may be lawful in a general way, yet which may be deemed unlawful on account of the limitations inserted in the articles upon the means by which such purposes are to be carried out.2 The same principle would apply where the purposes are clearly contrary to the public policy of the State.3 But if purposes are lawful on their face, they will, as against all but the State, be presumed to be such. Where some of the purposes are merely unauthorized, while others are valid and proper, the insertion of the unauthorized purposes will not vitiate the incorporation. But where any of the purposes are illegal per se, the State officials would be clearly justified in refusing to allow the articles to be filed, though some of them are lawful.6 § 8. Corporate Powers, Classification of. By "corporate powers" is meant the right or authority of a corporation to act along certain lines prescribed for it in the instrument whereby it was created. The tendency of modern decisions is to assimilate the powers of private corporations to those of individuals and copartnerships.7 It is unnecessary to say that a corporation cannot assume for itself powers of action, irrespective of statute, by the mere declaration thereof in its articles of incorporation.8 Neither can they be created by by-law.9 The Supreme Court of the United States 10 has observed that 1 F. N. Bank v. Company, 59 Ohio St. 316; 52 N. E. 834; In re DuQuesne College, 2 Pa. Dist. Ct. Rep. 555; Matter of Agudath Hakehiloth, 18 N. Y. Mis. Rep. 717; 42 N. Y. Sup. 985; State v. Company, 29 Neb. 700; 46 N. W. 155. 2 Or. Ry. & Nav. Co. v. Or. Ry. Co., 130 U. S. 1; 9 S. Ct. 409. 3 Scheutzen Bund v. Agitations Verein, 44 Mich. 313; 6 N. W. 675; McGrew v. C. P. Ex., 85 Tenn. 572; 4 S. W. 38; In re Benefit Society, 10 Phil. 19; People v. Company, 130 Ill. 268; 22 N. E. 798. 4 U. S. Vinegar Co. v. Foehrenbach, 148 N. Y. 58; 42 N. E. 403. 5 Skick v. Company, 15 Ind. Ap. 310; 44 N. E. 48. 6 State v. Company, 88 Wis. 512; 60 N. W. 796. 7 Fink v. Company, 5 Ore. 301. People v. Green, 116 Mich. 505; 74 N. W. 714. 9 Andrews v. Company, 37 Me. 256. 10 Thomas v. Company, 101 U. S. 71. "we take the general doctrine to be that the powers of corporations organized under general statutes are such and such only as are conferred by statute. Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of the corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others." The foregoing is true only as to certain classes of powers which are hereinafter referred to as "express powers." The rule is not applicable either to what are known as "common law papers" or to the "incidental powers" of corporations. Corporate powers may properly be divided into three general classes, to wit: (1) Common Law Powers; (2) Express Powers; (3) Incidental Powers. Generally speaking, there is no existing rule or principle by which corporations created for a certain specific object or to carry on a particular trade or business are to be held to be prohibited from all other dealings or transactions not coming within the exact scope of those designated. Undoubtedly the main business of a corporation is to be confined to that class of operations which properly appertains to the general purposes for which this charter was granted. But it may also enter into contracts and engage in transactions which are incidental or auxiliary to the main business, or which may become necessary or profitable in the care and management of the property which it is authorized to hold. The same is true as to certain powers which are held to exist at common law even in the absence of any specific reference to such powers in the articles of incorporation. § 9. Common Law Powers, Definition of; Enumeration of. Common law powers are those which the law bestows upon corporations irrespective of statute or charter provisions, as being necessary for the carrying out of the purposes for which it was created.1 The common law gives to corporations the powers belonging to corporations of their class, unless there is something in the nature of the corporation or in the terms of its charter, or in the act under which it was incorporated inconsistent with the exercise of the powers, or there is some general statute restricting the same.2 1 Falconer v. Campbell, 8 Fed. Cases, 4620; 2 McLean, 195; C. O. N. G. & F. Co. v. C. D. Co., 60 Ohio, 96; 53 N. E. 711; State v. Company, 144 Mo. 562; 46 S. W. 593; Knowles v. Beatty, 1 McLean, 41; Leg- |