though a "person" in law, is but an artificial person, and therefore not of the class to which the person slain belongs. * * * While the tendency of the later cases is to extend the doctrine of corporate civil liability for torts involving personal violence to criminal prosecutions, in most states in which that has been done, the indictments provided for are designed mainly to furnish a civil remedy in favor of the estate of the deceased, although in the form of a criminal action; therefore the decisions in those states are of little importance in determining the question before us. Manifestly, a corporation cannot be indicted for a form of homicide, the only punishment for which is death or imprisonment; for, being an intangible thing, it cannot be subject to such penalties. But, as intimated by the learned commentator in a footnote to People v. Rochester R. & L. Co., 195 N. Y. 102, 88 N. E. 22, 21 L. R. A. (N. S.) 908, 133 Am. St. Rep. 770, 16 Ann. Cas. 837, as to the lesser degrees, at least those not involving actual intent, for which the penalty prescribed may be a fine, it would seem that an indictment might be made to lie, if authorized by a statute including corporations. It is patent, however, that we have no such statute in this state; and the statute which provides that the word "person" may include a corporation makes of the corporation only an artificial person, incapable, without a legislative enactment to that effect, of committing a crime which the common law declares to be involuntary manslaughter. In our view of the law the circuit court ruled correctly in sustaining the demurrer. Wherefore the judgment is affirmed. SECTION 2.-WHEN CORPORATE ENTITY MAY BE DISREGARDED PEOPLE v. NORTH RIVER SUGAR REFINING CO. (Court of Appeals of New York, 1890. 121 N. Y. 582, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843.) Action in the nature of a quo warranto brought by the people of the state of New York for the forfeiture of defendant's corporate franchises, and for its dissolution. From a judgment affirming a decree for its dissolution defendant appeals. FINCH, J. The judgment sought against the defendant is one of corporate death. The state, which created, asks us to destroy, and the penalty invoked represents the extreme rigor of the law. * * * Two questions, therefore, open before us: First, has the defendant corporation exceeded or abused its powers? and, second, does that excess or abuse threaten or harm the public welfare? The first question requires us to ascertain what the defendant corporation has done in violation of its duty, or omitted to do in performance of its duty. We find disclosed by the proof that it has become an integral part and constituent element of a combination which possesses over it an absolute control, which has absorbed most of its corporate functions, and dictates the extent and manner and terms of its entire business activity. Into that combination, which drew into its control 16 other corporations engaged in the refining of sugar, the defendant has gone, in some manner and by some process, for as an unquestiona ble truth we find it there. All its stock has been transferred to the central association of 11 individuals denominated a "board." In exchange it has taken and distributed to its own stockholders certificates of the board, carrying a proportionate interest in what it describes as its capital stock. * * * * But that truth does not alone solve the problem presented. We are yet to ascertain whether the corporation became the subordinate and servant of the board by its own voluntary action, or the will and power of others than itself; by force of a contract to which it was in reality a party, or as the simple consequence of a change of owners; by its fault or its misfortune; by a sale or by a trust. For if it has done nothing—if what has happened and all that has happened is ascertained to be that the stockholders of the defendant, one or many, sold absolutely to the 11 men who constituted the board their entire stock, and the latter, by force of their proprietorship and as owners, have merely chosen directors in their own interest, and are only managing their property in their own way as any absolute owners may-if that is the truth, and the entire and exact truth, it is difficult to see wherein the corporation has sinned, or what it has done beyond merely omitting for a time to carry on its business. That is the theory upon which the appellants stand, and which they submit to our examination. * * The combination, therefore, framed by the deed was a trust; and, if created by the corporations, or in any respect the consequence or product of their action, some inevitable results would be certain to follow. But here we encounter the stronghold of the appellant's argument, which is that, if the corporations are in some manner in the combination, they are there solely as the result of a contract other than their own; are there without corporate action on their part; and so are sufferers, and not sinners. The reasoning leading to that result is so severely technical as to have suggested a justification almost reminding one of an apology. We are called upon to sever the corporation, the abstract legal entity, from the living and acting corporators; as it were, to separate in our thought the soul from the body, and, admitting the sins of the latter, to adjudge that the former remains pure. And yet it is argued that the corporation, the legal entity, has done nothing. * I think there may be actual corporate conduct which is not formal corporate action; and where that conduct is directed or produced by the whole body both of officers and stockholders, by every living instrumentality which can possess and wield the corporate franchise, that conduct is of a corporate character, and, if illegal and injurious, may deserve and receive the penalty of dissolution. * * * * The abstract idea of a corporation, the legal entity, the impalpable and intangible creation of human thought, is itself a fiction, and has been appropriately described as a figure of speech. It serves very well to designate in our minds the collective action and agency of many individuals as permitted by the law; and the substantial inquiry always is what, in a given case, has been that collective action, and agency. As between the corporation and those with whom it deals, the manner of its exercise usually is material, but, as between it and the state, the substantial inquiry is only what that collective action and agency has done; what it has in fact accomplished; what is seen to be its effective work; what has been its conduct. It ought not to be otherwise. The state gave the franchise, the charter, not to the impalpa ble, intangible, and almost nebulous fiction of our thought, but to the corporators, the individuals, the acting and living men, to be used by them, to rebound to their benefit, to strengthen their hands, and add energy to their capital. If it is taken away, it is taken from them as individuals and corporators, and the legal fiction disappears. The benefit is theirs, the punishment is theirs, and both must attend and depend upon their conduct; and when they all act, collectively, as an aggregate body, without the least exception, and so acting reach results and accomplish purposes clearly corporate in their character, and affecting the vitality, the independence, the utility, of the corporation itself, we cannot hesitate to conclude that there has been corporate conduct which the state may review, and not be defeated by the assumed innocence of a convenient fiction. * * And so we have reached our conclusion, and it appears to us to have been established that the defendant corporation has violated its charter, and failed in the performance of its corporate duties, and that in respects so material and important as to justify a judgment of dissolution. Having reached that result, it becomes needless to advance into the wider discussion over monopolies and competition and restraint of trade, and the problems of political economy. Our duty is to leave them until some proper emergency compels their consideration. Without either approval or disapproval of the views expressed upon that branch of the case by the courts below, we are enabled to decide that in this state there can be no partnerships of separate and independent corporations, whether directly or indirectly, through the medium of a trust; no substantial consolidations which avoid and disregard the statutory permissions and restraints; but that manufacturing corporations must be and remain several as they were created, or become one under the statute. The judgment appealed from should be affirmed, with costs. * DONOVAN v. PURTELL. (Supreme Court of Illinois, 1905. 216 Ill. 629, 75 N. E. 334, 1 L. R. A. [N. S.] 176.) Action by Julia Purtell against Joseph T. Donovan. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. This is an action in assumpsit, begun by appellee against appellant on November 24, 1903, by attachment in the circuit court of St. Clair County. A bill of particulars was filed, which, besides the items for money loaned and due in 1901, contains items for money lent by appellee to appellant in the name of the Fidelity Realty Company in 1901, and for money lent to appellant by appellee and promised to be paid by him in the name of the J. T. Donovan Real Estate Company in 1901. The general issue was filed to the declaration. A trial was had before the court and jury, resulting in a verdict in favor of appellee against appellant for the sum of $1,430, from which the plaintiff remitted the sum of $71.80, making the amount of the verdict $1,358.20, which remittitur was approved by the court. Motion for new trial was overruled, and judgment rendered on the verdict in favor of appellee against appellant for $1,358.20 and costs. MAGRUDER, J. * * The salient facts of this case are that the appellee had a note and trust deed for $1,200 against a man named Hayden; that they became due in January, 1901, and she took them to the office of the appellant,, with directions to him, or to his son in the same office with him, to collect them for her and reinvest the money; that the money was collected by appellant, or some one of his sons in the office with him, either in his own name or in the name of one of the corporations doing business in his office, and which he controlled and managed. The evidence tends to show that the $1,200 belonging to appellee went into appellant's hands, or into the hands of some one or more of his sons or clerks. Appellee's money, therefore, was had and received by the appellant. Appellant turned over to Miss Slaterly, appellee's agent and friend acting for her while she was out of the city, a note for $1,200, payable in three years, together with certain interest notes, and a trust deed securing the same upon a 25-foot lot in St. Louis. * * The principal note for $1,200, and the interest notes, dated January 19, 1901, were signed by the Fidelity Realty Company, by J. M. Donovan, president. They were payable to the order of George N. Cooper, a clerk in appellant's office, who indorsed them without recourse. The trust deed securing them was made to appellant, as trustee. The evidence tends to show that appellant controlled and managed the Fidelity Realty Company, and, the trust deed being made to himself as trustee and the notes being made to the order of his clerk, the conclusion is almost irresistible, in the light of the facts set forth in the statement preceding this opinion, that the papers thus prepared were really the papers of the appellant, though nominally those of a corporation in his office and under his control. * The written deed of guaranty, dated January 22, 1901, was signed by the J. T. Donovan Real Estate Company, by J. T. Donovan, president. It begins as follows: "Witnesseth, that for and in consideration of the sum of $1,200, paid to us by Miss Julia Purtell, we have assigned and transferred to her certain notes of Fidelity Realty Company, dated January 19, 1901, secured by a deed of trust," etc. Appellant signed this indenture, and in it recites that the sum of $1,200, belonging to Miss Purtell, was paid to "us," meaning thereby the J. T. Donovan Real Estate Company, of which he was president. In this guaranty he also recites that "we have assigned and transferred to her certain notes," etc. The notes were indorsed without recourse by his clerk. Cooper; but, in view of the recital thus quoted, Cooper merely acted for the appellant or his company, the J. T. Donovan Real Estate Com*The evidence also tends to show that there were judgments then existing against the Fidelity Realty Company, and that it had no financial standing whatever, but that it was, as is said by one of the witnesses, "gotten up to keep the property out of judgment." The proof shows that none of these corporations, controlled by appellant, paid their debts. One of the witnesses swears that, "when any adjustment was to be made, Mr. Donovan would use the property of any of these companies to make it, indiscriminately. He would settle the debts of the J. T. Donovan Real Estate Company with these properties, no matter to which company it [they] belonged." * pany. * * ** * The evidence tends to show that, although the appellant and his sons turned over to appellee these worthless securities in exchange for her money, yet that appellant himself received the money and used it for his own private purposes, and sought to escape personal liability by covering up the transaction in the name of a corporation, which was entirely under his own control. * * * Appellant was president of the J. T. Donovan Real Estate Company, and his son, Joseph M. Donovan, was the vice president of that company, and Joseph M. Donovan, the appellant's son, was the president of the Fidelity Realty Company. Both of these concerns were controlled, managed, and dominated by the appellant, J. T. Donovan. The officer or controlling manager of a corporation cannot use it and its name for the transaction of his own private business and to escape personal liability on his part. The theory upon which the appellant defends this suit is that the liability to appellee was not his liability, but that of the corporation known as the Fidelity Realty Company. * * * In the case of Bank v. Trebein Co., 59 Ohio St. 316, 52 N. È. 834, it was said: "The fiction by which an ideal legal entity is attributed to a duly formed incorporated company, existing separate and apart from the individuals composing it, is of such general utility and application as frequently to induce the belief that it must be universal, and be in all cases adhered to, although the greatest frauds may thereby be perpetrated under the fiction as a shield. But modern cases, sustained by the best text writers, confine the fiction to the purposes for which it was adopted--convenience in the transaction of business and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, unaffected by changes in its corporate members and have repudiated it in all cases where it has been insisted on as a protection to fraud or any other illegal transaction." In Cook on Corporations (5th Ed., 663), it is said: "A corporation is often organized to act as a 'cloak' for frauds. Such cases as these are becoming common, and the courts are becoming more and more inclined to ignore the corporate existence, when necessary, in order to circumvent the fraud." * * So, in the case at bar, appellant, as an officer of one or more of the corporations here involved, was guilty of such a fraud in transferring to appellee these worthless securities in payment of the money which he owed her that he can be held liable personally for the loss inflicted upon her. * * * * For the reasons above stated, we are of the opinion that the judgments of the lower courts were correct. Accordingly the judgment of the Appellate Court, affirming that of thé circuit court, is affirmed. * * * SECTION 3.—EFFECT OF INCOMPLETE ORGANIZATION BERGERON v. HOBBS et al. (Supreme Court of Wisconsin, 1897. 96 Wis. 641, 71 N. W. 1056, Action by J. A. Bergeron against A. A. Hobbs and others. From a judgment on a verdict directed for plaintiff, defendants appeal. The defendants, under the name of Bayfield Agricultural Association, employed several persons to perform labor in improving their grounds and in erecting fences and buildings. Time checks given by the defendants to such laborers, for such labor, were assigned to the plaintiff, who brings this action to recover their amount, alleging that the defendants were a co-partnership. The defendants alleged that they were members of a corporation, and denied that they were copartners, or liable as such. This was the issue which was tried. It |