INDEPENDENTS
721
INDEX
incorporation of civil corporations. In states, such as
Indiana, California, Michigan, Wisconsin and New
York (especially prior to 1893), where the principle of
the statute of charitable uses is not recognized, be-
quests to unincorporated institutions have frequently
been declared invalid because of the uncertainty of the
beneficiary (Ruth and others vs. Oberbrunner and
another: 40 Wis. 238). In many states, such as New
York and Pennsylvania, legacies to religious corpora-
tions are exempt from the inheritance tax ; whereas a
bequest to an unincorporated body, even though reli-
gious in its purposes, would be charged with the inher-
itance tax. Thus, in New York, a bequest to a mis-
sionary society, known as "The Paulist Fathers" was
held liable to the tax [In re Kavanaugh estate (Surr.),
6 N. Y., Supp. 619]. The inheritance tax legislation,
which is now coming to be practically general, may, in
states where the title to Catholic cFiurch property is
still held by the bishops in fee simple, raise issues of
some financial importance when it comes to transfer-
ring the estate of a deceased bishop to his successor.
The policy of the law evidently favours the incorpora-
tion of religious societies. This is also shown in the
extra safeguards which the statutes of many states
throw about the incorporated cemetery.
In Great Britain. — The state does not consider the Catholic Church as a corporation. Neither is a Catholic bishop made a corporation sole. Catholic Church property is usually held by trustees under a trust deed, or by joint ownership, where no trust has been declared. The mere purpose of holding or ad- ministering Catholic church property would not be admitted by the Registrar-General as a pur|)ose which would warrant the registering of a corporation under the Companies Act. Up to 1832, when the Roman Catholic Charity Act was enacted, the only way the English Catholics had of securing bequests and foun- dations was to place the property or money in the names of private persons who could be depended upon to apply it as desired by the donor. If these private parties appropriated the property or money or in any manner disregarded the trust, there was no remedy, as in the eyes of English law it was held to be their pri- vate property. A great deal of Catholic church prop- erty at the present day is simply invested in names, generally three, without mentioning any trust. When the Roman Catholic Charities Act of 1860 was before Parliament the question of declaring trusts was re- ferred by the English bishops to the Holy See. Cardi- nal Wiseman was of opinion that owing to bequests for Masses, etc., and conditions which the courts would hold as superstitious there was great danger of losing the property altogether. The Holy See took the opin- ion of the majority of the bishops, and in 1S62 decitled that trusts might be declared in accordance with the Act except in cases where there would be danger to the property. As a rule, however, the implied trust is generally recognized even to the extent of excusing such property from inheritance or succession duty. There is a charity Trust Act (1853, with later amend- ments) authorizing the registration of mission, .school and conventual property as a means of securing it for the purpose intended; but owing to the powers of the government department over such registered property and the publicity involved, many bishops and superiors have not availed themselves of the ad- vantages of the Act.
Tyi.kr, American Ecclesiastical Law {Whajay , 1866); Beach, On Private Corporations (New York. 1891); American and Eng- lish Encyc. of Law, XXIV. 323; Mannix Ass'n vs. Purcell et al., 46 O. St. 102; Baart, The Tenure of Catholic Church Property in the United States (New York. 190(1); Phillimore, Canon Law of the Church of England (Lomlon. ls(t5): Lilly and Wallis, Manual of the Law specialli/ nfffrfino Catholics (I^oa- don, 1893); Taonton, The Law of the Church (London. 1906).
Humphrey J. Desmond.
In Canada. — Corporate bodies may be created in Canada either by authority of the Dominion Parlia- VII.— 46
ment or of the Legislature of any of the provinces.
The respective powers as to incorporation are derived
from the "British North America Act," 1867, under
which the Dominion was constituted. Section 91 of
that Act sets out the powers of the ParUament of
Canada, and Section 92 the exclusive powers of the
provincial Legislatures. To the latter was given the
right to make laws in relation to "municipal institu-
tions in the province", "local works and undertak-
ings" (with certain specified exceptions), "the incor-
poration of companies with provincial objects",
"property and civil rights in the province ', and
" generally all matters of a merely local or private
nature in the province". Bodies corporate falling
within any of the above classes can be created by
provincial charter. In all other cases the charter
must be procured from the federal authorities. The
sections of the " British North America Act " dealing
with the distribution of the legislative powers, and
very particularly in their application to commer-
cial corporations, have teen subjected to judicial in-
terpretation in many cases decided in the Canadian
Courts and in the judicial committee of the Privy
Council. A provincial legislature may pass Acts en-
abling corporations to carry on certain operations
within that particular province, and the Dominion
Parliament may pass Acts empowering corporations
to carry on the same operations throughout the whole
Dominion. If a Dominion corporation should decide to
confine its operations to one province only, its status
as a corporation is not thereby affected. On the
other hand, it has been decided that a fire insurance
company created under authority of a provincial Act
is not inherently incapable of entering, outside its
province of origin, into a valid contract of insurance
relating to property also outside of those limits (Can.
Pac. Ry. Co. us. Ottawa Fire Ins. Co., 39 Sup. Ct.
Rep. 405). Corporations, whether federal or pro-
vincial, may be created in two ways, — by special
Act or by letters patent. When the former mode is
adopted, the Bill to create the corporation is intro-
duced and passed through Parliament or the Legis-
lature, as the case may be, in the same manner as
other Bills, and subject to the rules of procedure of the
legislative body. Religious corporations are created
by special Act. Commercial companies are generally
created by letters patent; and application therefor
is made by petition, setting forth the proposed name
of the company, the objects for which it is sought to be
incorporated, the amount of the capital, number of
shares, and information of a like nature. After
examination of the petition and payment of a pre-
scribed fee, the Governor-General of Canada or the
Governor of the province, as the case may be, issues
letters patent to the applicant. All corporations
must comply with the provincial regulations, as to
payment of license to do business within any par-
ticular province, and with municipal regulations as
to payment of taxes, etc. Foreign corporations are
permitted to exercise their functions within any of
the provinces of Canada under the comity of nations,
but they must also comply with all local regulations.
British Xorth .\merica .Xct. ISO?: Reports of Supreme Court of Canada (Ottawa, 1876-1909); Reports of the Judicial Com- mittee of the Privu Council (1868-1909); Reports of various Provincial Courts: Cartwright. Constitutional Cases (Toronto, 1882-1896); Lefroy. Lcfjislatice Power in Canada (Toronto, 1898); Parker and Clark, Company Law (Toronto. 1909).
J. A. Chisholm.
Independents. See Congregationalism.
Indeterminism. See Determinism.
Index, Congregation op the. See Roman Con- gregations.
Index of Prohibited Books, or simply Index, is used in a restricted sense to signify the exact list or catalogue of books, the reading of which is forbidden
