Footnotes to modern corporation sole
1 - Holmes-Pollock Letters 52-53 (M. Howe ed. 1941)
2 - W. Blackstone Commentaries 469. In the literature the terms "Corporation Sole" and "Sole Corporation" are interchangeable, but "Corporation Sole" is far more common.
3 - Id. At 469
4 - The earliest corporation were all civil or ecclesiastical, rather than for business or profit. See generally Laski, The Early History of the Corporation in England, 30 Harv. L Rev. 561 (1917); Williston, History of the Law of Business Corporation Before 1800 (pts. I & II), 2 Harv. L. Rev. 105, 149 (1888).
5 - 18 C.J.S. Corporations 15 (1939).
6 - I. W. FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS Sec 52 (rev. perm. Ed 1983).
7 - An exception is H. HENN & J. ALEXANDER LAWS OF CORPORATIONS SEC 6 (3d ed. 1983).
8 - Maitland, The Corporation Sole, 16 L.Q. Rev 335 (1900). Reprinted in F. MAITLAND SELECTED ESSAYS 73 (1936). There is however, a biography entitled CORPORATION SOLE, a life of Cardinal Mundelein of Chicago. See E. Kantowicz, THE CORPORATION SOLE (1983).
9 - "For practical purposes, the modern one-man corporation is the equivalent of the corporation sole." H. OLECX, NONPROFIT CORPORATIONS,ORGANIZATIONS, AND ASSOCIATIONS 33 (4th ed. 1980). While these two corporate forms do arise from completely different origins, under certain circumstances a modern one-person nonprofit corporation would resemble a corporation sole in practice. Oleck's conclusion, however, is far too broad.
10 - The modern "one-person" corporation is increasingly permitted by state law. The MODEL BUSINESS CORP. ACT 1.42, 2.01, 8.03 (1984) allow for one shareholder, one incorporator or one director, respectively.
11- "The office of bishop in most dioceses in the U.S. is a corporation sole." 4 NEW CATHOLIC ENCYCLOPEDIA Corporation 337 (1967). A current review suggests that approximately one-third of diosceian bishops are corporations sole. The remainder of the dioceses have small boards, usually appointed by the bishop.
12 - The distinction between the "old" common law form and the "new" American form of corporation sole was first proposed by Carl Zollmann, who pioneered the study of church corporations in American law. His trilogy of articles, Zollman, Classes of American Religious Corporation, 13 MICH. L. REV. 566 (1915); Zollmann Powers of American Religious Corporation, 13 MICH. L. REV. 646 (1915); Zollmann Nature of American Religious Corporations, 14 MICH. L. REV. 37 (1916), later appeared as chapter in C. ZOLLMANN, AMERICAN CIVIL CHURCH LAW (1917).
13 - Maitland, supra note 8
14 - C. CARR THE LAW OF CORPORATIONS 14 (1905 & plan to reprint 1984).
15 - William Laud (1573-1645) was Archbishop from 1633 to 1645; Edward White Benson (1829-1896) from 1883 to 1896; Cosmo Gordon Land (1864-1945) from 1928 to 1942.
16 - 2 J. KENT COMMENTARIES 273.
17 - Recent Cases, Corporations Sole, 12 MINN. L. REV. 295 (1928) [hereinafter Recent Cases].
18 - I. S. KYD, THE LAW OF CORPORATIONS 77 (1793 & plan to reprint 1978); 2 J. KENT COMMENTARIES 273; Overseers of the Poor v. Sears, 39 Mass 22 Pick.) 122, 127 (1839).
19 - Common law authorities held a gift to a corporation sole without the word "successors" to be legally insufficient. 1 KYD supra note 18, at 105. But see McCloskey v. Doherty, 97 Ky. 300, 30 S. W. 649 (1895). During a vacancy, the fee was "in abeyance" Terrett v.Taylor 13 U.S. (9 Cranch) 43, 47 (1815); Town of Pawlet v. Clark, 13 U.S. (9Cranch) 292, 329 (1815).
20 - Overseers of the Poor v. Sears, 39 Mass. (22 Pick) 122, 128 (1839).
21 - Since state authorization later became a requirement, a theory had to be developed to justify the corporate existence of the ancient churches. One such theory was based on the fiction that some earlier king had issued a charter subsequently lost, or at least that the Crown had no objection to continuing corporate existence. See Williston, supra note 4, at 113-14.
22 - The earliest mention of an incorporation cleric dates to 1448. Maitland, supra note 8 at 337.
23 - For a concise summary of this problem and imaginative efforts to solve it, see I. F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 486-511 (2d ed. 1898).
24 - Maitland, The Crown as Corporation 17 L.Q. Rev. 131 (1901), reprinted in F. MAITLAND, SELECTED ESSAYS 104 (1936).
25 - 2 W. BLACKSTONE, COMMENTARIES 469.
26 - C. CARR, supra note 14, at 16. For more specific background on the complex relationship between English law and the Roman Canon law, see generally F. MAITLAND, ROMAN CANON LAW IN THE CHURCH OF ENGLAND (1898); Re. The Roman Contribution to the Common Law, 29 FORDHAM L. REV. 447, 458-62 (1961).
27 - Maitland supra note 24, at 131.
28 - I. F. POLLOCK & F. MAITLAND, supra note 23 at 488 n.l.
29 - F. POLLOCK, THE GENIUS OF THE COMMON LAW 4 (1967).
30 - Of the dozens of articles on this subject, John Dewey's classic study is still widely cited. Dewey, The Historic Background of Corporate Legal Personality, 35 YALE L.J. 655(1926). See also Pollack, Has the Common Law Received the Fiction Theory of Corporations, 27 L.Q. REV. 219 (1911).
31 - C. CARR supra note 14, at 15.
32 - Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46 (1815).
33 - Id, at 46.
34 - Id, at 48
35 - Id, at 54-55.
36 - Statutes are occasionally mentioned in the early cases. Weston v. Hunt 2 Mass. 500, 501 (1807): Inhabitants of the First Parish in Brunswick v. Dunning, 7 Mass 445, 447 (1811).
37 - Inhabitants of Bucksport v. Spofford, 12 Me. 487, 488 (1835). For background material on the legal aspects of the territorial parish, se Kauper & Ellis, Religious Corporations and the Law, 71 MICH. L. REV. 1499, 1505-07 (1973).
38 - Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 47 (1815): Beckwith v. Rector of St. Philip's Parish, 69 Ga. 564 (1882).
39 - I. J. DAVIS ESSAYS IN THE EARLIER HISTORY OF AMERICAN CORPORATIONS 75-76 (1917).
40 - Recent Cases, Supra note 17, at 297.
41 - Town of Pawlett v. Clark, 13 U.S. (9 Cranch) 292 (1815).
42 - Zollman, Classes of American Religious Corporation, 13 MICH. L. REV. 566, 571 (1915).
43 - Overseers of the Poor v. Sears, 39 Mass. (22 Pick) 122, 126 (1839).
44 - Jansen v. Ostrander, 1 Cow 60, 683 (N.Y. Sup. Ct. (1824).
45 - Polk v. Plummer, 21 Tenn. (2 Hum.) 500 (1841): Governor V. Allen, 17 Tenn. (8 Hum.) 176 (1847).
46 - I. W. FLETCHER, Supra note 6, at SEC 53.
47 - The many tax cases involving "The Commissioner" are not unlike the citations of a corporation sole acting as party to a suit.
48 - Browers v. Fromm, 1 Add 362 (pa. 1798).
49 - 1792 Md. Laws 55.
50 - See generally I.A. STOKES, CHURCH AND STATE IN THE UNITED STATES 808-18 (1950); Guilday, Trusteeism (1814-1821). 18 HIST. REC. & STUD. 7 (1928): McNamara, Trusteeism in the Atlantic States 1785-1863. 30 CATH. HIST. REV. 135 (1944); Stritch, Trusteeism in the Old Northwest, 1800-1850, 30 CATH. HIST. REV. 155 (1944).
51 - See generally R. BILLINGTON, THE PROTESTANT CRUSADE (1938).
52 - A. STOKES, supra note 50 at 808.
53 - P. DIGMAN, HISTORY OF THE LEGAL INCORPORATION OF CATHOLIC CHURCH PROPERTY IN THE UNITED STATES 1784-1932 (1933).
54 - P. GUILDAY. A HISTORY OF THE COUNCILS OF BALTIMORE 1751-1884 (1932). The 1829 meeting was attended by Roger B. Taney, a prominent Catholic layman, later Chief Justice of the United States from 1836 to 1864. Taney's role at this meeting is bishops is unclear, but possibly he was serving as legal counsel Id. At 89.
55 - 1832 Md. Laws 308.
56 - Recent Cases, supra notes 16, at295-96.
57 - There were a few Roman Catholic bishops ministering to congregations before 1850 but there were no dioceses until the hierarchy was reestablished in that war with the appointment of the Cardinal Wiseman as Archbishop of Westminster.
58 - This long-standing policy was formally codified in 1917 Code c 100 2. For an exceptionally clear short explanation of the canonical concept of moral personality. See A. MAJDA, OWNERSHIP, CONTROL AND SPONSORSHIP OF CATHOLIC INSTITUTIONS 10-22 (1975).
59 - C. CARR, Supra note 14, at 16 n.1.
60 - B. BROWN THE CANONICAL JURISTIC PERSONALITY WITH SPECIAL REFERENCES TO ITS STATUS IN THE UNITED STATES OF AMERICA 144 (1927).
61 - It is not the purpose of this study to create a state-by-state history of this pattern of incorporation. However, in some of the cases there are occasional references to the history of this pattern. A few examples will suffice; Illinois had created a corporation sole by private act in 1845; South Carolina in 1880; Kentucky in (or before) 1888; Massachusetts in 1898. See Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148 (1866); Decker v. Bishop of Charleston, 247 S.C. 317, 147 S.E.2d 264 (1966); McCloskey v. Doberty, 97 Ky. 300, 30 S.W. 649 (1895); Searle v. Roman Catholic Bishop of Springfield, 203 Mass. 493, 89 N.E. 809 (1909).
62 - Union Church v. Sanders, 6 Del. (1 Houst) 100, 127 (1855).
63 - For a summary of the later stages of the trusteeship controversy, see 3 A. STOKES, Supra note 50, at 408-13. The Vatican gave formal approval to the corporation sole as one of the approved modes of holding title to church property in a private letter sent to the American bishops in 1911. For the text, see 2 T. BOUSCAREN CANON LAW DIGEST 443 (1966). The corporation sole is still the preferable civil law instrument for the dioceses to use in holding title to property. See A. MAJDA & N. CAFARDI CHURCH PROPERTY, CHURCH OF FINANCES, AND CHURCH RELATED CORPORATIONS 129 (1986).
64 - See Roman Catholic Archbishop v. Shipman, 79 Cal. 288, 21 P. 830 (1889) (affirming action taken by the legislature of California). For other decisions where a court did not recognize a corporation sole because the legislature had not acted or where a party had not followed a procedure created by state law, see Dwenger v. Geary, 113 Ind. 106, 14 N.E. 902 (1888); Blakesloe v. Hall 94 Cal. 159, 29 P. 623 (1892); First Nat'l Bank v. Winchester, 119 Ala. 168, 24 So. 351 (1898).
65 - Wright v. Morgan, 191 U.S. 55, 59 (1903).
66 - Zollmann, Classes of American Religious Corporations, 13 MICH. L. REV. 566, 571 (1915).
67 - Id. at 573.
68 - A law is classified as explicit if the words "corporation sole" are used, or if the words "and his successors" are employed in a context clearly designating a corporation sole.
69 - ALA. CODE 10-4-1 to 9 (1975); ALASKA STAT. SEC 10.40.060 (1985); ARIZ. REV. STAT. ANN. 10-421 to 426 (1977); CAL. CORP. CODE 10000-10015 (West 1977); COLO. REV. STAT. 7-52-101 to 104 (1986); HAW. REV. STAT. 419-1 to 9 (1985); IDAHO CODE SEC 30-304 (1980); MICH. COMP. LAWS ANN. 458.1-2, 458.271-273 (West 1983); MONT. CODE ANN. 35-3-101 to 209 (1985); NEV. REV. STAT. 84.010-080 (1985); N.H. REV. STAT ANN. 306.6-8 (1984); N.C. GEN. STAT. SEC 615 (1982); OR. REV. STAT. SEC 61.055(1)-(3) (1983); S.C. CODE ANN. SEC 33-31-140 (Law. Co-op. 1976); UTAH CODE ANN. 16-7-1 to12 (1973); WASH. REV. CODE ANN. SEC 24.12010-.040 (1969); WYO. STAT. SEC 17-8-109 to 113 (1977).
70 - They are the District of Columbia, Illinois, Kentucky, Maine, Maryland, Massachusetts, Nebraska, and Rhode Island. The author is unaware of any authoritative listing of the states which have sole corporations under private law or special incorporation This list was drawn from cases citing a corporation sole in a judicial opinion, from examination of sessions laws, and from a listing of corporate names of dioceses in the 1987 Official Catholic Directory.
71 - Prior to the enactment of California's statute, the California Supreme Court had found the priest of the Mission Delores to have a position in law "analogous" to that of a corporation sole in England, Santillan v. Moses, 1 Cal. 92 (1850).
72 - All references to the California code are to CAL. CORP. CODE SEC 10000-10015 (West 1977). Filing procedures: Id. at SEC 10003-10005: applicability to earlier corporations: Id. at SEC 10000 to 10001; dissolution: Id. at SEC 10012 to 10015.
73 - Every other state with a codified corporation sole reserves it to specified clergy, except Alaska ("any person and a successor in office") and Arizona ("scientific research institutions"). See ALASKA STAT. SEC 10.40.060 (1985); ARIZ. REV. STAT. ANN. SEC 10-421 to 422 (1977).
74 - CAL. CORP. CODE SEC 10007 (West 1977). A few other states add the power to have a corporate seal. See e.g. NEV. REV. STAT. SEC 84.050 (1985).
75 - CAL. CORP. CODE SEC 10003(d) (West 1977).
76 - Id. at 10008.
77 - 1832 Md. Laws 308.
78 - 1868 Md. Laws 268.
79 - 1874 Md. Laws 398.
80 - 1894 Md. Laws 50. Strangely enough, on the very day this amendment was passed, the Maryland Court of Appeals upheld the validity of the original 1832 statute. See Gump v. Sibley, 79 Md. 165, 29 A. 977 (1894).
81 - 1927 Md. Laws 397.
82 - MD. CORPS. & ASSNS CODE ANN. SEC 5-513 (1985).
83 - Id. at SEC 5-314 to 320.
84 - Maitland, supra note 24, at 145.
85 - C. CARR, supra note 14, at 32-33.
86 - CAL. CORP. CODE SEC 10008 (West 1977).
87 - Maryland uses the phrase "according to the discipline and government of the Roman Catholic Church." 1832 Md. Laws 308.
88 - The author speculates that most legal disputes involving a corporation sole would be simple torts resolved in insurance settlements or at the trial level. There may also be a certain reluctance for potential plaintiffs to sue an officer of a church or for officers of a church to permit disputes to go to trial.
89 - See, e.g. Decker v. Bishop of Charlemon, 247 S.C. 317, 147 S.E.2d 264 (1966): Barabasz v. Kabat, 86 Md. 23, 37 A. 720 (1897).
90 - See, e.g., Hurley v. Werly, 203 So. 2d 530 (Fla. Dist. Ct. App. 1967).
91 - See, e.g., Zani v. Phandor Co. 281 Mass. 139, 183 N.E. 500 (1932).
92 - See, e.g., Roman Catholic Archbishop v. Superior Court, 15 Cal. App. 3d 405, 93 Cal. Rptr. 338 (1971). In this rather amusing case, the Archbishop of San Francisco was sued for damages when a California citizen had a dispute with a Swiss monastery about delivery of a dog bred at the monastery. The court held that the Archbishop could not be held responsible as "alter ego" for a monastery he had never heard of. Id. at 411, 93 Cal. Rptr. At 341.
93 - See, e.g., Roman Catholic Archbishop v. Industrial Accident Common, 194 Cal. 660, 230 P. 1 (1924).
94 - See, e.g., People ex rel. Pearsall v. Catholic Bishop, 311 Ill. 11, 142 N.E. 520 (1924).
95 - See, e.g. ,City of Little Rock v. Linn. 245 Ark. 260, 432, S.W.2d 455 (1968).
96 - See, e.g., In re Estate of Zabriskie, 96 Cal. App. 3d 571, 158 Cal. Rptr. 154 19179).
97 - See, e.g., Baldwin v. Commissioner, 309 N.W.2d 750 (Minn. 1981).
98 - See, e.g., Judicial intervention in Disputes over the Use of Church Property, 75 HARV. L. REV. 1142 (1962); Note Judicial Intervention in Church Property Disputes-Some Constitutional Considerations, 74 YALE L.J. 1113(1981); Oaks, Trust Doctrines in Church Controversies, 1981 B.Y.U.L. REV. 805.
99 - VA. CONST. Art IV, SEC 14(20): W.VA. CONST. Art 6, SEC 47.
100 - Kauper & Ellis, supra note 37, at 1529.
101 - I.A. HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 545 (1974).
102 - Thomas Jefferson died in 1826; James Madison in 1836.
103 - See, Powell v. Dawson, 45 W. Va. 780, 32 S.E. 214 (1899).
104 - Kauper & Ellis, supra note 37, at 1530.
105 - KAN. CONST. Art 12, SEC 3 (repealed 1974).
106 - CONN. GEN. STAT. ANN SEC 33-281 (West 1987).
107 - State ex rel, Barry v. Getty, 69 Conn. 286, 289, 37 A. 687, 688 (1897).
108 - OKLA. STAT. ANN. Tit. 18 SEC 563 (West 1986).
109 - VT. STAT. ANN. Tit. 27, SEC 703 (1975).
110 - City of Little Rock v. Linn. 245 Ark. 260, 432 S.W.2d 455 (1968).
111 - See, Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927): 8 FLA. JUR. 2d, Business Relationships, SEC 6 (1978).
112 - See, Note, The Corporation Sole, 26 MICH. L. REV. 545 (1928): Recent Cases, supra note 17, at 296-97.
113 - Wright v. Michigan, 191 U.S. 55, 59 (1903).
114 - For a brief history of "The Question of Federal Incorporation." See 3 A. STOKES, Supra note 50, at 413 Stokes was not aware of the 1948 legislation incorporating the Archdioceses of Washington.
115 - Id. at 414.
116 - Telephone interview with Rev. Godfrey Mosley, Vice Chancellor of the Archdiocese of Washington (Sept. 16, 1987).
117 - 62 Stat. 355 (1948).
118 - See, H. HENN & J. ALEXANDER, Supra note 7, at 697 n.l: I. W. FLETCHER, Supra note 6, at SEC 54.
119 - See, e.g., Louisville Banking Co. v. Eisenman, 94 Ky. 83, 21 S.W. 531 (1893).
120 - Telephone interviews with Rev. Msgr. Joseph F. Rebman, Chancellor of the Diocese of Wilmington (Nov. 2, 1987) and with Rev. Msgr. Paul J. Schierse, Former Chancellor (Oct. 30, 1987).
121 - DEL. CODE ANN. Tit 27, SEC 115-17 (1975).
122 - The General Corporation Law of Delaware is found in DEL. CODE ANN. Tit 8, SEC 101-398 (1984 & Supp. 1986). The number of directors is treated in SEC 141: section 242 deals with non-stock corporations: and Subchapter XIV, beginning with SEC 341, addresses close corporations.
123 - The Diocese was so incorporated on December 2, 1972. Telephone interview with James P. Collins, Esq.-Legal Counsel of the Diocese of Wilmington (Nov. 3, 1987).
124 - Most dioceses today incorporate each parish and institution separately to limit insurance liability. The corporation sole thus becomes a holding company with multiple subsidiaries.
