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Black's Law Dictionary, Sixth Edition (Plus general questions & answers)
[Aggregate and Sole]
Page 341:
"A
corporation sole is one consisting of
one person only, and his successors in some
particular station, who are incorporated by law in order to give them some legal
capacities and advantages, particularly that of perpetuity, which in their
natural persons they could not have had. In this sense, the sovereign in England is a sole corporation, so is a
bishop, so are some deans distinct from their several chapters, and so is every
parson and vicar."
Page 684:
It is, however, objected on the part of the
defendants that, the supervisor, if endued with corporate powers, is a corporation sole, which cannot take goods and
chattels in succession; that they do not, on his death, go to the successor, but
the personal representatives; and they cite Kyd on Corporations, Intro. P. 31,
Co. Litt. 46, b. Where it is said, "If a lease for years be made to a bishop,
and his successors, yet his executors and administrators shall have it, in
auterdroit; for, regularly, no chattel shall go to succession, in case of a sole
corporation, no more than if a lease be made to a man and his heirs, it can go
to his heirs." The same doctrine is laid down to Fulwood's case, (4 Co. 65,)
where, however, the Court held a recognizance good to the chamberlain of London
and his successors, upon a custom; for that he was a corporation by custom; and
the same custom which created him, made him a corporation in succession, to this
special purpose; but that a bishop, parson, &c. Can only take on an
obligation in their private, and not in their corporate capacity.
Page 685:
Corporation sole are of two kinds: the one when the person has a
corporate capacity for his own benefit; the other when he acts only as trustee
for the benefit of others. Of the former kind, Kyd instances the king, bishops,
parsons, of the other, the most familiar instance, says the same author, is the
chamberlain of the city of London, who may take a recognizance to himself and
successors, in trust for the orphans.
The true reason, therefore, of the distinction
between the case of the bishop, and the chamberlain, is not the custom alleged,
but the fact that the former takes obligations in his private capacity, and the
later in his corporate capacity.
The earliest corporations were civil or
ecclesiastical, rather than business or profit. See generally Laski, The Early
History of the Corporations in England, 30 Harvard Law Review 561 (1917);
Williston, History of the Law of Business Corporations Before 1800 (pts. I and
II, 2 Harvard Law Review 109, 149 (1888).
Please Describe Some of the Main Characteristics of a
Corporation sole, and Distinctions
Between a Corporation sole and a
Corporation Aggregate.
"Legal nomenclature is for once its own interpreter.
A member of a corporation sole is one of
a series of persons succeeding one another in some official position." C. Carr,
The Law of Corporations 14 (1905 & photo reprint 1984). For example Queen Elizabeth II, as a corporation sole, is identical to Victoria; the
present Archbishop of Canterbury in his corporate form is one with his
predecessors, Laud, Benson and Lang. The corporation sole, unlike its business
counterpart, is only vertical in time.
"There are a few points of corporation law applicable
to a corporation sole," according to
Kent. [2J. KENT, COMMENTARIES 273.] There are however, four legal
characteristics unique to it: All corporations sole are "either public officers
or dignitaries of the established church." In sort the corporation sole is the incorporation of an
office. At common law, the corporation
sole can claim title to real property only. Property and powers of a
corporation sole are transferred on the
death of an incumbent to successors in office, not to heirs or through
executors.
The corporation
sole lacks the usual trappings of a corporation. It does not have a
board of directors, officers, stock, by-laws, official minutes, or standard
corporate name. The older corporations sole are also devoid of a royal charter
or other formal authorization, characteristics that may be required of later
corporations. [Since state acknowledgment later became an alleged requirement,
or at least a state policy, a theory had to be developed to justify the corporation sole existence of the ancient
churches. One such theory [not law] was based on the fiction that some earlier
king had issued a charter which was subsequently lost, or at least the crown had
no objection to continuing a corporate existence. [See Williston, History of the
Law of Business Corporations Before 1800 (pts. I & II), 2 Harvard Law Review
105 at 113-114.]
In the Massachusetts case of The Overseers of the
Poor of the City of Boston v. David Sears 39 Mass (2Pick) 122 at 128 (1839) the
Massachusetts Supreme Court there described some of the distinguishing aspects
between a corporation sole and
corporation aggregate as follows:
". . .In all these aspects, the distinction between
an aggregate and sole corporation,
growing out of the different modes of constitution and forms of action, is
striking and obvious. A bishop or parsons acting in a corporate capacity and
holding property to him and his successor in right of office, has no need of a
corporate name, he requires no particular, he performs all legal acts under his
own seal, In his own name and name of office; his own will alone regulates his
acts and he has no occasion for a secretary, for he need not keep a record of
his acts, need no treasurer, for he has no personal property except the rents
and proceeds of the corporate estate, and these he takes to his own use when
received. By-laws are unnecessary, for he regulates his own action, by his own
will and judgment, like any other individual acting in his own right. But it is
not necessary to pursue the comparison into all its details; the points
suggested are sufficient to show the legal distinctions between the two classes
of corporations."
The Overseers case was decided in 1839. In a more
recent decision in 1983, the California Second Appellate District decided County
of San Luis Obispo v. Delmar Ashurst 146 Cal.. App.3d 380, 194 Cal. Rptr. 5
(1983) wherein it insightfully stated:
". . .The issue as defined by the trial court, "is
whether the assets of its corporation
sole are the personal assets of its titular head, and thus subject to
execution for his or her debts." The answer on the basis of legal authorities
defining the corporation sole and its
attributes must be, as the trial court concluded, an unequivocal "no". The
corporation sole is a venerable creation
of the common law of England, and is well established under common law in
California. (Santillan v. Moses (1850) 1 Cal. 92; Archbishop v. Shipman (1889)
79 Cal. 283. California by statute has legitimized this tradition and regulates
the formalities attendant upon the creation and continued existence of the
corporation sole (Corp. Code Section
10000 et seq.) One principal purpose of the corporation sole is to insure the continuation of
ownership (sic) [quiet possession given by GOD under
Abrahamic Covenant] dedicated to the benefit of a religious
organization which may be held in the name of the titular head (sic) [The
Office]. Title [quiet possession by inheritance from
GOD] will not then be divested or passed to that person's heirs upon
the death but will be retained for the benefit of the religious group and passed
to the successors to his office.
The topic was covered by Blackstone who described the
corporation sole as follows: "Corporation sole consist of one person only and
his successors, in some particular station, who are incorporated by law, in
order to give them some legal capacities and advantages, particularly that of
perpetuity, which in their natural persons they could not have had. In this
sense the king is a corporation sole; so
is a bishop; some are deans, prebendaries, distinct from their several chapters;
and so is every parson and vicar. And the necessity of at least use, of this
institution will be very apparent, if we consider the case of a parson of a
church. At the original endowment of parish churches, the freehold of the
church, the churchyard, the parsonage house, the globe, and the tithes of the
parish, were vested in the then parson by the bounty of the donor, as a temporal
recompense to him for the spiritual care of the inhabitants, and with the intent
that the same emoluments should afterwards continue as a recompense for the
care. But how was this to be effected? The freehold was vested in the parson;
and, if we suppose it vested in his natural capacity, on his death it might
descend to his heir, and would be liable to his debts and encumbrances; or at
best, the heir might be compellable, at some trouble and expense, to convey
these rights to the succeeding incumbent. The law therefore has wisely ordained,
that the parson, quatenus (as) parson, shall never die, any more than the king;
by making him and his successors a corporation. By which means all the original
rights of the parsonage are preserved entire to the successor; for the present
incumbent, and his predecessor who lived seven centuries ago, are in law one and
the same person; and what was given to the one was given to the other also." (1
Blackstone's Commentaries, ch. 18, pp. 469-470).
The Vatican gave formal approval to the corporation sole as one of the approved methods
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) A. MAIDA & N. CAFARDL, CHURCH FINANCES AND CHURCH RELATED
CORPORATIONS 129 (1986)
Can You Provide More Examples of the Modern Use of a
Corporation sole, and Recognition by
Legislatures and Courts of the United States of America?
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 as of 1988 reveals
approximately one-third of the diocesan bishops are corporations sole. The
remainder of the dioceses have small boards, usually appointed by the bishop.
See Maitland, The Corporation sole, 16
Law Quarterly Review 335 (1900), reprinted in F. Maitland, Selected
Essays 73 (1936). There is however a biography entitled Corporation sole, a life of Cardinal Mundelein,
See E. Kantowicz, The Corporation sole
(1983).
The Office of the President of the Church of Jesus
Christ of Latter Day Saints is a corporation
sole.
The Governor of
Tennessee is regarded as a corporation sole. Polk v. Plummer, 21 Tenn. (2
Hum.) 500 (1841); Governor v. Allen, 27 Tenn. (8 Hum.) 176 (1847).
Probate judges have been accorded the status of a
corporation sole [Overseers of the Poor
v. Sears, 39 Mass. (22 Pick.) 122, 126 (1839)., and in some cases town
supervisors [Jansen v. Ostrander 1 Cow. 670, 683 (N.Y. Sup. Ct. 1824)].
Under the Governor General & rsquos Act of Canada
at Chapter G-9, Part 1, para. 2 it reads: "The Governor
General of Canada or other chief executive officer or administrator carrying
on the Government of Canada on behalf and in the name of the
Sovereign, by whatever title designated, is a corporation sole."
The Office of the Pope of the
Roman Catholic Church is a corporation
sole.
Most English speaking countries with a form of
government based on common or cannon law (including the United States, Canada, Latin America, and Caribbean
Islands) recognize corporation
sole in two significant ways. In the first instance, states
acknowledge the office as prior existing, provided the articles of incorporation
are drafted so as to provide the pre-article history of the office. In the
second instance, states recognize a newly created corporation sole by the simple filing of articles
of incorporation. In this latter instance, the articles do not reference any
pre-incorporation history of the office, as indeed none exists.
In statutory form encompassing both types of
corporations sole seventeen states in the United States of America recognize the
corporation sole. They are:
·
Alabama Code Section 10-4-1 to 9
(1975)
·
Alaska Stat. Section 10.40.060
(1985)
·
Arizona Revised Stat. Ann.
Section 10-421 to 428 (1977)
·
California Corp. Code Sections
10000 to 10015 (West 1977)
·
Colorado Rev. Stat. 7-52-101 to
104
·
Hawaii Rev. Stat. Section
419-1to9
·
Idaho Code Section 30-304
·
Michigan Comp. Laws Ann. Section
458. 1-2, 458.271-273 (West 1983)
·
Montana Code Ann. 35-3-101 to 209
(1985)
·
Nevada Rev. Stat. Section
84.010-080 (1985)
·
New Hampshire Rev. Stat. Ann.
Section 306.6-8 (1984)
·
North Carolina Gen. Stat. Section
615 (1982)
·
Oregon Rev. Stat. Section 61.055
(1)-(3) (1983)
·
South Carolina Code Ann. Section
33-31-140 (Law Co-op 1978)
·
Utah Code Ann. Section 16-7-1 to
12 (1973)
·
Washington Rev. Code ann. Section
24.12.010-040 (1969)
·
Wyoming Stat. Section 17-8-109 to
113 (1977)
At least nine other states or jurisdictions have at
least one corporation sole created under
special or private charter, sometimes dating to before the time of the passage
of a general incorporation statute. They are the District of Columbia, Illinois,
Kentucky, Maine, Maryland, Massachusetts, Nebraska, Rhode Island, and Texas. No
authoritative listing has been found listing the states which have corporations
sole under private law or special incorporation. The foregoing nine
jurisdictions were drawn from cases citing a corporation sole in a judicial opinion, from the
examination of sessions law, and from a listing of corporate names of dioceses
in the 1987 Official Catholic Directory.
In Terret v. Taylor 13 U.S. (9Cranch) 43, 46 (1815),
Town of Pawlett v. Clark 13 U.S. (9 Cranch) 292 (1815), W. Trinidad v. Sagrade
Orden de Predicadores 263 U.S. 458 (1924) where the Court states at page 460:
". . .The plaintiff being a corporation sole, has no stockholders. It is the
legal representative of an ancient religious order the members of which have
among other vows, that of poverty."
The existence of a corporation sole is also analyzed by the Supreme
Court in deciding the exempt tax status in Northwestern University v. People 99
U.S. 387 (1878).
Finally, in determining the question of federal and
state tax excepted [distinguished from exempt] status of a hospital and
infirmary operated by the office of the corporation
sole called: "Sisters of Charity of the Incarnate Word", the Texas
appellate court discussed the exception status under federal internal revenue
statutes as follows:
". . .Under a federal internal
revenue statute, 4 Fed Stat. Ann (2d ed.) Pp. 245-252; 38 Stat. At
Large, chap. 16, pp. 172-180, exempting the income of
corporations sole organized and operated exclusively for religious, charitable,
scientific, or educational purposes, no part of the net income of which inures
to the benefit of any private stockholder or individual. It has just
recently been held by the United States in the case of Trinidad v. Sagrada Orden
de Predicadores, 44 Sup. Ct. 204, 68 L. Ed. 223, that a corporation sole, of an ancient religious order
of similar character to the one here under consideration, does not forfeit its
exemption by reason of incidental earnings and profits arising from its general
charitable operations, where none of its members share in the profits." Santa
Rosa Infirmary v. City of San Antonio (Tex. Com. App. 1925) 259 S.W. 926
at 934.
Is One Jurisdiction Favored Over Any Other As a State
or Country where The Corporation sole
Might be Recorded?
After reviewing all of the corporation sole statutes and case law available
on this subject, Washington and Nevada are favored simply because the statutes
are simple, the fees are minimal, and the statute prohibits any annual fee or
filings.
Do Other Jurisdictions Recognize Corporation sole?
The doctrine of comity involves the recognition that
one sovereignty allows within the territory to the legislative, executive, or
judicial act of another sovereignty, having due regard for its own citizens. In
general, the principle of comity is that the courts of one state or jurisdiction
will give effect to the laws and judicial decisions of another state or
jurisdiction, not as a matter of obligation, but out of deference and mutual
respect. Brown v. Babbit Ford, Inc. 117 Ariz. 192, 571. P.2d 689, 685. Although
the term "comity" is defined in Black's Law Dictionary 6th ed. (1991) at
page 267, the question is by no means clear whether each state, county or other
political subdivision thereof will automatically recognize a corporation sole acknowledged by the Nevada
Secretary of State.
"When a state departs from a generally accepted rule
of private international law, it is not denounced as a law-breaker by judges or
diplomats in other countries. English judges sometimes say that their actions
are dictated by comity;. This is an unusual word, and gives the impression of
being a technical term; however it is unclear what, if anything, English judges
mean when they use it. Its literal meaning is & courtesy and in this sense
comity is regarded as something different from law of any sort; rules of comity
are customs which are normally followed but which are not legally obligatory. At
other times is used as a synonym for private international law; as a synonym for
public international law; or as a totally meaningless expression. It is a
wonderful word to use when one wants to blur the distinction between public and
private international law, or to avoid clarity of thought." AKEHURST, MODERN
INTRODUCTION TO INTERNATIONAL LAW, 7th ed. (1996), p. 73.
In some instances yes, in most cases no. The corporation sole is not taught in modern law
school classes. Unless the lawyer has had extensive experience with
ecclesiastical or canon law, or other ecclesiastical bodies using the corporation sole, and well versed and learned in
corporation sole, the chances are the
lawyer, accountant, or advisor, will be entirely unfamiliar with the corporation sole.
At best, the lawyer, accountant, or advisors
unfamiliarity, or limited knowledge, with the corporation sole will probably cause him or her
to confuse it with a "non profit" or "not for profit" corporation with or
without a 26 U.S.C.S. 501 (c)(3) status. IT MUST BE EMPHASIZED THE CORPORATION SOLE IS DIFFERENT FROM a "non-profit"
or "not-for-profit" corporation with or without at 26 U.S.C.S. 501 (c)(3) status
IN ALMOST EVERY CONCEIVABLE WAY. Under these circumstances with a lawyer,
accountant, or advisor, unfamiliar with a corporation sole, it is recommended to seek out
competent advice and assistance of a lawyer or knowledgeable advisor extremely
familiar with corporation sole, who can
assist, rather than fights with or re-characterizes your objectives. Although,
asking a lawyer or accountant to educate himself or herself, can become
extremely costly.
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