corpsole handout

UNITED STATES STATUTES AT LARGE

CONTAINING THE

LAWS AND CONCURRENT RESOLUTIONS

ENACTED DURING THE SECOND SESSION OF THE NINETY-SEVENTH CONGRESS

OF THE UNITED STATES OF AMERICA

1982

AND

PROCLAMATIONS

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VOLUME 96 . IN TWO PARTS

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PART 1

PUBLIC LAWS 97-146 THROUGH 97-301

UNITED STATES GOVERNMENT PRINTING OFFICE

WASHINGTON : 1984

PUBLIC LAW 97-280--0CT. 4, 1982 96 STAT. 1211 Public Law 97-280 97th Congress

Joint Resolution Oct 4, 1982

Authorizing and requesting the President to proclaim 1983 as the "Year of the Bible". [S.J. Res. 165]

Whereas the Bible, the word of God has made a unique contribution in shaping the United States as a distinctive and blessed nation and people;

Whereas deeply held religious convictions springing from the Holy Scriptures led to the early settlement of our Nation;

Whereas Biblical teachings Inspired concepts of civil government that are contained in our Declaration of Independence and the Constitution of the United States;

Whereas many of our great national leaders--among them Presidents Washington, Jackson, Lincoln, and Wilson--paid tribute to the surpassing influence of the Bible in our country’s development, as in the words of President Jackson that the Bible is ’’the rock on which our Republic rests";

Whereas the history of our nation clearly illustrates the value of voluntarily applying the teachings of the scriptures in the lives of individuals, families, and societies;

Whereas this Nation now faces great challenges that will test this Nation as it has never been tested before; and Whereas that renewing our knowledge of and faith in God through Holy Scripture can strengthen us as a nation and a people: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United

States of America in Congress assembled, That the President is Year of the authorized and requested to designate 1983 as a national ’’Year of the Bible" in recognition of both the formative influence the Bible has been for our Nation, and our national need to study and apply the teachings of the Holy Scriptures.

Year of the Bible.

Approved October 4, 1982.

LEGISLATIVE HISTORY -- S.J. Res. 165:

CONGRESSIONAL RECORD, Vol. 128 (1982): Mar. 31, considered and passed Senate. Sept. 21, considered and passed House.

CORPORATION SOLE: DISCRIPTION Corporation Sole’s are filed with the Arizona Corporation Commission (ACC) in accordance with Arizona Revised Statute title 10, section 11902 (ARS 10-11902). The corporation sole is the incorporation of an office of a church or religious society and is formed to acquire, hold and dispose property for the benefit of religion, for works of charity and for public worship, and of property of scientific research institutions maintained solely for pure research and without expectation of pecuniary gain or profit Basically a corporation sole is a corporation of one and lacks the usual trappings of a corporation. It does not have a board of directors, officers, stock, by-laws, official minutes, seal, or corporate name (Overseers of the Poor v. Sears, 39 Mass. 122). The fact that the corporation sole works satisfactorily is, perhaps, best illustrated by the relative absence of recent cases carried to the appealet courts. Corporate structure is seldom at issue, but the cases tend to run the gamut: torts, contract, civil procedure, piercing the corporate veil, workman’s compensation, taxation, eminent domain, estates and simple fraud. Property disputes are relatively rare, perhaps because there would be first amendment implications for most corporation sole. The important thing to keep in mind is that the corporation sole can do no wrong, it is the office holder who finds himself in court for going outside of the articles of the corporation sole. Corporate veil: in County of San Luis Obispo v. Delmar Ashurst (146 Cal.App.3 rd 380), the county was suing Ashurst for personal debts he incurred. The court ruled that the assets of the corporation sole belong to the corporation sole and not its titular head. Taxation: because a corporation sole is an integrated auxiliary of a church or religious society it is not only exempt from taxation but there is a mandatory exception from having to apply for recognition of exempt statues (26 USC 508). IRS publication 557 (Rev. November 1991) page 21 states:

“Although a church, its integrated auxiliaries, or a convention or association of churches is not required to file Form 1023 to be exempt from federal income tax or to receive tax deductible contribution, the organization may find it advantageous to obtain recognition of exemption.”

Furthermore ARS 43-1201 states that corporations organized and operated exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children or animals are exempt from state taxation. Finally, one of the biggest advantages of a corporation sole over a corporation aggregate is that property and powers of a corporation sole are transferred on the death of an incumbent to successors in the office, not to heirs or through executors. The corporation sole exist in perpetuity and are not required to maintain an annual reporting to continue to do business (ARS 10-11904).

CORPORATE SOLE AND TITLE 26 §508 (C) (1) (A)

Blackstone’s Commentaries, Book One Chapter Eighteen, subsection 635 B. Corporation sole Corporation sole consists 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 sole corporation; so is a bishop; so are some deans and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the parson of a church. At the original endowment of the parish churches, the freehold of the church, churchyard, the parsonage house, the globe, and the tithes of the parish, were vested then in the parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of his congregation, and with the intent that the same emoluments should forever after continue as a recompense for the same care. But how was this to be effective? The freehold is invested in the parson; and if we suppose it invested in his natural capacity, on his death it might descend to his heir, and would be liable for 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 to the successor; for the present incumbent, and his successor 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. Sufficient case law has well established the Corporation “Sole” in the United States of America: Weston v. Hunt. 2 Mass. 500; Archbishop of San Francisco v. Shipman, 79 Cal. 288, 21 Pac. 830; McClosky v. Doherty, 97 Ky. 300, S.W. 649; Governor v. Allen, 8 Humph. (Tenn.) 176; R. v. Chancellor of Cambridge (1723), 1 Stra. 557; Rex v. Cambridge. 26 USC 508 (c) (1) (a) Top case law with a recent occurrence in Washington state where a judgment was effected on a piece of real estate. The owner transferred the property to an existing corporation sole. The Corporation Sole sold the same, and enjoyed the benefit of the sale without attachment. Corporation soles are recognized in both the RCW of Washington state, ORS of Oregon state, Arizona statute, Utah statute, and so far research indicates that California and at least 28 other states recognize some form of “Corporation Sole” by statute. “Immunities and Privileges” enjoyed by Citizens of one state are protected and guaranteed by the U.S. Constitution to be in effect in all other states of the Union.

Corporate soles are known to have been in existence for over 800 years. Protected by the First Amendment Bill of Rights to the Constitution, The Ecclesiastical Corporation sole creates the “ meets and bounds” recognized now in civil law and American jurisprudence as provided for in 26 United States Code 508 (c) (1) (a). This is an “ exempt status” with no statutory reporting requirements such as in a 501 (c) (3), “ organization” which must apply for recognition and/or acknowledgment from the Internal Revenue Service, and file form 1023. An ecclesiastically organized Corporation sole can have mandatory exemption from any statutory or jurisdictional requirements, in respects to “ organizations” organized under section 501 (c), 26 USC (Internal Revenue Code). The Church, its auxiliaries, conventions and other non-secular activities are under no statutory definition or jurisdiction yet may still enjoy “ tax exemption” and “ tax deductible contributions.” Conclusion: The Corporation sole can have the unique advantage of both natural and legal fiction. It can hold property real and personal; it can bank and function in all areas of commerce; it can sue and be sued. Depended upon a particular need, it is an excellent vehicle in which to navigate the political ebbs and tides of commerce; and, to deal with the legal fiction of Governments and other artificial entities of mans creation. It enjoys perpetuity of succession (no inheritance tax); it enjoys, profits and controls all things for the benefit of the sole. But, more importantly, the Corporation sole is not only a legal entity but also a natural (corporate) and Lawful entity, as opposed to being an artificial and politically generated entity. It is a reminder (for the record) to the busy political state of an existing non-temporal arrangement that is antecedent to all earthly governments that is secured and protected by the First Amendment.

Arizona Revised Statutes http://www.azleg.state.az.us/ars/ars.htm

CHAPTER 42 - CORPORATE SOLE Article 1 - General Provisions 10-11901 - Purposes for which corporation sole may be formed 10-11902 - Requirements for formation 10-11903 - Articles of incorporation; amendment 10-11904 - Powers of corporation sole 10-11905 - Execution of instruments 10-11906 - Succession of title and authority 10-11907 - Succession of title to religious property held by person not incorporated as corporation sole 10-11908 - Officer; director; law applicable to corporations sole 10-3180 - Religious corporations; constitutional protections 10-11901. Purposes for which corporation sole may be formed Corporations may be formed to acquire, hold and dispose of church or religious society property for the benefit of religion, for works of charity and for public worship, and of property of scientific research institutions maintained solely for pure research and without expectation of pecuniary gain or profit, in the manner provided in this article. 10-11902. Requirements for formation A person vested with the legal title to property of a church or religious society in conformity with its constitution, canons, rites or regulations, and of a scientific research institution maintained solely for pure research and without expectation of pecuniary gain or profit, may make and subscribe to written articles of incorporation, acknowledge them as deeds are required to be acknowledged, file them in the office of the corporation commission and record a duplicate of the articles in the office of the county recorder of each county in which real property of the corporation is situated, together with an impression of the seal which it adopts. 10-11903. Articles of incorporation; amendment A. The articles of incorporation shall contain: 1. The name of the corporation. 2. The object of the corporation. 3. The estimated value of the property at the time of drawing the articles. 4. The title of the person executing the articles. B. The corporation may amend its articles. The amendment shall be executed by the same person who executed the original articles, or by his successor in office, and shall be filed and recorded as required for the original articles. 10-11904. Powers of corporation sole Upon executing and filing for record articles of incorporation as provided in this article, the person subscribing thereto and his successor in office by the name or title specified in the articles, shall thereafter be deemed a corporation sole with perpetual succession, and

may acquire and possess, by gift, bequest, devise or purchase, and hold property, sell, rent or otherwise dispose of such property, borrow money and give written security thereof, and secure payment thereof by mortgage or other lien. 10-11905. Execution of instruments All deeds and other instruments in writing shall be made and signed in the name of the corporation sole in the capacity designated in the articles. 10-11906. Succession of title and authority In the event of the death, resignation or removal of the person who is a corporation sole, his successor in office shall be vested with title to all property held by his predecessor as such corporation sole, with like power and authority over the property, and subject to all the liabilities and obligations with reference thereto. The successor shall file in the office of the corporation commission, and shall record in the office of the county recorder of each county in which any of the real property is situated, a certified copy of the commission, certificate or letter of election or appointment. 10-11907. Succession of title to religious property held by person not incorporated as corporation sole In case of the death, resignation or removal of a person who, at the time of his death, resignation or removal, was holding the title to property for the use or benefit of any church or religious society not incorporated as a corporation sole, the title to such property held by him shall not revert to the donor, nor vest in the heirs of the deceased person, but shall be deemed to be in abeyance after the death, resignation or removal until his successor is duly appointed to fill the vacancy. Upon appointment of a successor, the title to all property held by his predecessor shall at once, without any other act or deed, vest in the person appointed to fill the vacancy. 10-11908. Officer; director; law applicable to corporations sole A. The person comprising the corporation sole is the only director and officer for the corporation sole unless the articles or bylaws of the corporation sole contain a contrary designation. B. Corporations sole that are organized pursuant to this article are subject to chapters 24 through 40 of this title except to the extent this article modifies or differs from the provisions of chapters 24 through 40, in which case this article prevails. 10-3180. Religious corporations; constitutional protections If religious doctrine governing the affairs of a corporation organized primarily for religious purposes is inconsistent with the provisions of chapters 24 through 40 of this title on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the constitution of this state or both.

THE MODERN CORPORATION SOLE James B. O’Hara

In 1894, Sir Frederick Pollock asked his American friend Oliver Wendell Holmes.

“Have you such a thing as a corporation sole still about you? “ The future Justice replied, “I don’t know of any corporation sole.”1

I. INTRODUCTION Blackstone begins his treatment of corporations with the following classification:

The first division of corporations is into aggregate and sole.. Corporations 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.” 2

He then proposes two conspicuous examples of corporations sole, one civil (“ the king is a sole corporation” ); the other, ecclesiastical (“ so is a bishop…. and so is every parson and vicar” ).3 In the period prior to the rise of the modern business corporation and the legal evolution and development that accompanied it,4 the corporation sole was a fixture in every tier of English society. The corporation sole was as distant from the ordinary peasant and tradesman as the Crown, but as the parish clergy. A modern Holmes attempting a reply to a modern Pollock might initially be perplexed, since the usual sources of ready reference suggest two contradictory conclusions. On the one hand, the sources indicate the corporation sole is “ not common,” “ almost obsolete,” 5 or “ obsolescent.” 6 The standard casebooks and hornbooks of corporation and property law do not usually treat the topic.7 Cases cited in legal literature are often very old, and the only full-length journal article devoted exclusively to the subject is from the turn of the century.8 At least one author equates it with the modern “ one-person” corporation,9 although the two have completely distinct origins.10 On the other hand, further research reveals functioning corporations sole in at least one-half of the states, with explicit statutory provisions for corporations sole in about a third. In many jurisdictions, this is the manner of incorporating Roman Catholic dioceses, or more

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 intercangeable, 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 § 52 (rev. perm. Ed 1983). 7 An exception is H. HENN & J. ALEXANDER LAWS OF CORPORATIONS § 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, ORGANIZAITONS, 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.

accurately, the bishops of those dioceses.11 From this perspective, the corporation sole is a useful, even commonplace, legal reality. The apparent discrepancy is not real. The old common law corporation sole, which was transported to American shores in colonial days, is indeed almost dead. However, a modern version, which bears the same name, has evolved and is widely used today.12 The transformation from the old to the new is a fascinating story, well worth the telling. The present study proposes: 1) to define the classic common law corporation sole; 2) to trace its development in America; and 3) to describe the present status of the corporation sole in the United States with analysis of its modern forms. The emphasis will be fundamentally American, with English sources serving as points of reference and prologue. Moreover, the English side of the story has already been told.13

II. THE “OLD” COMMON LAW CORPORATION SOLE

“ Legal nomenclature is for once its own interpreter. A member of a corporation sole is

one of a series of single persons succeeding one another in some official position.” 14 The crux of this description is not that the corporation sole is composed of a single person. Rather, it is really composed of a number of persons who, one after another, hold the same office. The really crucial element of this definition is the series itself and the seriatim succession. For example, Queen Elizabeth II, as corporation sole, is identical to Victoria; the present Archbishop of Canterbury in his corporate form is one with his predecessors, Laud, Benson or Lang.15 The corporation sole, unlike its business counterpart, is only vertical in time. “ There are very few points of corporation law applicable to a corporation sole,” according to Kent.16 There are, however, four legal characteristics unique to it:

1. All corporations’ sole are “ either public officers or dignitaries of the established

church.” 17 In short, the corporation sole is the incorporation of an office. 2. At common law, the corporation sole can claim title to real property only.18 3. Property and powers of a corporation sole are transferred on the death of an incumbent

to successors in the office, not to heirs or through executors.19 4. The corporation sole lacks the usual trappings of a corporation. It does not have a

board of directors, officers, stock, by-laws, official minutes, seal, or corporate name.20 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 dioceian 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 RecentCases]. 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).

The older corporations sole are also devoid to royal charter or other formal authorization, characteristics that are required in later corporations.21

Historically, both the king and a variety of clergy qualified as corporations in their

official capacities. However, the ecclesiastical form is older, dating to the mid-fifteenth century.22 Initially, the corporation sole grew out of the efforts of judges to solve title problems that arose from the passage of real property to a church. Although the early common law of property was elaborate and intricate, it sometimes lacked the sophistication to deal with these problems. At that time, legal forms did not exist that allowed the devise of real property to a church in fee simple absolute.

The law struggled with this problem in amusing ways. For example, property was sometimes devised to the saint after whom a parish was named, or to the four walls of a church building. Under these circumstances, the local bishop or priest was the agent or administrator. Therefore, it was only a short leap in logic to incorporate the agent.23

The hierarchical polity of the English church was well suited to this type of corporate structure. However, it was still another one hundred fifty years before a civil corporation sole appeared when Lord Coke ascribed coporateness to the crown.24 Blackstone confidently called this development uniquely English.25 In one sense, he is correct, but modern scholarship also finds a powerful Roman Catholic Canon Law influence on the process.26

For all its singularity, the sole corporation had many detractors. In fact, Maitland and Pollock particularly thought it was an anomaly, a "“ strange conceit,” a “ juristic abortion,” 27 an “ unhappy freak of English law,” 28 and a “ useless figment of shreds and patches.” 29

Some of the criticism came from theorists who objected to the philosophical underpinnings of the fictitious personality of the corporation sole.30 But practical problems were also evident. The courts accepted some officers as corporations, yet resisted the corporate claims of others similarly situated.31 This inconsistency may explain why the corporation sole was not widely extended to other civil officers.

Other practical questions were also raised. What claims on corporate property might arise from the heirs of deceased incumbent? What limits on fraudulent transfer by a dishonest incumbent? Is a separate accounting required for the incumbent as corporation and as a private person? Is there a quasi-fiduciary relationship between the corporation sole and his successors?

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.

Added to these questions are several other crucial problems: What happens to the corporation during the illness or absence of the incumbent; and who manages the property, and with what legal force, during an interregnum? These practical considerations were more difficult than the theoretical questions. Yet for all the inconsistency of application and the eccentricity of the concept, the corporation sole has endured in some form for more than five centuries. III. TRANSITION FROM “OLD” TO “NEW”

“ At a very early period the religious establishment of England seems to have been adopted in the colony of Virginia, and, of course, the common law upon that subject, so far as it was applicable to the circumstances of that colony.” 32 Justice Story went on to count the corporation sole as among the “ general rights” of the Episcopal Church “ growing out of the common law.” 33 After the revolution, “ the Episcopal Church no longer retained its character as an exclusive religious establishment,” 34 but the Supreme Court still recognized the rights of the parson as a corporation sole to continue in full force.35

After the Declaration of Independence, early case law indicated that the corporation sole lived on. However, sometimes it was found in its pure common law form, other times in a variant form.36 In New England, title to the real property of territorial parishes was occasionally vested in the resident clergyman.37 In the South the Episcopal glebe was usually held by the minister-in-charge (whatever his title), just as in England.38 “ The most numerous group of private corporations in the colonies comprises those which were concerned with religious worship.” 39

The corporation sole, however, applied only to the clergy of the churches that were or had been legally and formally established.40 In another early opinion written by Justice Story, the Supreme Court voided a royal grant of land to the Episcopal Church in New Hampshire. The decision was based on the grounds that no one was legally competent to accept title, since that state had never had an established church, even in colonial days.41

The link with church establishment sealed the fate of the common law corporation sole in America. The first amendment technically did not require states to disestablish a church. By implication, however, establishment was doomed by the Bill of Rights and without religious establishment, the rights of establishment were moot.42

The civil form of the corporation sole never really took hold in the United States. The king was the most obvious civil corporation sole in colonial days. After the Revolution, however, only a few minor officers in some states were accorded a corporate identity: probate judges43, and town supervisors44. The governor of a state was regarded as a corporation only in 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).

Tennessee45. For the most part, the powers and duties of public officers were adequately defined by statute. Incorporation was not necessary to guarantee bonds or contracts46, or to continue lawsuits47.

Beginning in the first half of the nineteenth century, however, new social and religious forces gave a revived impetus to the sole corporation. The chief thrust came from a most unlikely source. When John Carroll was chosen as the first Roman Catholic bishop in the United States in 1789, gaining secure title to the property of his church in the various states and territories was one of his most pressing tasks. This task was by no means easy.

Roman Catholicism had no legal standing in England, and its position in the new nation was awkward. Although Catholicism shared the fruits of the first amendment, it had a structure that many Americans judged to be autocratic and monarchical. At that time, congregational ownership of church property was natural to many denominations in America, but was contrary to long-established Roman Catholic policy.

Sometimes, for want of a better method, church property was held in fee simple by the local priest or by a pious layman. This system, however, led to endless difficulty. There was a constant fear that church property held in a private name might be claimed by a relative of the holder. Worse yet, the possibility existed that some unworthy claimant with a plausible story could make out a case for ownership. In one lawsuit, an unfrocked priest claimed to be heir to land that a deceased predecessor had purchased to build a church48.

Bishop Carroll won that suit, but for the next seventy years the Roman Catholic hierarchy struggled to find a legally sufficient and canonically suitable manner for its church to own property. Vesting title in a board of elected or appointed trustees was one obvious possibility. In fact, that is the way Carroll originally incorporated in Maryland49. But “ trusteeism” itself became an issue when the trustees in some areas used their property ownership to pressure the bishops in doctrinal or disciplinary disputes50.

The internal problems of the Catholic Church were exacerbated and complicated by the rise of a national social and political phenomenon called the “ Know-Nothing” movement51. In addition to their many other objections to Catholicism, these opponents had particular objections to control of church on this issue52. The bishops battled back, in what they saw as a defense of the doctrine and practice of their religion against bigots on the outside and recalcitrant on the inside. Over time, the corporation sole became a major weapon53.

Beginning in 1829, a series of national bishops’ meetings was held to address the problems of Catholicism in America. Invariably, property problems were on the agenda54.

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 § 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.

Soon after the first of these gatherings, Archbishop Whitfield of Baltimore sought a charter in the form a corporation sole from the Maryland General Assembly. In 1832, it was granted55.

The link between Roman Catholicism and the legal concept of a corporation sole was surprising for two reasons. First of all, in England, this mode of incorporation was limited to the Anglican Church56. In fact, the Roman Catholic hierarchy was not reinstated in England until 185057. Second, Catholic Canon Law did not envision a one-person corporation. The minimum number required to constitute a “ collegiate moral person” was three58. Even the Pope was not a corporation sole59. Even though bishops of dioceses have great autonomy in church law, favorable action by a board of consultors is still required on major property decisions to this day60.

As Roman Catholicism spread geographically and grew in numbers in the last decade of the nineteenth century, new dioceses were created as new areas of the country were settled. Where they could, the bishops incorporated as corporations sole61. In some states, this required a private act of special incorporation; in others, a general incorporation statute was utilized.

The effort was not successful everywhere. On at least one occasion, a legislature defeated a bishop’s request for sole incorporation on the grounds that Catholicism would thus acquire a legal right not held by other religious denominations62. Slowly, Roman Catholics won the battle for their church to be incorporated in a manner consistent with church polity63. During this struggle, the old common law corporation sole was gradually transformed. There was no longer any link with an established church. Although legislative action was often the result of activity by one church, the laws passed were usually broad enough for others.

In the courts, judges began to require specific legislative authorization for a corporation sole. The common law was not invoked to create sole corporations in states where the legislature had not acted64. Finally, at the beginning of this century, the Supreme Court, in an opinion by Justice Holmes, Confirmed what was already an almost universal judicial stance: “ Apart from statute the law does not recognize the bishop as a corporation sole…” 65

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).

The transformation of the corporation sole from its common law form to a legislative format, however subtle, created something altogether new. Zollmann, writing in 1915, called it “ a new form…. Vigorously flourishing” 66 and “ American in the true sense of the world.” 67 The tide had turned. Momentum to secure the property rights of the Roman Catholic Church a century ago left permanent traces in modern American law. Today at least thirty states have a corporation sole in one form or another. IV. THE CORPORATION SOLE IN STATUTORY FORM

Seventeen states explicitly68 recognize the corporation sole under statutory law, often in a special section for nonprofit corporations or in a section on religious societies69. At least eight other jurisdictions have at least one corporation sole created under special or private charter, sometimes dating to a time before the passage of a general incorporation statute70.

To understand the corporation sole under both of these categories, a method of analysis will be useful. For states that recognize the corporation sole under general law, California’s statutes can serve as a comparative model. For the states with special or private acts of incorporation, Maryland’s private charter for the Archbishop of Baltimore is a useful example.

The California legislation dates to 187771, and comprises part 6 of the title division on nonprofit corporations. Some sections are technical, and relate to filing provisions, applicability to corporations organized prior to the implementation of the law, and procedures for voluntary dissolution72. The key sections are those dealing with who may incorporate, the corporate powers, and the questions of vacancy and succession.

The California statutory system indicates that a corporation sole may be formed by a “ bishop, chief priest, presiding elder, or other presiding officer of any religious denomination, society, or church.73” The corporate powers specified in the California law are comprehensive. In California, a corporation sole may:

(a) Sue and be sued, and defend, in all courts, and places, in all matters and

proceedings whatever. (b) Contract in the same manner and to the same extent as a natural person, for the

purposes of the trust.

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. § 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 § 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. § 615 (1982); OR. REV. STAT. § 61.055(1)-(3) (1983); S.C. CODE ANN. § 33-31-140 (Law. Co-op. 1976); UTAH CODE ANN. §§ 16-7-1 to12 (1973); WASH. REV. CODE ANN. §§ 24.12010-.040 (1969); WYO. STAT. §§ 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 §§ 10000-10015 (West 1977). Filing procedures: Id. at §§ 10003-10005: applicability to earlier corporations: Id. at §§ 10000 to 10001; dissolution: Id. at §§ 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. § 10.40.060 (1985); ARIZ. REV. STAT. ANN. §§ 10-421 to 422 (1977).

(c) Borrow money, and give promissory notes thereof, and secure the payment thereof by mortgage or other lien upon property, real or personal.

(d) Buy, see, lease, mortgage, and in every way deal in real and personal property in the same manner that a natural person may, without the order of any court.

(e) Receive bequests and devises for its own use or upon trusts to the same extent as natural persons may, subject, however, to the laws regulating the transfer of property by will.

(f) Appoint attorneys in fact74. The most complex issue regarding the old corporation sole was that of continuing

operation during a vacancy in the office. California deals with this issue in two ways: 1) at the time of incorporation, the manner of filling a vacancy is to be specified75, and 2) the law makes clear that the corporation has perpetual existence even during a vacancy76.

In contrast with the common law corporation sole, the California statute, like almost all its modern counterparts, is far more precise. A comparison will be useful. The common law or “ old” corporation sole applied to some unspecified officers, and not to others of similar origin. The statutory or “ new” corporation sole, in contrast, applies to those who are designated at the time of their incorporation. The old corporation sole was “ in abeyance” at the time of a vacancy, whereas the new corporation sole could hold title to real estate only, and alienation of the property was difficult and legally questionable. The new corporation sole has the same power over its property as any other corporation, and is not limited in the type of property it can own. In short, the new statutory corporation sole removes the vagaries of the old.

Private charters have a parallel history and similar content. The Maryland legislation incorporating the Archbishop of Baltimore dates to 1832. The law permits church property held by trustees to be deeded to the Archbishop and his successors. However, such property is limited to two acres, must be real property, and can only be used for a church, parsonage, or burial ground77.

In 1868, the Maryland legislature amended the act. The acreage designation was enlarged to five acres, and “ school house” was added to the list of uses78. Up to this point, the Maryland law did not mention the alienation of property. A later amendment, in 1874, granted the power “ to dispose of, lease, sell and convey from time to time…. To the same extent, [as] any private person or other corporate body79.”

Two subsequent amendments completed the law. In 1894, the restriction to real property was removed. The Archbishop, as a corporation sole, was given the power to exercise rights over property “ real, person or mixed80.” Finally, in 1927, the acreage restriction was completely removed81.

This original 1832 legislation, with its four amendments, remains the charter of the Archbishop of Baltimore as corporation sole. No further change can now be made, because the Maryland code prohibits the General Assembly from amending the charter of a religious

74 CAL. CORP. CODE § 10007 (West 1977). A few other states add the power to have a corporate seal. See e.g. NEV. REV. STAT. § 84.050 (1985). 75 CAL. CORP. CODE § 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.

corporation even if it was previously incorporated by special act82. Furthermore, the code now contains modern provisions for subsidiary or separate Roman Catholic Corporations83.

The contrast between the California and Maryland laws is very apparent. The California legislation consists of more formal and highly structured general statutes, whereas the Maryland private charter is rather informal, the product of patchwork amendment. The California code carefully establishes a process for creating or dissolving a corporation sole, whereas the Maryland law barely goes beyond the simple statement that a corporation is deemed to exist. Clearly, the general statutes represent a later stage in the evolutionary process.

Although differences exist, the corporations sole created under general corporation laws and those established by special acts or private charters have several common features. They both deserve to be classified under the heading of “ new” or “ modern” corporations sole, because both are more than merely modes of holding title property. Both are meant to provide a framework for the operation of continuing concern. They are also both meant to provide a structure for the planning, financing, direction and management necessary for an organization existing and working in a sophisticated business environment.

The Achilles heel of the “ old” corporation sole was that the corporation itself was a person holding an office. When the incumbent died, the common law could only hold the corporate life and activity in suspension, or “ abeyance” , until the office was filled again. In regard to the “ old” corporation sole, Maitland said, “ Our corporation sole is a man who dies84.” Carr added, “ That is the difficulty. The artificial personality of the corporation is not strong enough to compel us to ignore the natural personality of the sole incorporator. The office has not been completely personified if the death of the office holder can cause such a deadlock85.”

The modern corporation sole, created under legislative auspices, solves the succession problem quite satisfactorily in one of two ways. Either a specified structure of continuing operation is created statutes, as in California86, or the statutes specify some external set of canons, practices or rules to deal with an interregnum, as in Maryland87.

The fact that the modern American corporation sole works satisfactorily is, perhaps, best illustrated by the relative absence of recent cases carried to the appeal level88. Corporate structure is seldom at issue, but the cases tend to run the gamut: torts89, contract90, civil procedure91, piercing the corporate veil92, workman’s compensation93, taxation94, eminent

82 MD. CORPS. & ASS’NS CODE ANN. § 5-513 (1985). 83 Id. at §§ 5-314 to 320. 84 Maitland, supra note 24, at 145. 85 C. CARR, supra note 14, at 32-33. 86 CAL. CORP. CODE § 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 simpie 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 Comm’n, 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).

domain95, estates96 and simple fraud97. Property disputes are relatively rare, perhaps because there would be first amendment implications for most corporations sole98.

The corporation sole seems to have a settled existence. There has been no rash of new legislation, nor have there been any repeals of earlier laws. V. SPECIAL CIRCUMSTANCES

Eight additional states have circumstances meriting comment. The constitutions of Virginia and West Virginia specify that no charter of incorporation can be granted to any church or religious denomination99. At least one commentator attributes this prohibition to the influence of Thomas Jefferson and James Madison100. Although the tradition of church-state separation in Virginia may indeed be traced to the two former presidents, the constitutional provision in Virginia dates to 1851101, long after the deaths of both102.

The West Virginia courts have acknowledged that the provision in that state is descended from Virginia103. While these constitutional provisions pose no problems to the titles of church property in either state, they obviously preclude a corporation sole104. An article in the Kansas constitution, which required title to property of religious corporations to be vested in elected trustees, was repealed in 1974105.

Connecticut has a provision in its corporation code that gives the local archbishop or bishop special powers in trust if a Catholic parish corporation violates or surrenders its charter106. The courts have interpreted this provision to mean that, if a charter is surrendered, “ all the property vests in the bishop and his successors, as a corporation sole107.” This section provides emergency powers that are not normally required.

Oklahoma allows for trust succession in the name of an ecclesiastical office108. Vermont, in contrast, specifically forbids any such succession109.

Finally, case law in Arkansas and Florida also deserves attention. The Supreme Court of Arkansas, in dicta, has recognized the Roman Catholic Bishop of Little Rock as a corporation sole without any special act of the legislature110. The Florida situation is even more unique. The Supreme Court of Florida has repeatedly held that the common law corporation sole is in full force in Florida111. The court relies on the fact that the common law has been adopted in Florida and remains in force unless expressly or impliedly repealed by organic or

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, § 14(20): W.VA. CONST. Art 6, § 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, § 3 (repealed 1974). 106 CONN. GEN. STAT. ANN § 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 § 563 (West 1986). 109 VT. STAT. ANN. Tit. 27, § 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, § 6 (1978).

statutory law. This unique position initially attracted journal comment112, perhaps because it seemed contrary to the earlier United States Supreme Court position113. VI. A FEDERAL CORPORATION SOLE

Only rarely has there been mention of a federal charter for a religious or quasi-religious organization114. When Congress voted, in 1811, to incorporate an Episcopal church in the District of Columbia, President Madison vetoed it115. In his veto message, the President implied that a charter of incorporation was in some sense an approval of a religion, in violation of the Constitution.

More than a century later when incorporation was so common, the Congress and the President took another view. In 1948, the Vatican completely served the Archdiocese of Washington from the Archdiocese of Baltimore. The new Archbishop of Washington, with the help of President Truman, sought to have a corporation sole established as a framework for the new ecclesiastical territory116. Congress complied by passing a private law that established the Archbishop of Washington and his successors as a corporation sole117. VII. A YET MORE MODERN FORM?

A number of authorities warn against confusing the corporation sole with the modern one-person corporation118. In fact, courts have held that a stock corporation is not automatically transformed into a corporation sole simply because one person has purchased all of the stock119.

It is possible, however, to structure a one-person corporation in such a way that it closely resembles a corporation sole in operation. In fact, the Roman Catholic Diocese of Wilmington is so structured under the general corporation laws of Delaware120. The Wilmington diocese is not incorporated under the terms of the Delaware Code for Religious Societies and Corporations121. Rather, the diocese is incorporated under the General Corporation Law, which already contains provisions for a board of one, for non-stock operation, and for formation of a close corporation122. By carefully writing the by-laws, and by addressing the problems of succession, the Roman Catholic Diocese of Wilmington has fashioned a corporation that contains all the advantages of the corporation sole in a state that has no regular provision for one123.

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 § 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, §§ 115-17 (1975). 122 The General Corporation Law of Delaware is found in DEL. CODE ANN. Tit 8, §§ 101-398 (1984 & Supp. 1986). The number of directors is treated in § 141: section 242 deals with non-stock corporations: and Subchapter XIV, beginning with § 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).

VIII. SUMMARY

From its quaint beginnings in English law, the corporation sole has established a modest, yet solid, foothold in the United States. To churches with a hierarchical structure, and particularly to the Roman Catholic Church, it has been a secure method for both ownership of property and daily operation124. In a society characterized by religious and ethnic pluralism, the corporation sole has provided a useful legal option, well adapted to the needs of certain groups. The corporation sole has, arguably, made a greater contribution in the United States than in its native land. The corporation sole is destined to be a continuing part of American law for years to come.

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.

62 STAT. 80TH CONG., 2ND SESS.—CHS. 355 -- May 25, 29, 1948 1361

[CHAPTER 355]

AN ACT May 29, 1948

To incorporate the Roman Catholic Archbishop of Washington a corporation sole H.R. 6203 [Private Law319]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Patrick A. O'Boyle, Roman Catholic Archbishop of Washington, and his successors in office, in accordance with the discipline and government of the Roman Catholic Church, hereby is created and declared to be a corporation sole.

Roman Catholic Archbishop of Washington, Incorporation

SEC. 2. The corporation- Powers.

A. shall have perpetual succession ;

B. may contract in the same manner and to the same extent as a natural person and may sue and be sued;

C. may have and use a corporate seal and may alter and change the same at pleasure;

D. may acquire real and personal property by purchase, devise, bequest, gift, or otherwise, and hold, own, use, lease, assign, convey, or otherwise dispose of the same in like manner and to the same extent as a natural person;

E. may borrow money, issue notes or other negotiable paper, and secure the money borrowed by mortgage or by deed of trust, on said real or personal property or any part thereof;

F. and may perform such other acts in the furtherance of the objects and purposes of the corporation that are not inconsistent with the Constitution of the United States or the laws in force in the District of Columbia.

SEC. 3. The objects and purposes of the corporation shall be religious, charitable, and educational.

SEC. 4. In the event that a vacancy should occur in said archbishopric and an administrator shall be elected or appointed in accordance with the discipline and government of the Roman Catholic Church, such administrator shall, until the installation of a successor archbishop, be authorized to do and perform all acts which the corporation is authorized to do and perform. The election or appointment of such administrator shall be evidenced by a certificate signed by the Chancellor of the Archdiocese of Washington, duly acknowledged and filed with the Recorder of Deeds of the District of Columbia.

Vacancy.

SEC.5. Nothing contained in this Act shall be construed as changing any law relating to taxation or exemption from taxation of any real or personal property.

SEC. 6. The right to alter, amend, or repeal this Act is hereby expressly reserved. Rights reserved.

Approved May 29, 1948.

Top of Form

GREGORY

v. HELVERING, COMMISSIONER OF INTERNAL REVENUE�

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.�

Mr. Hugh Satterlee, with whom Messrs. George W. Saam, Rollin Browne, and Charles A. Roberts were on the brief, for petitioner.�

Solicitor General Biggs, with whom Assistant Attorney General Wideman and Messrs. Sewall Key and Norman D. Keller were on the brief, for respondent.�

By leave of Court, briefs of amici curiae were filed by Messrs. Ellsworth C. Alvord and Edward H. McDermott, and by Messrs. Albert E. James, A. Calder Mackay, George M. Morris, Willis D. Nance, Charles B. Rugg, Whitney North Seymour, and Harry N. Wyatt, in support of petitioner’s contentions.�

Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts, Cardozo�

Author: Sutherland�

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.�

Petitioner in 1928 was the owner of all the stock of United Mortgage Corporation. That corporation held among its assets 1,000 shares of the Monitor Securities Corporation. For the sole purpose of procuring a transfer of these shares to herself in order to sell them for her individual profit, and, at the same time, diminish the amount of income tax which would result from a direct transfer by way of dividend, she sought to bring about a "reorganization" under 112 (g) of the Revenue Act of 1928, c. 852, 45 Stat. 791, 818, set forth later in this opinion. To that end, she caused the Averill Corporation to be organized under the laws of Delaware on September 18, 1928. Three days later, the United Mortgage Corporation transferred to the Averill Corporation the 1,000 shares of Monitor stock, for which all the shares of the Averill Corporation were issued to the petitioner. On September 24, the Averill Corporation was dissolved, and liquidated by distributing all its assets, namely, the Monitor shares, to the petitioner. No other business was ever transacted, or intended to be transacted, by that company. Petitioner immediately sold the Monitor shares for $133,333.33. She returned for taxation as capital net gain the sum of $76,007.88, based upon an apportioned cost of $57,325.45. Further details are unnecessary. It is not disputed that if the interposition of the so-called reorganization was ineffective, petitioner became liable for a much larger tax as a result of the transaction.�

The Commissioner of Internal Revenue, being of opinion that the reorganization attempted was without substance and must be disregarded, held that petitioner was liable for a tax as though the United corporation had paid her a dividend consisting of the amount realized from the sale of the Monitor shares. In a proceeding before the Board of Tax Appeals, that

body rejected the commissioner’s view and upheld that of petitioner. 27 B. T. A. 223. Upon a review of the latter decision, the circuit court of appeals sustained the commissioner and reversed the board, holding that there had been no "reorganization" within the meaning of the statute. 69 F.2d 809. Petitioner applied to this court for a writ of certiorari, which the government, considering the question one of importance, did not oppose. We granted the writ.�

Section 112 of the Revenue Act of 1928 deals with the subject of gain or loss resulting from the sale or exchange of property. Such gain or loss is to be recognized in computing the tax, except as provided in that section. The provisions of the section, so far as they are pertinent to the question here presented, follow:�

"Sec. 112. (g) Distribution of stock on reorganization. -- If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation, no gain to the distributee from the receipt of such stock or securities shall be recognized. . . .�

"(i) Definition of reorganization. -- As used in this section . . .�

"(1) The term ’reorganization’ means . . . (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, . . ."�

It is earnestly contended on behalf of the taxpayer that since every element required by the foregoing subdivision (B) is to be found in what was done, a statutory reorganization was effected; and that the motive of the taxpayer thereby to escape payment of a tax will not alter the result or make unlawful what the statute allows. It is quite true that if a reorganization in reality was effected within the meaning of subdivision (B), the ulterior purpose mentioned will be disregarded. The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. United States v. Isham, 17 Wall. 496, 506; Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-6; Jones v. Helvering, 63 App. D.C. 204; 71 F.2d 214, 217. But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended. The reasoning of the court below in justification of a negative answer leaves little to be said.�

When subdivision (B) speaks of a transfer of assets by one corporation to another, it means a transfer made "in pursuance of a plan of reorganization" [ 112(g)] of corporate business; and not a transfer of assets by one corporation to another in pursuance of a plan having no relation to the business of either, as plainly is the case here. Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? Simply an operation having no business or corporate purpose -- a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and

accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. No doubt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.�

In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted according to the terms of subdivision (B), was in fact an elaborate and devious form of conveyance masquerading as a corporate reorganization, and nothing else. The rule which excludes from consideration the motive of tax avoidance is not pertinent to the situation, because the transaction upon its face lies outside the plain intent of the statute. To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.�

Judgment affirmed.�

69 F.2d 809, affirmed.�

26 U.S.C. 501(c)(3) v. 26 U.S.C. 508(c)(1)(A) source: www.gpo.gov

Sec. 501. - Exemption from tax on corporations, certain trusts, etc. (a) Exemption from taxation, an organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503. (c) List of exempt organizations; The following organizations are referred to in subsection (a):

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual1, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

Sec. 508. - Special rules with respect to section 501c3 organizations (a) New organizations must notify Secretary that they are applying for recognition of section 501(c)(3) status Except as provided in subsection (c), an organization organized after October 9, 1969, shall not be treated as an organization described in section 501(c)(3) - (c) Exceptions

(1) Mandatory exceptions: Subsections (a) and (b) shall not apply to - (A) churches, their integrated auxiliaries, and conventions or associations of churches, or (B) any organization which is not a private foundation (as defined in section 509(a)) and the gross receipts of which in each taxable year are normally not more than $5,000.

1 Propaganda. 1. The systematic dissemination of doctrine, rumor, or selected information to promote or injure a particular doctrine, view, or cause. 2. The ideas or information so disseminated. Black’s Law Dictionary seventh edition

SEC. 6033. - RETURNS BY EXEMPT ORGANIZATIONS (a) Organizations required to file

(1) In general Except as provided in paragraph (2), every organization exempt from taxation under section 501(a) shall file an annual return, stating specifically the items of gross income, receipts, and disbursements, and such other information for the purpose of carrying out the internal revenue laws as the Secretary may by forms or regulations prescribe, and shall keep such records, render under oath such statements, make such other returns, and comply with such rules and regulations as the Secretary may from time to time prescribe; except that, in the discretion of the Secretary, any organization described in section 401(a) may be relieved from stating in its return any information which is reported in returns filed by the employer which established such organization. (2) Exceptions from filing

(A) Mandatory exceptions Paragraph (1) shall not apply to - (i) churches, their integrated auxiliaries, and conventions or associations of churches, (ii) any organization (other than a private foundation, as defined in section 509(a)) described in subparagraph (C), the gross receipts of which in each taxable year are normally not more than $5,000, or (iii) the exclusively religious activities of any religious order.

COUNTY OF SAN LUIS OBISPO, PLAINTIFF AND APPELLANT, v.

DELMAR ASHURST ET AL., DEFENDANTS AND RESPONDENTS�

Superior Court of San Luis Obispo County, No. 46419, William R. Fredman, Judge.�

James B. Lindholm, Jr., County Counsel, and John Paul Daly, Deputy County Counsel, for Plaintiff and Appellant.�

Raymond L. Girard for Defendants and Respondents.�

Opinion by Gilbert, J., with Stone, P. J., and Abbe, J., concurring.�

Plaintiff County of San Luis Obispo (hereafter the County) appeals from a minute order of September 3, 1981, denying a writ of execution against real property allegedly owned by judgment debtors Delmar and Mollie Juanita Ashurst.�

We conclude that the real property is not subject to execution sale to satisfy the obligations of the individual judgment debtors since title to the parcels of real property against which the County sought execution is held not by Delmar Ashurst or his wife, or both, but by the Office of the Presiding Apostle of Roandoak of God, a corporation sole.�

In November 1975, the County filed a complaint in municipal court against the Ashursts for $2,428.02 for medical expenses incurred by Mollie Ashurst at San Luis Obispo County General Hospital. In January 1976, the County filed an amended complaint in which it alleged that Delmar and Mollie Ashurst were indebted to the County for medical services valued at $10,605.62. Delmar Ashurst admitted by answer that the services were rendered in the amount alleged but asserted that liability for payment rested with Medi-Cal. The matter was transferred to superior court on February 3, 1976.�

On February 9, 1978, Delmar Ashurst filed articles of incorporation for "the Office of the Presiding Apostle of Roandoak of God, a corporation sole." By deeds recorded February 10, 1978, Delmar Ashurst transferred various parcels of real property to himself, the "Office of the Presiding Apostle of Roandoak of God, a corporation sole." On April 13, 1978, the articles were amended to change the name of the corporation sole to simply Roandoak of God.�

On February 10, 1978, the County obtained an order for summary judgment against the individuals Delmar and Mollie Ashurst in the amount of $10,605.62 with 7 percent interest from October 4, 1975. The total judgment was $12,385.22 including interest as of that date. This judgment was filed November 1, 1978, and was later vacated for reasons not here relevant.�

On May 23, 1979, the County filed an amendment to the amended complaint, increasing the amount of the damages because Mollie Ashurst had again been a hospital patient. In this complaint the County sought an additional $1,032.50 for services on August 31, 1978. The County alleged that on February 9, 1978, Delmar Ashurst transferred all of his

personal assets to himself as a corporation sole for the purpose of defrauding his creditor, the County. On September 20, 1979, the County took the deposition of Delmar Ashurst and elicited information relating to the conveyances of real property and the organization and operation of the corporation sole. Delmar Ashurst admitted he is Roandoak of God.�

On October 28, 1980, the court entered a money judgment in the sum of $11,538.12 jointly and severally against Delmar Ashurst and Mollie Juanita Ashurst pursuant to stipulation of the parties. No further proceedings were conducted and no ruling was made on the issue of fraud.�

After judgment was entered, the County applied for a writ of execution against certain parcels of real property allegedly owned by the Ashursts. The writ was denied by the court on September 3, 1981. The County has appealed from the order denying the writ.�

The County contends that the trial court erred in denying the writ on the basis that the title stood not in the name of the Ashursts as individuals but in the name of Roandoak of God, a corporation sole. It appears that the County’s ground for alleging error is that despite the status of title Delmar Ashurst is the alter ego of Roandoak of God and the assets of that corporation are in fact the assets of the presiding officer.�

The issue, as defined by the trial court, "is whether the assets of a 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. 288 [21 P. 830].) California by statute has legitimized this tradition and regulates the formalities attendant upon the creation and continued existence of the corporation sole. (Corp. Code, 10000 et seq.) One principal purpose of the corporation sole is to insure the continuation of ownership of property dedicated to the benefit of a religious organization which may be held in the name of its titular head. Title will not then be divested or passed to that person’s heirs upon his 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: "Corporations 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 sole corporation; so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or 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 glebe, 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 his spiritual care of the inhabitants, and with intent that the same emoluments should ever

afterwards continue as a recompense for the same 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.)�

Under the authorities there is a severability of title and ownership as between the unincorporated religious organization and the individual officeholder as the corporation sole. (Estate of Zabriskie (1979) 96 Cal. App. 3d 571, 576 [158 Cal. Rptr. 154].) There is also a clear distinction between the corporation sole and the individual who happens to be the current office holder. (Archbishop v. Shipman, supra, 79 Cal. 288.) Once title to real property vests in the office holder as corporation sole it passes not to his heirs but to the successors to his office by operation of law. (Corp. Code, 10008.) The assets must remain with the religious organization thenceforth (Corp. Code, 10015) and although the corporation sole may deal with the assets and contract in the same manner as a natural person, he does so only for the purposes of the trust (Corp. Code, 10007). Since the corporation sole is the incorporation of the titular head or presiding officer of a religious organization, it operates without directors or members except the current holder of the office. (See, e.g., Estate of Zabriskie, supra, 96 Cal. App. 3d at p. 576.)�

The County does not contest the validity of the creation of the corporation sole Roandoak of God by Delmar Ashurst and no defect therein is apparent from the record. This being true, the possession of the real property by Delmar Ashurst is deemed to be the possession of the corporation sole. (Archbishop v. Shipman, supra, 79 Cal. 288.) The powers of the corporation sole to administer the property are extensive and almost unfettered except for the qualification that the property must be used for the purposes of the office. (Corp. Code, 10007.)�

The Zabriskie decision, supra, does not support the County’s position that because Delmar Ashurst controls the corporation sole and its assets, the corporation and its property must be subject to his individual debts. In that case Zabriskie by will left property to Roandoak of God, an unincorporated Christian association, provided it incorporate as a nonprofit organization within 180 days. The appellate court concluded that Delmar Ashurst as head of the religious group was a corporation sole. This did not fulfill the criteria for incorporation of the association since the regulations pertaining to nonprofit corporations are quite separate and distinct.�

Since the assets of the individual currently holding office, in this case Delmar Ashurst, are not the assets of the corporation sole, and vice versa, each is subject to separate accountability. The creditors of the corporation sole may not look to the assets of the

individual holding office, nor may the creditors of the individual look to the assets held by the corporation sole.�

Here, there was no showing that property was fraudulently conveyed to the corporation sole, or that the corporation sole improperly used the property against its beneficial interest. Therefore, the application for a writ of execution against the property to satisfy the individual debts of Delmar or Mollie Juanita Ashurst was properly denied.�

The judgment (order) appealed from is affirmed.�

Daniel Weston versus Moses Hunt. [NO NUMBER IN ORIGINAL]

SUPREME COURT OF MASSACHUSETTS, CUMBERLAND 2 Mass. 500; 1807 Mass. LEXIS 145;Tyng 500

May, 1807, Decided PRIOR HISTORY: In this action the plaintiff demands possession of a lot of land in the township of Gray, in this county, which he alleges was, in the original division of the township, appropriated to the use of the minister of Gray for the time being; that he was, on the 26th of October, 1803, duly settled and ordained as the minister of said Gray, and still so continues, "and ought, by the law of the land, to be in the quiet possession of said lot of land, and enjoying the use thereof without hindrance or molestation. Yet the said Moses Hunt, without right or judgment of law, hath entered into the said lot, and turned the said Daniel out of the possession of the same, and still holds him out; to the damage," &c. The defendant pleaded not guilty, and, upon trial before Thatcher, J., at some former term in this county, obtained a verdict. And now the plaintiff moves for a new trial, on what ground does not clearly appear, but it may be presumed as on a verdict against evidence, the evidence being reported by the judge who sat in the trial of the cause. As the opinion of the Court was not bottomed upon the particular facts reported, it is unnecessary to recite them here. DISPOSITION: Judgment entered according to the verdict. ORE TERMS: parsonage, seisin, predecessor, alienation, successor, assent, church, succession, precinct, writ of entry, declaration, abeyance, vacancy, assensu, vestry, sine, writ of right, common law, parochiae, disseisin, declaring, declare, holden, alien, bind, void HEADNOTES: Parsonage lands are holden by the minister in right of his parish; and in case of his death, &c., the fee is in abeyance1 until there be a successor. The parish is entitled to the profits during a vacancy. If the minister alien with the assent of the parish, it shall bind his successor; if without such assent, it will be valid during his incumbency, and his successor may enter without action, or he may bring his writ of entry sine assensu parochiae, counting on the seisin of his predecessor within fifty years. A minister may also have his writ of right, on his own seisin within thirty years, or on the seisin of his predecessor within sixty years. An alienation by the parish is void. JUDGES: Parsons, C. J., delivered the opinion of the court. 1 Abeyance. 1. Temporary inactivity; suspension. 2. Property. A lapse in succession during which no person vested with title.

OPINION: Parsons, C. J., delivered the opinion of the Court, as follows: -- So far as we can recollect from the declaration, the plaintiff demands the land described in his writ, as minister of the town of Gray, and in right of his town. After stating, very unnecessarily, the title, but without declaring on his own seisin, or the seisin of any predecessor, he concludes by averring that he ought to have quiet possession, and that the defendant has turned him out of possession -- whence, by implication, it may be inferred that the defendant entered on him when in possession. Upon trial on the issue of not guilty, the judge reports that it was admitted by the parties that the plaintiff never had been in possession. Thus the part of the declaration that was most material was not proved, and the verdict for the defendant is right. Indeed, if the verdict had been for the plaintiff, it is difficult to discover any legal principles on which he could have had judgment upon his declaration; the nature of his remedy, if he had right, being totally misconceived. By the provincial statute of 28 G. 2, c. 9, the ministers of the several Protestant churches were made sole corporations, capable of taking in succession any parsonage lands, ranted to the minister and his successors, or to the use of the ministry. And no alienation made by any minister of any parsonage lands, holden by succession, shall be valid any longer than he shall continue minister; unless, being minister of some particular town, district, or precinct, such alienation be made with the consent of such town, district, or precinct; or, being a minister of some Episcopal church, the alienation be made with the consent of the vestry. The provisions of this statute, on this subject, are reenacted by the statute of Feb. 20, 1786, on which rests the right of ministers to hold parsonage lands in succession as sole corporations, and also the restriction of the alienation of their parsonages. Ministers being thus made sole corporations, their rights and remedies are clearly defined by the common law. They stand on the same foundation, as to their parsonages, with all other sole corporations holding lands in succession, at common law. The minister holding parsonage lands in fee simple, holds them in right of his parish or church; and therefore, on his resignation, deprivation, or death, the fee is in abeyance until there be a successor. During the vacancy the parish or church have the custody, and are entitled to the profits, of the parsonage. If the minister alien with the assent of his parish, or of the vestry of the church, the alienation shall bind the successor: if without such assent, it will be valid no longer than he continues minister; and it will be no discontinuance of the estate, so as to drive the successor to his action, but he may enter. An alienat on of the parsonage by the town, district, or precinct, or vestry, is void: for if there be a minister, the fee is in him; or if there be a vacancy, the fee is in abeyance; and a corporation cannot acquire a freehold by a disseisin committed by itself.

Because the minister holds the parsonage in succession, in all legal proceedings he must claim it in the right of his town, district, precinct, or church. If the minister be, or his predecessor has been, disseised, he may enter, if the right of entry be not taken away; or he may bring a writ of entry, declaring upon his own seisin, or upon the seisin of his predecessor, according to the nature of his case. If his predecessor has aliened without the assent of his town, district, precinct, or church, he may have a writ of entry sine assensu parochiae, and in the writ he must declare on the seisin of his predecessor within fifty years, and this writ may be brought in the per, in the per and cui, or in the post. And the writ of entry sine assensu capituli, in the register, will be an authority for him. The minister may also have his writ of right on his own seisin within thirty years, or on a disseisin done to, or an alienation without assent made by, his predecessor, in which last cases he may declare on the seisin of his predecessor within sixty years. In examining the declaration in the case at bar, it is not supported by any of these principles, nor by any other legal principle that occurs to us. If the verdict had been rendered in favor of the plaintiff, he could not have judgment; but as it is against him, judgment must be entered according to the verdict.

United States Code TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART VI - PARTICULAR PROCEEDINGS CHAPTER 176 - FEDERAL DEBT COLLECTION PROCEDURE SUBCHAPTER A - DEFINITIONS AND GENERAL PROVISIONS Sec. 3002. Definitions (15) ’’United States’’ means -

(A) a Federal corporation; (B) an agency, department, commission, board, or other entity of the United States;

or (C) an instrumentality of the United States.

United States Code TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES PART I - THE AGENCIES GENERALLY CHAPTER 5 - ADMINISTRATIVE PROCEDURE SUBCHAPTER II - ADMINISTRATIVE PROCEDURE Sec. 552a. Records maintained on individuals (a) Definitions. - For purposes of this section -

(2) the term ’’individual’’ means a citizen of the United States or an alien lawfully admitted for permanent residence;

(12)the term ’’Federal benefit program’’ means any program administered or

funded by the Federal Government, or by any agent or State on behalf of the Federal Government, providing cash or in-kind assistance in the form of payments, grants, loans, or loan guarantees to individuals; and

(13)the term ’’Federal personnel’’ means officers and employees of the Government

of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).

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