Smith v. Eureka Flour Mills Co.

Mr. Chief Justice Murray concurred.

1. The policy of this State has altered the rigidness of the Common Law which disabled a corporation from making a contract except under its corporate seal. The act of incorporation, instead of being as form *7 erly a favor granted by the sovereign to the subject, has under our system become a matter of right available under general laws. Under those laws the power of corporations to create debts is treated as an incident to the express powers, and not as in itself one of the express powers. This is evident from the 3d section of the Act of 1850, and the 15th section of the Act of 1853. In both these sections corporations are prohibited from issuing bills or notes for circulation as money; to this expression we gave a construction in the case of Magee & Beals v. The Mokelumne Hill Canal and Mining Co., 5 Cal. 258 . To this we will add that we must apply the rule cxpressio unius est exclusio alterius. One cause of issuing bills or notes is expressly excluded; the right to issue them in all other proper cases must be inferred as an incident to the expressed powers or objects of the corporation.

2. It is objected that the plaintiff failed to show…