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general rule, and the cases of unauthorized action which may bind the corporation are exceptional, and will be referred to further on.

designed to be of some service to the constituents of the common council. They were intended to protect the owners of lands and the taxpayers of the city, as well against the frauds and impositions of the contractors who might be employed to make these local improvements, as against the illegal acts of the common council themselves in employing the contractors. But if the plaintiff can recover in this action, of what value or effect are all these safeguards? If the common council desire to make a local improvement, which the persons to be benefited thereby, and to be assessed therefor, are unwilling to have made, the consent of the owners may be wholly dispensed with, according to the plaintiff's theory. The common council have only to represent that the proper petition has been presented and the proper proceedings have been taken, to warrant the improvement. They then enter into the contract. The improvement is made. Those other safeguards for an assessment of the expenses and for reviewing the proceedings may or may not be taken. But when the work is completed and is to be paid for, it is found that the common council have no authority to lay any assessment or collect a dollar from the property benefited by the improvement. The contractor then brings his action, and recovers from the city the damages he has sustained by the failure of the city to pay him the contract price. The ground of his action is the falsity of the representations made to him. But the truth or falsity of such representations might have been ascertained by the party with the use of the most ordinary care and diligence. The existence of the proper petition, and the taking of the necessary initiatory steps to warrant the improvement, were doubtless referred to and recited in the contract made with the plaintiff. And he thus became again directly chargeable with notice of the contents of all these papers. It is obvious that the restrictions and limitations imposed by the law cannot thus be evaded. The consent of the parties interested in such improvements cannot be dispensed with; the responsibility, which the con

ditions precedent created by the statute impose, cannot be thrown off in this manner. For the effect of doing so is to shift entirely the burden of making these local improvements, to relieve those on whom the law sought to impose the expense, and to throw it on others who are not liable either in law or morals."

So, where the charter of Detroit provided that no public work should be contracted for or commenced until an assessment had been levied to defray the expense, and that no such work should be paid or contracted to be paid for, except out of the proceeds of the tax thus levied, it was held that the city corpora tion had no power to make itself responsible for the price of any public work, and that such work could only be paid for by funds actually in the hands of the city treasurer, provided for the specific purpose. Goodrich v. Detroit, 12 Mich. 279. But if the city receives the fund and misappropriates it, it will be liable. Lansing v. Van Gorder, 24 Mich. 456. And that even if a contract is ultra vires a city is liable for value of work done under it, provided it receives the benefit of it, see Schipper v. Aurora, 22 N. E. Rep. 878 (Ind), and cases cited.

Parties dealing with the agents or officers of municipal corporations must, at their own peril, take notice of the limits of the powers both of the municipal corporation, and of those assuming to act on its behalf. State v. Kirkley, 29 Md. 85; Gould v. Sterling, 23 N. Y. 456; Clark v. Des Moines, 19 Iowa, 199; Veeder v. Lima, 19 Wis. 280; Bryan v. Page, 51 Tex. 532; s. c. 32 Am. Rep. 637; Tainter v. Worcester, 123 Mass. 311; s. c. 25 Am. Rep. 90; Barton v. Swepston, 44 Ark. 437; Thomas v. Richmond, 12 Wall. 349; East Oakland v. Skinner, 94 U. S. 255; Dillon, Mun. Corp. § 381. But a bona fide holder of municipal obligations has a right to rely upon the truth of their recitals, if they appear to be warranted by the legislation under which they are issued. Coloma v. Eaves, 92 U. S. 484; Walnut v. Wade, 103 U. S. 683; Pana v. Bowler, 107 U. S. 529; New Providence v. Halsey, 117 U. S.

Municipal corporations exercise the authority conferred upon. them by law through votes of the corporators at public meetings, and through officers and agents duly elected or chosen. The corporators are the resident electors, who, under the general laws of the State, may vote at the ordinary elections, though sometimes, in special cases, the franchise has been conferred upon taxpayers exclusively. A meeting of corporators for any purpose of legal action must be regularly convened in such manner or at such time as may have been prescribed by law. If the corporators were to come together at any time without legal permission and assume to act for the corporation, their action would be of no legal force or validity whatever. The State permits them to wield a part of the governmental authority of the State, but only on the conditions which the law has prescribed, and one of these is that it shall be exercised in an orderly manner, at meetings assembled upon due notice and conducted according to legal forms, in order that there may be opportunity for reflection, consultation, and deliberation. The notice may be either general, and given by the law itself, or it may be special, and given by some corporate officer or agent. Annual meetings are commonly provided for by general law, which names a time, and perhaps a place for the purpose. Of this general law every corporator must take notice, and the meetings held in pursuance of it are legal, even though a further notice by publication, which the statute directs, has been omitted.2 But for special meetings the requirement of special notice is imperative, and it must be given as the statute requires.3 Sometimes it is directed to be given by publication, sometimes by posted notice, and sometimes by personal notification. If the law requires the order or warrant for the meeting to specify its object, compliance is imperative, and the business which can be lawfully done at the meeting will be strictly limited to the object stated.*

336; Oregon v. Jennings, 119 U. S. 74; Aberdeen v. Sykes, 59 Miss. 236; and cases post, pp. 269–272.

1 Chamberlain r. Dover, 13 Me. 466; s. c. 29 Am. Dec. 517; Evans v. Osgood, 18 Me. 213; School District v. Atherton, 12 Met. 105; Stone v. School District, 8 Cush. 592; Bethany v. Sperry, 10 Conn. 200; State v. Harrison, 67 Ind. 71; Pike County v. Rowland, 94 Pa. St. 238; State v. Pettineli, 10 Nev. 181; State v. Bonnell, 35 Ohio St. 10; Ross v. Crockett, 14 La. Ann. 811; Goulding v. Clark, 34 N. H. 148. See Stow v. Wise, 7 Conn. 214; s. c. 18 Am. Dec. 99; Brooklyn

Trust Co. v. Hebron, 51 Conn. 22; Pierce v. New Orleans Building Co., 9 La. 397; s. c. 29 Am. Dec. 448; Atlantic De Laine Co. v. Mason, 5 R. I. 463.

2 See People v. Cowles, 13 N. Y. 350; People v. Hartwell, 12 Mich. 508; People v. Brenahm, 3 Cal. 477; State v. Orvis, 20 Wis. 235; Dishon v. Smith, 10 Iowa, 212; State v. Jones, 19 Ind. 356.

8 Tuttle v. Cary, 7 Me. 426.

4 Little v. Merrill, 10 Pick. 543; Bartlett r. Kinsley, 15 Conn. 327; Atwood r. Lincoln, 44 Vt. 332; Holt's Appeal, 5 R. I. 603; Reynolds v. New Salem, 6 Met. 310; Bowen v. King, 34 Vt. 156;

Special charters for corporations usually provide for some governing body who shall be empowered to make laws for them within the sphere of the powers conferred, and perhaps to appoint some portion or all of the ministerial and administrative officers. In the case of towns, school districts, &c., the power to make laws is largely confided to the corporators assembled in annual meeting; and in the case of counties, in some county board. The laws, whether designated orders, resolutions, or ordinances, are more often in law spoken of as by-laws, and they must be justified by the grant of power which the State has made. Whatever is ultra vires in the case of any delegated authority, is of course void.

Whatever is said above respecting notice for corporate meetings is equally applicable to meetings of the official boards, with this exception: that as the board is composed of a definite number of persons, if these all convene and act they may thereby waive the want of notice. But the meeting of a mere majority without notice to the others would be without legal authority.2

Corporations by Prescription and Implication.

The origin of many of the corporate privileges asserted and enjoyed in England is veiled in obscurity, and it is more than probable that in some instances they had no better foundation than an uninterrupted user for a considerable period. In other cases the royal or baronial grant became lost in the lapse of time, and the evidence that it had ever existed might rest exclusively upon reputation, or upon the inference to be drawn from the exercise of corporate functions. In all these cases it seems to be the law that the corporate existence may be maintained on the ground of prescription; that is to say, the exercise of cor porate rights for a time whereof the memory of man runneth not to the contrary is sufficient evidence that such rights were once granted by competent authority, and are therefore now exercised by right and not by usurpation.3 And this presumption concludes the crown, notwithstanding the maxim that the crown shall lose no rights by lapse of time. If the right asserted is one of which a grant might be predicated, a jury is bound to

Haines v. School District, 41 Me. 246;
Bloomfield v. Charter Oak Bank, 121
U. S. 121.

1 See Williams v. Roberts, 88 Ill. 11.
2 Gordon v. Preston, 1 Watts, 385; s. c.
26 Am. Dec. 75.

8 Introduction to Willcock on Municipal Corporations; The King v. Mayor, &c. of Stratford upon Avon, 14 East, 348; Robie v. Sedgwick, 35 Barb. 319. See Londonderry v. Andover, 28 Vt. 416.

presume a grant from that prescription. In this particular the claim to a corporate franchise stands on the same ground as any claim of private right which requires a grant for its support, and is to be sustained under the same circumstances of continuous assertion and enjoyment.2 And even the grant of a charter by the crown will not preclude the claim to corporate rights by prescription; for a new charter does not extinguish old privileges.3

A corporation may also be established upon presumptive evidence that a charter has been granted within the time of memory. Such evidence is addressed to a jury, and though not conclusive upon them, yet, if it reasonably satisfies their minds, it will justify them in a verdict finding the corporate existence. "There is a great difference," says Lord Mansfield, " between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by length of time which operates as a bar; as where the Statute of Limitations is pleaded in bar to a debt: though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription. If it be time out of mind, a jury is bound to preclude the right from that prescription, if there could be a legal commencement of the right. But any written evidence, showing that there was a time when the prescription did not exist, is an answer to a claim founded on prescription. But length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to circumstances."4 The same ruling has been had in several cases in the courts of this country, where corporate powers. had been exercised, but no charter could be produced. In one of these cases, common reputation that a charter had once existed was allowed to be given to the jury; the court remarking upon the notorious fact that two great fires in the capital of the colony had destroyed many of the public records.5 In other cases there was evidence of various acts which could only lawfully and properly be done by a corporation, covering a period of thirty, forty, or fifty years, and done with the knowledge of the State and

1 Mayor of Hull v. Horner, Cowp. 104, per Lord Mansfield. Compare People v. Maynard, 15 Mich. 463; State v. Bunker, 59 Me. 366.

2 2 Kent, 277; Angell & Ames on Corp. § 70; 1 Kyd on Corp. 14.

3 Hadduck's Case, T. Raym. 439; The King v. Mayor, &c. of Stratford upon Avon, 14 East, 348; Bow v. Allens

town, 34 N. H. 351. See Jameson v. People, 16 Ill. 257.

4 Mayor of Hull v. Horner, Cowp. 104, 108; citing, among other cases, Bedle v. Beard, 12 Co. 5.

Dillingham v. Snow, 5 Mass. 547. And see Bow v. Allenstown, 34 N. H. 351; Bassett v. Porter, 4 Cush. 487.

without question. The inference of corporate powers, however, is not one of law; but is to be drawn as a fact by the jury.2

Wherever a corporation is found to exist by prescription, the same rule as to construction of powers, we apprehend, would apply as in other cases. The presumption as to the powers granted would be limited by the proof of the usage, and nothing could be taken by intendment which the usage did not warrant.

Corporations are also said sometimes to exist by implication. When that power in the State which can create corporations grants to individuals such property, rights, or franchises, or imposes upon them such burdens, as can only be properly held, enjoyed, continued, or borne, according to the terms of the grant, by a corporate entity, the intention to create such corporate entity is to be presumed, and corporate capacity is held to be conferred so far as is necessary to effectuate the purpose of the grant or burden. On this subject it will be sufficient for our purpose to refer to authorities named in the note.3 In these cases the rule of strict construction of corporate powers applies with unusual force.

Municipal By-Laws.

The power of municipal corporations to make by-laws is limited in various ways.

1. It is controlled by the Constitution of the United States and of the State. The restrictions imposed by those instruments, which directly limit the legislative power of the State, rest equally upon all the instruments of government created by the State. If a State cannot pass an ex post facto law, or law impairing the obligation of contracts, neither can any agency do so which acts under the State with delegated authority.

1 Stockbridge v. West Stockbridge, 12 Mass. 400; New Boston v. Dunbarton, 12 N. H. 409, and 15 N. H. 201; Bow v. Allenstown, 34 N. H. 351; Trott v. Warren, 11 Me. 227.

2 New Boston v. Dunbarton, 15 N. H. 201; Bow v. Allenstown, 34 N. H. 351; Mayor of Hull v. Horner, 14 East, 102.

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3 Dyer, 400, cited by Lord Kenyon, in Russell v. Men of Devon, 2 T. R. 667, and in 2 Kent, 276; Viner's Abr. tit. "Corporation; Conservators of River Tone v. Ash, 10 B. & C. 349; s. c. 10 B. & C. 383, citing case of Sutton Hospital, 10 Co. 28; per Kent, Chancellor, in Denton v. Jackson, 2 Johns. Ch. 320; Coburn . Ellenwood, 4 N. H. 99; Atkinson v. Bemis, 11 N. H. 44; North Hempstead v. Hemp

By-laws, therefore, which in

stead, 2 Wend. 109; Thomas ». Dakin, 22 Wend. 9; per Shaw, Ch. J., in Stebbins v. Jennings, 10 Pick. 172; Mahony v. Bank of the State, 4 Ark. 620. Only where a contract made in good faith cannot otherwise be enforced, will the doctrine of implication be upheld. Blair v. West Point, 2 McCrary, 459, and cases cited.

4 Angell & Ames on Corporations, § 322; Stuyvesant v. Mayor, &c. of New York, 7 Cow. 588; Brooklyn Central Railroad Co. v. Brooklyn City Railroad Co., 32 Barb. 358; Illinois Conference Female College v. Cooper, 25 Ill. 148. The last was a case where a by-law of an educational corporation was held void, as violating the obligation of a contract previously entered into by the corpora

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