corporate powers, must be understood to be granted during pleasure.1

Towns and Counties.

Thus far we have been considering general rules, applicable to all classes of municipal organizations possessed of corporate powers, and by which these powers may be measured, or the duties which they impose defined. In regard to some of these organizations, however, there are other and peculiar rules which require separate mention. Some of them are so feebly endowed with corporate life, and so much hampered, controlled, and directed in the exercise of the functions which are conferred upon them, that they are sometimes spoken of as nondescript in character, and as occupying a position somewhere between that of a corporation and a mere voluntary association of citizens. Counties, townships, school districts, and road districts do not usually possess corporate powers under special charters; but they exist under general laws of the State,2 which apportion the territory of the State into political divisions for convenience of government, and require of the people residing within those divisions. the performance of certain public duties as a part of the machinery of the State; and, in order that they may be able to perform these duties, vest them with certain corporate powers. Whether they shall assume those duties or exercise those powers, the people of the political divisions are not allowed the privilege of choice; the legislature assumes this division of the State to be essential in republican government, and the duties are imposed as a part of the proper and necessary burden which the citizens

1 East Hartford v. Hartford Bridge Co., 10 How. 511. On this subject see ch. ix., post. The case of Trustees of Aberdeen Academy v. Mayor, &c. of Aberdeen, 13 S. & M. 645, appears to be contra. By the charter of the town of Aberdeen in 1837, the legislature granted to it the sole power to grant licenses to sell vinous and spirituous liquors within the corporate limits thereof, and to appropriate the money arising therefrom to city purposes. In 1848 an act was passed giving these moneys to the Aberdeen Female Academy. The act was held void, on the ground that the original grant was of a franchise which constituted property, and it could not be transferred to another, though it might be repealed. The case cites Bailey v. Mayor,

&c., 3 Hill, 531, and St. Louis v. Russell, 9 Mo. 507, which seem to have little relevancy; also 4 Wheat. 663, 698, 699, and 2 Kent, 305, note, for the general rule protecting municipal corporations in their vested rights to property. The case of Benson v. Mayor, &c. of New York, 10 Barb. 223, also holds the grant of a ferry franchise to a municipal corporation to be irrevocable, but the authorities generally will not sustain this view. See post, p. 340 and note.

2 A constitutional provision that the legislature shall pass no special act conferring corporate powers, applies to public as well as private corporations. State v. Cincinnati, 20 Ohio St 18: Clegg v. School District, 8 Ner. 178: School District v. Insurance Co., 103 U. S. 707.

must bear in maintaining and perpetuating constitutional liberty.1 Usually their functions are wholly of a public nature, and there is no room to imply any contract between them and the State, in their organization as corporate bodies, except that which springs from the ordinary rules of good faith, and which requires that the property they shall acquire, by local taxation or otherwise, for the purposes of their organization, shall not be seized by the State, and appropriated in other ways. They are, therefore, sometimes called quasi corporations,2 to distinguish them from the corporations in general, which possess more completely the functions of an artificial entity. Chief Justice Parker, of Massachusetts, in speaking of school districts, has said, "That they are not bodies, politic and corporate, with the general powers of corporations, must be admitted; and the reasoning advanced to show their defect of power is conclusive. The same may be said of towns and other municipal societies; which, although recognized by various statutes, and by immemorial usage, as persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be maintained by suits at law, yet are deficient in many of the powers incident to the general character of corporations. They may be considered, under our institutions, as quasi corporations, with limited powers, coextensive with the duties imposed upon them by statute or usage, but restrained from the general use of authority which belongs to these metaphysical persons by the common law. The same may be said of all the numerous corporations which have been from time to time created by various acts of the legislature; all of them enjoying the power which is expressly bestowed upon them, and perhaps, in all instances where the act is silent, possessing, by necessary implication, the authority which is requisite to execute the purposes of their creation." "It will not do to apply the strict principles of law respecting corporations in all cases to these aggregate bodies which are created by statute in this Commonwealth. By the several statutes which have been passed respecting school districts, it is manifest that the legislature has

1 Granger v. Pulaski County, 26 Ark. 37; Scales v. Chattahoochee County, 41 Ga. 225; Palmer v. Fitts, 51 Ala. 489.

2 Riddle v. Proprietors, &c., 7 Mass. 169, 187; School District v. Wood, 13 Mass. 192; Adams v. Wiscasset Bank, 1 Me. 361; Denton v. Jackson, 2 Johns. Ch. 320; Todd v. Birdsall, 1 Cow. 260; 8. c. 13 Am. Dec. 522 : Beardsley v. Smith, 16 Conn. 367; Eastman v. Meredith, 36 N. H. 284; Hopple v. Brown, 13 Ohio St.

311; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109; Ray County v. Bentley, 49 Mo. 236. In Nebraska counties are not municipal corporations. Sherman Co. v. Simons, 109 U. S. 735. It is not competent to organize a town of parcels of territory which are not contiguous. Chicago, &c. Railway Co. v. Oconto, 50 Wis. 189; s. c. 36 Am. Rep. 840. See Smith v. Sherry, 50 Wis. 210.

supposed that a division of towns, for the purpose of maintaining schools, will promote the important object of general education; and this valuable object of legislative care seems to require, in construing their acts, that a liberal view should be had to the end to be effected."1 Following out this view, the courts of the New England States have held, that when judgments are recovered against towns, parishes, and school districts, any of the property of private owners within the municipal division is liable to be taken for their discharge. The reasons for this doctrine, and the custom upon which it is founded, are thus stated by the Supreme Court of Connecticut:

"We know that the relation in which the members of municipal corporations in this State have been supposed to stand, in respect to the corporation itself, as well as to its creditors, has elsewhere been considered in some respects peculiar. We have treated them, for some purposes, as parties to corporate proceedings, and their individuality has not been considered as merged in their corporate connection. Though corporators, they have been holden to be parties to suits by or against the corporation, and individually liable for its debts. Heretofore this has not been doubted as to the inhabitants of towns, located ecclesiastical societies, and school districts.

"From a recurrence to the history of the law on this subject, we are persuaded that the principle and usage here recognized and followed, in regard to the liability of the inhabitants of towns and other communities, were very early adopted by our ancestors. And whether they were considered as a part of the common law of England, or originated here, as necessary to our State of society, it is not very material to inquire. We think, however, that the principle is not of domestic origin, but to some extent was operative and applied in the mother country, especially in cases where a statute fixed a liability upon a municipality which had no corporate funds. The same reasons and necessity for the application of such a principle and practice existed in both countries. Such corporations are of a public and political character; they exercise a portion of the governing power of the State. Statutes impose upon them important public duties. In the performance of these, they must contract debts and liabilities, which can only be discharged by a resort to individuals, either by taxation or execution. Taxation, in most cases, can only be the result of the voluntary action of the corporation, dependent upon the contingent will of a majority of the corporators, and upon

1 School District v. Wood, 13 Mass. 192, 197.

their tardy and uncertain action. It affords no security to creditors, because they have no power over it. Such reasons as these probably operated with our ancestors in adopting the more efficient and certain remedy by execution, which has been resorted to in the present case, and which they had seen to some extent in operation in the country whose laws were their inheritance.

"The plaintiff would apply to these municipal or quasi corporations the close principles applicable to private corporations. But inasmuch as they are not, strictly speaking, corporations, but only municipal bodies, without pecuniary funds, it will not do to apply to them literally, and in all cases, the law of corporations.1

"The individual liability of the members of quasi corporations, though not expressly adjudged, was very distinctly recognized in the case of Russell v. The Men of Devon.2 It was alluded to as a known principle in the case of the Attorney-General v. The City of Exeter,3 applicable as well to cities as to hundreds and parishes. That the rated inhabitants of an English parish are considered as the real parties to suits against the parish is now supposed to be well settled; and so it was decided in the cases of The King v. The Inhabitants of Woburn, and The King v. The Inhabitants of Hardwick. And, in support of this principle, reference was made to the form of the proceedings; as that they are entitled against the inhabitants,' &c.

"In the State of Massachusetts, from whose early institutions we have borrowed many valuable specimens, the individual responsibility of the inhabitants of towns for town debts has long been established. Distinguished counsel in the case of the Merchants' Bank v. Cook, referring to municipal bodies, say: For a century past the practical construction of the bar has been that, in an action by or against a corporation, a member of the corporation is a party to the suit.' In several other cases in that State the same principle is repeated. In the case of Riddle v. The Proprietors of the Locks and Canals on Merrimack River, Parsons, Ch. J., in an allusion to this private responsibility of corporators, remarks: And the sound reason is, that having no corporate fund, and no legal means of obtaining one, each corporator is liable to satisfy any judgment obtained against the corporation.' So in Brewer v. Inhabitants of New Gloucester,8

the court say: 'As the law provides that, when judgment is recovered against the inhabitants of a town, execution may be levied upon the property of any inhabitant, each inhabitant must be considered as a party. In the case before referred to of the Merchants' Bank v. Cook, Parker, Ch. J., expresses the opinion of the court upon this point thus: Towns, parishes, precincts, &c., are but a collection of individuals, with certain corporate powers for political and civil purposes, without any corporate funds from which a judgment can be satisfied; but each member of the community is liable, in his person and estate, to the execution which may issue against the body; each individual, therefore, may be well thought to be a party to a suit brought against them by their collective name. In regard to banks, turnpike, and other corporations, the case is different.' The counsel concerned in the case of Mower v. Leicester,1 without contradiction, speak of this practice of subjecting individuals as one of daily occurrence. The law on this subject was very much considered in the case of Chase v. The Merrimack Bank,2 and was applied and enforced against the members of a territorial parish. The question is,' say the court, whether, on an execution against a town or parish, the body or estate of any inhabitant may be lawfully taken to satisfy it. This question seems to have been settled in the affirmative by a series of decisions, and ought no longer to be considered as an open question.' The State of Maine, when separated from Massachusetts, retained most of its laws and usages, as they had been recognized in the parent State; and, among others, the one in question. In Adams v. Wiscasset Bank,3 Mellen, Ch. J., says: It is well known that all judgments against quasi corporations may be satisfied out of the property of any individual inhabitant."

6

6

"The courts of this State, from a time beyond the memory of any living lawyer, have sanctioned and carried out this usage, as one of common-law obligation; and it has been applied, not to towns only, but also, by legal analogy, to territorial ecclesiastical societies and school districts. The forms of our process against these communities have always corresponded with this view of the law. The writs have issued against the inhabitants of towns, societies, and districts as parties. As early in the history of our jurisprudence as 1705, a statute was enacted authorizing communities, such as towns, societies, &c., to prosecute and defend suits, and for this purpose to appear, either by themselves, agents, or attorneys. If the inhabitants were not then considered as parties

19 Mass. 247.

2 19 Pick. 564.

8 1 Greenl. 361.