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debts of a corporation aggregate, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities(2); (193) agreeably to the maxim of the civil law(a), "si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent."

A corporation may be dissolved, (1.) By act of parliament, which is boundless in its operation. (194) (2.) By the natural death of all its members, in case of an aggregate corporation. (3.). By the total loss of one or more of its integral parts without the power of renewal(b). (4.) By surrender of its franchises to the crown, which is a kind of suicide.(195) (5.) By for[ *587] feiture of its charter, through negligence or abuse of its franchises; in which case the law judges that the body politic has broken the condition upon

(z) Edmunds v. Brown, 1 Lev. 237. (a) Dig. 3, 4, 7.

(b) This may take place when the majority of any one integral part is lost, and when the

constitution of the corporation is such that the minority cannot supply the vacancies and the rest of the body is unable to interfere. Grant on Corporations, p. 303.

creditors are concerned. Upon the dissolution of a corporation, the title to real property held by it does not revert to the original proprietors and grantors, or their heirs, but vests in the receiver of the corporation, and it is to be administered by him for the benefit of creditors and stockholders. Owen v. Smith, 31 Barb. 641.

If a municipal corporation acquires lands in pursuance of an exercise of the right of eminent domain, and the payment of the value of lands to the owner, no reversionary estate remains in the grantor. Heyward v. Mayor, etc., of New York, 7 N. Y. (3 Seld.) 314; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. (6 Hand) 234. So of lands, thus taken, for a railroad. Erie & North East R. R. v. Casey, 26 Penn. St. 287, 325.

(193) A state may frame laws which will enable her citizens to subject the lands of a corporation, whose charter has expired and whose functions have ceased, to the debts which the corporation owes to the citizens. McGoon v. Scales, 9 Wall. (U. S.) 23.

In this country, it has been held in several cases that insolvent and dissolved corporations are not absolved from the obligations of their contracts; and their capital, property and debts owing to them will be treated as a trust fund and pledge for the benefit of creditors and stockholders, which a court of equity will require to be applied to that purpose. Tinkham v. Borst, 31 Barb. 407; Mann v. Pentz, 3 N. Y. (3 Comst.) 415, 422; Wood v. Dummer, 3 Mason, 309; Mumma v. Potomac County, 8 Pet. 281; Wright v. Petrie, 1 Smedes & Marsh. Ch. 309; Reed v. Frankfort Bank, 23 Me. 318; Robinson v. Lane, 19 Ga. 337.

So it has been held that, at common law, upon the dissolution of a corporation, the debts due and from it are extinguished. President of Port Gibson v. Moore, 13 Smedes & Marsh. 157; Hightower v. Thornton, 8 Ga. 486; Thornton v. Lane, 11 id. 459; Commercial Bank v. Lockwood, 2 Harring. 8.

(194) As has been already stated, the legislature cannot repeal a charter, or alter it so as to impair the obligation of a contract. Note 178.

The legislature may repeal a charter or act of incorporation where there is a clause in it to that effect, or where there is a general statute authorizing the alteration or repeal of all charters or acts of incorporation. Suydam v. Moore, 8 Barb. 358; Erie & North East R. R. Co. v. Casey, 26 Penn. St. 287, 302; Crease v. Babcock, 23 Pick. 234; McLaren v. Pennington, 1 Paige, 102; Miners' Bank of Dubuque v. United States, 1 Greene (Iowa), 553; State v. Curran, 7 Eng. (Ark.) 321; Baltimore v. Pittsburgh, etc., R. R. Co., 1 Abb. (U. S.) 9.

(195) As a general rule the government must accept the surrender of a charter of a corporation, to effect its dissolution. LaGrange, etc., R. R. Co. v. Rainey, 7 Cold. (Tenn.) 420. McMahon v. Morrison, 16 Ind. 172; Washington, etc., Road v. State, 19 Md. 239; Morris v. Mayor, etc., of Smithville, 1 Swan (Tenn.) 164; Town v. Bank of River Raisin, 2 Doug. (Mich.) 530; Revere v. Boston Copper Co., 15 Pick. 351; Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 45; New York Marbled Iron Works v. Smith, 4 Duer, 362.

which it was incorporated, and thereupon the incorporation is void;(196) the regular course appropriate in such case having formerly been to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members of the defunct body continued to exercise their corporate power; having forfeited it by such and such proceedings(c). The adoption of this procedure for purposes of state in the reigns of king Charles II. and king James II., particularly by seizing the charter of the city of London, gave great and just offence(d); though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament(e) after the Revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited.

II. Municipal corporations, consisting of a mayor and commonalty, are institutions intended for the government of towns, for the preservation of order (II.) Municipal therein, and of the liberties of their inhabitants.(197)

corporations.

Boroughs in one form or another existed in the times of the

(c) The court will not now grant a quo warranto against an individual member of a corporation to test the validity of its charter. Reg. v. Taylor, 11 A. & E. 954; post, pp. 592,

593.

(d) Hall. Const. Hist., 11th ed. vol. ii. pp. 453-455; vol. iii. p. 75; Hume's Hist. Eng. viii. 178; Pulling, Laws and Customs of London, pp. 13, et seq.

(e) Stat. 2 Will. & M. c. 8.

(196) The acts or omissions which are claimed to be ground of forfeiture of the charter of a corporation must be willful, and not the result of mere accident or mistake State v. Pawtuxet Turnpike Co., 8 R. I. 182; State v. Merchants' Ins. & Trust Co., 8 Humph. 235; State v. Royalton Turnpike Co., 11 Vt. 431; People v. Hillsdale Turnpike Co., 23 Wend. 254.

Where a corporation is guilty of acts or omissions which are a good ground of forfeiture of its charter, it cannot do any act which will avoid the effects of such acts or omissions. People v. Fishkill & Beekman Plank Road Co., 27 Barb. 415.

But the legislature may waive the forfeiture, and it will do so by enacting a subsequent law which recognizes the validity and existence of the corporation. State v. Mississippi, etc. R. R. Co., 20 Ark. 495; Lumpkins v. Jones, 1 Kelly, 30; Commercial Bank v. State, 6 Smedes & Marsh. 622; People v. Kingston Turnpike Co., 23 Wend. 193.

The forfeiture cannot be taken advantage of collaterally by individuals, but must be established by proceedings on behalf of the state for that purpose. State v. Fourth New Hampshire Turnpike, 15 N. H. 162; Pearce v. Olney, 20 Conn. 544; Bank of Galliopolis v. Trimble, 6 B. Monr. 599; Bank of Missouri v. Merchants' Bank, 10 Mo. 123; Johnson v. Bentley, 16 Ohio, 97; Dyer v. Walker, 40 Penn. St. 157; Vermont & Canada R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 57; Heard v. Talbot, 7 Gray, 120; Cahill v. Kalamazoo Ins. Co., 2 Doug. (Mich.) 124; Young v. Harrison, 6 Ga. 130.

A court of equity is not authorized to determine whether a corporation has forfeited its charter, and to decree a dissolution. Doyle v. Peerless, etc., Co., 44 Barb. 239; Slee v. Bloom, 5 Johns. Ch. 380; Bayless v. Orne, 1 Freeman's Ch. (Miss.) 173; State v. Merchants' Ins, & Trust Co., 8 Humph. 235.

(197) In the United States, municipal corporations are created by special charters or acts, or under general statutes for that purpose, while private corporations are generally in the nature of a contract, and cannot, therefore, be impaired by subsequent legislation, except under circumstances authorizing it; a municipal corporation is a public one, and the legis lature may enlarge, abridge or repeal their powers as may seem proper or desirable. State v. Linn County, 44 Mo. 504; Jersey City v. Jersey City R. R. Co., 20 N. J. Eq. (5 C. E. Green) 360; Matter of Clinton Street, 2 Brews. (Pa.) 599; Berlin v. Gorham, 34 N. H. 266; Montpelier v. East Montpelier, 29 Vt. 12; Smith v. Adrian, 1 Mann (Mich.) 495; County of Richland v. County of Lawrence, 12 Ill. 1.

Anglo-Saxons, and we read of charters having been granted to towns in the reigns of the earliest Norman kings, which differed however in form from those subsequently granted. The first borough expressly incorporated was perhaps

An unincorporated town cannot avail itself of the privileges which are conferred by statute upon incorporated towns only. McManning v. Farrar, 46 Mo. 376.

Municipal corporations have power to make contracts for the purpose of carrying into effect the objects of the incorporation; and the contracts will be valid and binding upon the corporation. Pullman v. Mayor, etc., of New York, 54 Barb. 169; People v. Swift, 31 Cal. 26; Meech v. City of Buffalo, 29 N. Y. (2 Tiff.) 198; Roun v. Cabot, 28 Ga. 50; Tucker v. Virginia, 4 Nev. 20; Miller v. Milwaukee, 14 Wis. 642; Mills v. Gleason, 11 id. 470.

They have no power to make contracts which will embarrass or control their legislative powers and duties. New York v. Second Avenue R. R. Co., 32 N. Y. (5 Tiff.) 261.

All contracts ought to be made in the mode prescribed by the charter, if such mode is therein declared; and a substantial neglect or disregard of its requirements will render a contract so made void. Lowell v. Simpson, 10 Allen (Mass.), 88; Leavenworth v. Rankin, 2 Kansas, 357; McSpeden v. Mayor, etc., New York, 7 Bosw. 601; Zottman v. San Francisco, 20 Cal. 96; Brady v. Mayor, etc., New York, 2 Bosw. 173.

Ordinances passed by a municipal corporation are legislative in their character; and are valid, and may be enforced when within the authority conferred by the charter, or the general laws under which the corporation was organized; and if not in violation of the general laws or statutes of the state. State v. Welch, 36 Conn. 215; Waco v. Powell, 32 Texas, 258; Jones v. Firemen's Ins Co., 2 Daly (N. Y. C. P.), 307; Toledo, etc., R. R. Co. v. Chenoa, 43 III. 209; Gabel v. Houston, 29 Texas, 335; Smith v. Knoxville, 3 Head (Tenn.), 245; St. Paul v. Colter, 12 Minn. 41; Block v. Jacksonville, 36 Ill. 301; Arnyx v. Taber, 23 Cal. 370; Yates v. Milwaukee, 12 Wis. 673.

An ordinance which operates in restraint of trade is invalid. Bloomington v. Wahl, 46 I11. 489; Caldwell v. Alton, 33 id. 416.

An ordinance may be void for vagueness and uncertainty. Jones' Law (N. C.), 281. When not so vague as to be void. Ala. 55.

Commissioners v. Harris, 7
See Huntsville v. Phelps, 27

Corporations have no powers except such as are expressly conferred, or such as are necessary to carry into effect those expressly conferred. Oakland v. Carpentier, 13 Cal. 540; Ruggles v. Collier, 43 Mo. 353; New London v. Brainard, 22 Conn. 552.

A municipal corporation is authorized to regulate and direct the manner in which the streets, alleys, lanes, parks or public places shall be constructed or used. McCarthy v. Chicago, 53 Ill. 28; State v. Morristown, 33 N. J. Law (4 Vroom), 57; Anderson v. Turbeville, 6 Cold. (Tenn.) 150; Toledo, etc., R. R. Co. v. Chenoa, 43 Ill. 209; Pedrick v. Bailey, 12 Gray, 161; Southwark, etc., R. R. Co. v. Philadelphia, 47 Penn. St. 314; State v. Graves, 19 Md. 351 Dubuque v. Maloney, 9 Iowa, 450.

The corporate authorities of a city or town cannot, by an arbitrary ordinance, destroy private property by force, or compel the owner to destroy or remove it, unless it was a nuisance, and so declared by ordinance, and shown to be such by its locality, or the sanitary condition of the city or town. Pieri v. Shieldsboro, 42 Mo. 493.

The sale of liquor on Sundays by hotels, taverns, saloons and other similar places, may be prohibited by ordinance. Gabel v. Houston, 29 Texas, 335.

A city ordinance may prohibit the use of an awning before a building, unless done by the consent of the mayor and aldermen. Pedrick v. Bailey, 12 Gray, 161.

An ordinance which prohibits cattle and hogs from running at large in the streets is valid. Waco v. Powell, 32 Texas, 258; Arnyx v. Taber, 23 Cal. 370; Roberts v. Ogle, 30 Ill. 459; Commonwealth v. Bean, 14 Gray, 52.

City charters are strictly construed. Leonard v. Canton, 35 Miss. 189. See Oakland v. Carpentier, 13 Cal. 540.

A municipal corporation is bound to keep the public streets and sidewalks in a safe condition, and if this is not done, and an individual, in the exercise of due care, is injured while passing along them, the corporation will be liable. Parker v. Macon, 39 Ga. 725; Champion v. Patterson, 50 Ill. 61; Reinhard v. Mayor, etc., of New York, 2 Daly (N. Y. C. P.), 243:

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[*588]

that of Kingston-upon-Hull, A.D. *1439(ƒ). At all events, in the charter then granted to that borough, we find words used granting to the mayor, burgesses, &c., that they should be one perpetual corporate commonalty in deed and name, and should have perpetual succession (g), words which seem to have been wanting in earlier charters granted not only to Kingstonupon-Hull but to other boroughs, and a charter granted to Kingston two years afterwards recited that it had been incorporated (h). Other boroughs were incorporated temp. Henry VI. in like manner, and from that time charters of incorporation were gradually granted to the principal towns throughout the kingdom.

All these municipal corporations were undoubtedly instituted for the advancement and regulation of trade, the local administration of justice, and the better government of their particular vicinities. About the reign of queen Elizabeth, however, the municipal and parliamentary franchises became in most cases united(); and the great Case of Corporations(k) having, about the same time, vested the right of making by-laws in the "select bodies" of corporations, we find these institutions completely perverted from their original intention. In short, from this period the right of making by-laws, no less than another necessary corporate right, viz., the right of electing corporate members, seem to have been much abused, and at length the "select bodies" did not hesitate to alienate the corporate property for electioneering purposes(1). These circumstances, together with the fact that the boroughs throughout the country were subject to dissimilar regulations, led to the passing of the Municipal Corporation Act(m), A. D. 1835.

*This statute, as altered and amended by subsequent acts(n), now [ *589] regulates all municipal corporations in England. It repeals the provisions of all charters, and all by-laws, so far, and so far only, as they are inconsistent with the act: it enumerates, in a schedule, all the existing municipal corporations, and empowers the crown to incorporate any town in accordance with the provisions of the act, on the presentation of a petition by its inhabitants(0).

(f) Merewether and Stephen's Hist. of Vict. c. 89; 15 & 16 Vict. c. 5; 16 & 17 Vict. Boroughs, xxxiii. et seq.; 860, et seq.

(g) Ib. 861.

(h) lb. 869.

c. 79; 20 & 21 Vict. c. 50; 21 & 22 Vict. c. 43; 22 Vict. c. 35; 23 & 24 Vict. c. 16; 24 & 25 Vict. c. 75; are the principal acts affecting mu

(i) Hall. Const. Hist. 11th ed., vol. iii. pp. nicipal corporations. See, further, Rawlin

36-47

(k) 4 Rep. 77 b.

(7) See 2 & 3 Will. 4, c. 69.

(m) 5 & 6 Will. 4, c. 76.

(n) The 6 & 7 Will. 4, cc. 103, 104, 105; 7 Will. 4 & 1 Vict. cc. 19, 81; 1 & 2 Vict. c. 31; 4 & 5 Vict. c. 48; 5 & 6 Vict. c. 111; 6 & 7

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Covington v. Bryant, 7 Bush (Ky.), 248; Baker v. Portland, 58 Me. 199; Blake v. St. Louis, 40 Mo. 569; Wendell v. Mayor, etc., of Troy, 39 Barb. 329; 4 Keyes, 261.

A municipal corporation is liable for the tortious acts of its officers or its agents, if the acts were expressly authorized by the corporation, or were done in good faith, in pursuance of a general authority to act for the corporation on the subject in relation to which they were performed. Lee v. Sandy Hill, 40 N. Y. (1 Hand) 442; Williams v. Dunkirk, 3 Lans. 44; Hildreth v. Lowell, 11 Gray, 345.

They are not liable for the willful, unauthorized tortious acts of their officers or agents, though done in the course of their employment. Small v. Danville, 51 Me. 359; Buttrick v. Lowell, 1 Allen (Mass.), 172. See Vanderbilt v. Richmond Turnpike Co., 2 N. Y. (2 Comst.) 479.

When incorporated, the management of the borough is committed to the care of the council, a body consisting of a mayor, aldermen, and councillors, the councillors being elected by the burgesses, the aldermen by the councillors out of their own body, or from amongst burgesses qualified to be councillors, and the mayor from and by the councillors. Every rated occupier of a house or shop in a borough who has paid the rates due, and who (not being an alien) has resided there (or within seven miles of it) for a certain time, and who has not been in the receipt of relief as a pauper, is entitled to be on the burgess roll(p). Further qualifications are required for the mayor, aldermen, and councillors. There are provisions in the act for the appointment of various officers, such as town clerk, treasurer, and clerk of the peace, and, in some instances, of sheriffs and coroners also. The crown may, under certain circumstances, [*590] appoint a recorder, and also a salaried police magistrate. The general provisions for appointing police, and for lighting and paving boroughs are usually vested in the council, and exercised by certain committees chosen by them out of their own body; and when an act of parliament enacts that certain things shall be done by the "local authority" of a place, it usually declares that if there be a municipal corporation, such local authority shall be the council.

If unqualified persons, or those not duly elected, intrude themselves into corporate offices, the remedy is by quo warranto. This remedy was formerly only available to the crown, and could only be exercised by the attorney-general; but it is now open to any one, by virtue of the statute 9 Ann. c. 20, which permits an information in nature of quo warranto to be brought with leave of the court(7), at the relation of any person desiring to prosecute the same (who is then styled the relator(r) ), against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit.

It was formerly held that length of time would never * establish a [*591] right gained by usurpation(s); but this doctrine became gradually qualified by rules of court, and subsequently, by statute 32 Geo. 3, c. 58, an information in the nature of a quo warranto, for the exercise of any office or franchise in any city, borough, or town corporate, was required to be brought within six years of the defendant's taking the office upon himself, or of his forfeiture, surrender, or avoidance of it. Also by the 7 Will. 4 and 1 Vict. c. 78, s. 23, it is enacted that every application to the court of queen's bench for the purpose of calling upon any person to show by what warrant he claims to exercise the office of mayor, alderman, councillor, or burgess in any borough, shall

(p) Certain persons who were burgesses or freemen before the passing of the act, by virtue of other qualifications, have their privileges preserved to them by 5 & 6 Will. 4, c. 76, s. 2.

(q) Sect. 4. Per Lord Mansfield, C. J., R. v. Trelawney, Selw. N. P. 13th ed. 1112; and per Wilmot, J., S. C. 3 Burr. 1615. By a rule of court of M. T. 3 Vict. (11 Ad. & E. 2), in order to obtain leave to file the information, there must be an affidavit of some person that the application is made at his instance as relator. And so strictly is this rule enforced, that it has been held to be insufficient

to say that it was the intention of the party, if leave was granted, to become really and bona fide the relator. Reg. v. Hedges, 11 Ad. & E. 163.

(r) No one is allowed to be a relator who has concurred in the election of the person objected to. R. v. Slythe, 6 B. & C. 240; Reg. v. Greene, 2 Q. B. 460; but a person who is estopped from being a relator may make an affidavit in support of the rule. R. v. Brame 4 Ad. & E. 664.

(8) See Tancred on Quo Warranto, 236, et seq.

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