the judges of the Supreme Court and other judges named in the act. It is to be remarked, however, that the legisla ture did not attempt to change or pervert the trusts themselves. Certain it is, that without legislative authority, a municipal corporation holding the legal title to property in trust, cannot use the funds derived from such property for corporate purposes, or, indeed, for any except the trust purposes.*

1 Philadelphia v. Fox, 64 Pa. St. 169, 1870. Post, sec. 437 et seq.

Whité v. Fuller, 39 Vt. 193; ante, sec. 37; Montpelier v. East Montpelier (contest as to trust property on division of town), 27 Vt. (1 Wms.) 704, 1854; same controversy in chancery, 29 Vt. (3 Wms.) 12. See, also, Trustees, &c. v. Bradbury, 2 Fairf. (Me.) 118; Poultney v. Wells, 1 Aik. (Vt.) 180; Plymouth v. Jackson, 15 Pa. 44; Harrison v. Bridgeton, 16 Mass. 16; Daniel v. Memphis, 11 Humph. (Tenn.) 582; Trustees of Academy v. Aberdeen, 13 Sm. & Mar. (Miss.) 645, as to which, quere. Aberdeen . Sanderson, 8 Ib. 670; Chambers v. St. Louis, 29 Mo. 543; Holland e. San Francisco, 7 Cal. 361; Girard v. Philadelphia, 7 Wall. 1. See, post, chapters on Corporate Property and Remedies Against Illegal Corporate Acts. A conveyance was made in 1873, by the proprietors of the lands, to the selectmen of North Yarmouth, of "all the flats, sedge banks, and muscle beds in said town, lying below high water mark,” "for the sole use and benefit of the present inhabitants, and of all such as may or shall forever inhabit or dwell in said town," &c. It was decided that this property was held by the town as a public corporation, subject to legislative control, in trust for the use of all of the inhabitants, and that upon a division of the town, it was competent for the legislature to provide that the original town should still hold such property in trust for the inhabitants of both towns. North Yarmouth v. Skillings, 45 Maine, 133, 1858. Post, sec. 127.

To another town in Maine, lands were granted by Massachusetts prior to the separation of Maine therefrom, for the use of its schools. The legislature, in 1803, on the application of the town, authorized the sale of the lands, and gave to certain designated trustees the right to control the funds raised by the sale of the lands. This was considered as constituting a contract, and it was accordingly held that a subsequent act of the legislature, authorizing the town to choose a new set of trustees, and directing the first trustees to deliver over the trust property, was, agreeably to the principles settled in the Dartmouth College Case, unconstitutional and void. The Trustees, &c. v. Bradbury, 11 Maine, 118, 1834; Yarmouth v. North Yarmouth, 34 Maine, 411, 1852. In this last case the trustees of the funds were a private corporation, and not subject to legislative control. In North Yarmouth v. Skillings, 45 Maine, 133, 1858, the trustees of the property or fund in question were a public corporation, and subject to such control. The rule as to private and public corporations is well exemplified in these two cases. See, also, Norris v. Abington Academy, 7 Gill & Johns. (Md.) 7;

Bass. Fontleroy, 11 Texas, 698; Louisville v. University of Louisville, 15 B. Mon. 642.

In the State v. Springfield Township, 6 Ind. (Porter) 83, 1854, it was held, that a law of the state (act of 1852), so far as it diverted the proceeds of the sale of the sixteenth section (granted by act of Congress of April 19, 1816) from the use of schools in the congressional township where the land was situated, to the use of the school system of the state at large, was in contravention of that section of the state constitution (sec. 7, art. VIII.) which provides, that "All trust funds, held by the state, shall remair inviolate, and be faithfully and exclusively applied to the purpose for which the trust was created."

CHAPTER V.

MUNICIPAL CHARTERS.

General Municipal Powers.-Their Nature and Construction.

§ 48. This chapter will treat of Municipal Charters, and the principles upon which they are construed, and of the general nature of the powers which they confer upon the corporation or upon its legislative or governing body. The subject will be considered under the following heads: 1. Charters Defined. 2. Judicially Noticed. 3. Proof of Corporate Existence. 4. Repeal and Amendment of Charters. 5. Conflict between General Laws and Special Charters. 6. Extent of Corporate Powers, Limitations Thereon, and Canons of Construction. 7. Usage as affecting Powers and Their Interpretation. 8. Discretionary Powers. 9. Public Powers Incapable of Delegation. 10. Or Surrender. 11. Mandatory and Discretionary Powers. 12. Exemption of Revenues from Judicial Seizure, and herein of Garnishment.

1

Charters Defined.

§ 49. We have before seen that, in this country, municipal corporations are created by legislative act, either in the form of a legislative charter or by general incorporating statutes. A municipal charter, granted by the crown in England is a written instrument, made in the form of letters patent, with the great seal appended to it, addressed to all the subjects, and constituting the persons therein named, and their successors, a body corporate for or within the place therein specified, and prescribing the powers and duties of the corporation thereby created. But such charters are inoperative until accepted.' Here, as we have else1 Ante, secs. 19, 20.

Ante, secs. 15, 23. Outline of charter of the middle ages, ante, sec. b.

167

where shown, the legislature creates, alters, and, in the absence of constitutional restriction, can destroy, municipal and public corporations at its will, and it invests them with such powers, and requires of them such duties, as it deems most expedient for the general good, and for the benefit of the particular locality.' No precise form of words is necessary to create a corporation, and a corporation may be created by implication.❜

Charters Judicially Noticed.

§ 50. Courts will judicially notice the charter or incorporating act of a municipal corporation without being specially pleaded, not only when it is declared to be a public statute, but when it is public or general in its nature or purposes, though there be no express provision to that effect. But the acts, votes, and ordinances of the corporation are not public matters, and must be pleaded.'

Proof of Corporate Existence.-User.-Legislative Re

cognition.

51. The primary evidence of a special charter or act of incorporation, in this country, is the original, or an authenticated copy, or printed copy, published by authority. But if primary evidence cannot be had, parol or secondary evidence of its existence is admissible. Thus, where a public corporation had existed for a long space of time (in the instance

Ante, secs. 21, 22.

'Beatty v. Knowles, 4 Pet. (U. S.) 152, 157, 1830; Aldermen v. Finley, 5 Eng. (Ark.) 423, 1850; Fauntleroy v. Hannibal, 1 Dillon C. C. 118, 1871; Prell . McDonald, 7 Kansas, 426, 1871; West v. Blake, 4 Blackf. (Ind.) 234, 1836; Briggs o. Whipple, 7 Vt. 15, 18, 1835; Case v. Mobile, 30 Ala. 538, 1857; Clarke v. Bank, 5 Eng. (Ark.) 516; State v. Mayor, 11 Humph. (Tenn.) 217, 1850; see Vance v. Bank, 1 Blackf. (Ind.) 80, and note (2); 6 Bac. Abr. 374, note; Young v. Bank, &c., 4 Cranch, 384; Swails v. State, 4 Ind. 516, 1853; Portsmouth, &c. Co. v. Watson, 10 Mass. 91; Clapp ". Hartford, 35 Conn. 66; People v. Potter, 35 Cal. 110; see, post, chapter on Ordinances, sec. 355. Where a public law creates the mayor and aldermen an incorporated body, no averment or proof is necessary to establish the existence of the corporation. State v. Mayor. 11 Humph. (Tenn.) 217, 1850. 4 Stockbridge v. West Stockbridge, 12 Mass. 400, 1815; Braintree v. Battles, 6 Vt. 395, 1834 Blackstone v. White, 41 Pa. St. 330.

before the court for forty years), the court admitted proof of its incorporation by reputation, the original act not being found, and it being probable that it had been destroyed by fire. So evidence that a town has for many years exercised corporate privileges, no charter, after search, being found, is competent to go to the jury to establish that it was duly incorporated. And where there is no direct or record evidence that a place has been incorporated, and it is sought to show the fact of incorporation from circumstantial evidence, the question is for the jury, and not the court; that is, the jury, under the circumstances, determine whether there is or is not sufficient ground to presume a charter or act of incorporation, or the due establishment and existence of a corporate district under some general act.' So corporate

'Dillingham v. Snow, 5 Mass. 547, 1809. S. P. Bassett v. Porter, 4 Cush. 487, 1849. In view of the defective manner in which the records of quasi corporations—such as school and road districts, and the like—are kept, the courts, in the absence of any statute requiring record evidence, will permit the existence and organization of the corporation to be proved by reputation and acts, where these facts do not appear of record. Barnes. Barnes, 6 Vt. 388, 1834; Londonderry v. Andover, 28 Ib. 416, 1856; Sherwin v. Bug bee, 16 Ib. 439; Ryder v. Railroad Company, 13 Ill. 523; Highland Turnpike v. McKean, 10 Johns. 154; Owings v. Speed, 5 Wheat. 420. See chapter on Corporate Records and Documents, post.

Irregularities in the proceedings to organize a corporation are not favored when set up, long afterwards, to defeat the corporate existence. Jameson v. People, 16 Ill. 257, 1855; Dunning v. Railroad Company, 2 Ind. 437, 1850; Fitch v. Pinckard, 4 Scam. (Ill.) 76.

Where a corporation is created, and declared to exist as such, by the legislature, without condition, proof of organization or user is not necessary to enable them to maintain an action. Cahill v. Insurance Company, 2 Doug. (Mich.) 124; Fire Department v. Kip, 10 Wend. 266, 1833. And see Proprietors, &c. v. Horton, 6 Hill (N. Y.) 501; People v. President, 3 Wend. 351; Wood v. Bank, 9 Cowen, 194, 205. When construed to be immediately created, the omission to do certain acts prescribed to organize the institution, was held immaterial as respects persons contracting with the corpora tion. Brouwer v. Appleby, 1 Sandf. 153, 1847. S. P. People v. President, 9 Wend. 351. See, also, ante, sec. 23.

? New Boston v. Dumbarton, 15 N. H. 201, 1844; Mayor of Kingston v. Horner, Cowp. 102, per Lord Mansfield.

'Bassett v. Porter, 4 Cush. 487, 1849; New Boston v. Dumbarton, 12 N. H. 409, 412, 1841. S. C., 15 N. H. 201; Robie v. Sedgwick, 35 Barb. 819, 1861. The exercise of corporate powers by a place for twenty years, without objection, and with the knowledge and assent of the legislature,