existence may be inferred and judicially noticed, although the incorporating act or charter cannot be found, if the fact of incorporation is clearly recognized by subsequent legislation, not in contravention of any constitutional provision respecting the mode of creating corporations.'

Repeals and Amendments, and their Effect.

§ 52. The powers conferred upon municipal corporations may at any time be altered or repealed by the legislature, either by a general law operating upon the whole state, or, in absence of constitutional restriction, by a special act.' A charter may be amended, and the name of the place and the governing body may be changed, and its boundaries altered, while in law the corporation remains the same. furnishes conclusive evidence of a charter, which has been lost; or, in other words, of a corporation by prescription, which supposes a grant. Bow v. Allentown, 34 N. H. 351, 1857. In this case it was also held that an act of incorporation subsequently passed does not raise any conclusive presumption that the town was not before incorporated. Long use and acquiescence are evidence in support of the legal existence of a municipal corporation. People v. Farnham, 35 Ill. 562; Jameson v. Peopie, 16 Ill. 257, 1855; People v. Maynard, 15 Mich. 463, 1867. Long acquiescence in the proceedings of a school district is presumptive evidence of the regular organization of such district. Sherwin v. Bugbee, 16 Vt. 439, 1844; Londonderry v. Andover, 28 Ib. 416. "It is now well settled in this state, that the mere fact of a school district maintaining its existence and operation for a great number of years-say fifteen-is sufficient evidence of its regular organization. The same rule of presumption must be applied to the subdivision of the town into districts." Per Redfield, J., in Sherwin v. Bugbee, supra.

1 Jameson v. People, 16 Ill. 257, 1855; Swain v. Comstock, 18 Wis. 463, 1864; People v. Farnham, 35 Ill. 562; Bow v. Allentown, 34 N. H. 351, 1857; Society, &c. v. Pawlet, 4 Pet. 480, 1830; Railroad Company v. Chenoa, 43 Ill. 209; Virginia City v. Mining Company, 2 Nev. 86, 1866; Railroad Company v. Plumas County, 37 Cal. 354. An'e, scc. 21.

? Per Smith, J., Sloan v. State, 8 Blackf. (Ind.) 361, 1847, approving People v. Morris, 13 Wend. 325; Daniel v. Mayor, &c., 11 Humph. (Tenn.) 582; State v. Mayor, 24 Ala. 701, 1854; Girard v. Philadelphia, 7 Wall. 1, 1868. Ante, sec. 24; sec. 29 et seq. The provisions of an amendatory act, reducing the number of councilmen, though the act took effect at once, were postponed until the next year, when they could be called into requisition at the election-no earlier election being provided for—and meanwhile the existing council remained unaffected by the amendment. Scovill Cleveland, 1 Ohio St. 126, 1853. Same principle applied. Reading r Keppleman, 61 Pa. St. 233, 1869.

The insertion in an amended charter of the same provisions that were contained in the old is not, unless such upon the whole act appears to have been the intention of the legisla ture, a repeal of the latter. The law on this subject is thus stated: "Where a statute does not, in express terms, annul a right or power given to a corporation by a former act, but only confers the same rights and powers under a new name, and with additional powers, such subsequent act does not annul the rights and powers given under the former act and under its former name," there being no express repeal.'

§ 53. A repeating clause in a revised and amendatory charter, when a former provision is included in the revised act, does not, as to such provision, interrupt the continuity of the original act. Where the original charter of a city prescribed the qualifications required to make a person eligible to the office of mayor, and contained a proviso that a certain fact disqualified, and an amendatory act, in dealing in the same subject, copied all of the original act

State, &c. v. Mobile, 24 Ala. 701, 1854; Girard v. Philadelphia, 7 Wall. 1, 1868; Commonwealth v. Worcester, 3 Pick. (Mass.) 474, 1826; Grant on Corp. 24, and cases cited; Ib. 305. See chapter on Dissolution, post. "There is no doctrine better settled," says Mr. Justice Strong, "than that a change in the form of government of a community does not ipso facto abrogate pre-existing law, either written or unwritten. This is true in regard to what is strictly municipal law, even when the change is by conquest. The act of assembly converting a borough into a city did not, therefore, of itself, and in the absence of express provisions to that effect, either repeal the former acts of assembly relative to the borough, or annul existing ordinances. It was solely a change in the organic law for the future, and left unaffected the existing ordinances, precisely as a change of a state constitution leaves undisturbed all prior acts of assembly." Trustees of Academy v. Erie, 31 Pa. St. 515, 517, 1858. As to transfer to new or reorganized corporation of the property and rights of the old or former corporation, see Girard v. Philadelphia, 7 Wall. 1, 1868; Savannah . Steamboat Company, R. M. Charlt. (Geo.) 342; Fowler v. Alexandria, 3 Pet. 398, 408; Municipality v. Commissioners, 1 Rob. (La.) 279. Transition from town to city organization does not dissolve the corporation or extinguish its indebtedness. Olney . Harvey, 50 Ill. 453, 1869; Maysville v. Shultz, 3 Dana, 10, 1865; Frank v. San Francisco, 21 Cal. 668; post, Chapter VII.

2 St. Louis v. Alexander, 23 Mo. 483, 1856.

except the proviso, which was omitted, the court held that the proviso in the original act was not repealed, placing stress, however, upon the express declaration that all parts of the new act inconsistent with, or contrary to, the old one, were repealed. There is, however, much room to contend that the subject matter having been revised in the amendatory act in the manner it was, the legislative intention was to repeal, and not to continue in force, the proviso.' A general law, forbidding the opening of streets through cemeteries, is not repealed by a subsequent act extending the limits of a town and appointing commissioners with authority "to survey, lay out, &c., streets and alleys, as they shall deem necessary within said limits," since both acts can stand, and repeals by implication are not favored.' So a general statute expressly prohibiting a municipal corporation from debarring citizens from selling at wholesale in the city market is not repealed, by implication, by a subsequent act, by which the city authorities are invested with power to pass such ordinances as appear to them necessary for the security, welfare, &c., of the city. So, also, where a state law required auctioneers to take out a state license, and a subsequent charter to a city gave it power “to provide for licensing, taxing, and regulating auctions," &c., it was held that a license granted by the city corporation to an auctioneer did not relieve him of the necessity of obtaining, also, a license from the state authorities, the court being of opinion that both statutes should and ought to stand, as they were not inconsistent."

General Laws and Special Charters.-Conflict.-Construction.

§ 54. It is a principle of very extensive operation, that statutes of a general nature do not repeal, by implication, charters and special acts passed for the benefit of particular

'State v. Merry, 3 Mo. 278, 1833. Consult Goodenow v. Buttrick, 7 Mass. 140, 143; King v. Grant, 1 Barn. & Adol. 104.

2

Egypt Street, 2 Grant (Pa.) Cas. 455, 1854. See, further, infra, sec. 54, as to repeals by implication.

municipalities;' but they do so when this appears to have been the purpose of the legislature. If both the general and special acts can stand, they will be construed accordingly. If one must give way it will depend upon the supposed intention of the law-maker, to be collected from the entire course of legislation, whether the charter is superseded by the general statute, or whether the special charter provisions apply to the municipality, in exclusion of the general enactments. So particular provisions of charters should be read and construed in the light of the whole instrument, of all preceding charters, of the general legislation of the state, and of the object of the legislature in the erection of municipalities, as before explained.'

Bond . Hiestand, 20 La. An. 139; Railroad Company v. Alexandria, 18 Gratt. (Va.) 176, 1867; Hammond v. Haines, 25 Md. 541; Louisville v. McKean, 18 B. Mon. 9; Cumberland v. Magruder, 34 Md. 381, 1871; post, secs. 89, 107. Repeals by implication are not favored; and special laws conferring particular rights upon municipal corporations were held not to be repealed by subsequent statutes, general in their character. Ottawa v. County, 12 Ill. 339; Egypt Street, 2 Grant (Pa.) Cas. 455, 1854; supra, sec. 53. A general statute, repealing all acts contrary to its provisions, held not to repeal a clause in the charter of a municipal corporation upon the same subject. State v. Branin (taxation), 3 Zabr. (N. J.) 484, 1852.

The principle that general legislation on a particular subject must, in the absence of anything showing a different intent on the part of the legisla ture, give way to inconsistent special legislation on the same subject, is recognized and applied in the following cases: State v. Morristown, 33 N. J. Law, 57, 1868; State v. Branin, Zabr. 484; State v. Clark, 1 Dutch. 54; State v. Jersey City, 5 Ib. 170; Jersey City v. Railroad Co., 20 N. J. Eq. 360; in re Goddard, 16 Pick. 504; Railroad Company v. Alexandria, supra. In Bank v. Bridges, 1 Vroom (N. J.) 112, and State v. Miller, Ib. 368, special laws gave way to general laws, because the legislature had annexed to the latter a repealing clause, abrogating all inconsistent local or special acts. Per Depue, J., 33 N. J. 57, 60. See Bank v. Davis, 1 McCarter Ch. (N J.) 286; Clintonville v. Keeting, 4 Denio, 341; Tierney v. Dodge, 10 Minu. 166. Other illustrations will be found in the chapters on Ordinances and Taxation, post, sec. 614.

Alexandria v. Alexandria (taxing power), 5 Cranch, 2, 1809; Grant on Corp. 27; Canal Company o. Railroad Company, 4 Gill & Johns. 1; Smith v. Kernochen, 7 How. 198; Janesville v. Markoe, 18 Wis. 350; ante, secs. 9, 10, 12. Acts in pari materia should be construed together; and on this principle, the definition of the word "owner," in a subsequent paving act, was considered as proper to be adverted to, and as applicable to the same word in prior acts on the same subject. Holland v. Baltimore, 11 Md. 186. 1857.

Extent of Power-Limitation-Canons of Construction.

§ 55. It is a general and undisputed proposition of law that a municipal corporation possesses, and can exercise, the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in, or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation, nor its officers, can do any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. Their reasonableness, their necessity, and their salutary character have been often vindicatea, but never more forcibly than by the late learned Chief Justice Shaw, who, speaking of municipal and public corporations, says: "They can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of their association. This principle is derived from the nature of corporations, the mode in which they are organized, and in which their affairs must be conducted. In aggregate corporations, as a general rule, the act and will of a majority is deemed in law the act and will of the whole-as the act of the corporate body. The consequence is, that a minority must be bound not only without, but against, their consent. Such an obligation may extend to every onerous duty, to pay money to an unlimited amount, to perform services, to surrender lands, and the like. It is obvious, therefore, that if this liability were to extend to unlimited and indefinite objects, the citizen, by