the citizen, must (at least between all persons except bona fide holders of the securities) be strictly pursued according to the terms and conditions of the grant conferring it.' Thus, under an act authorizing town officers to borrow money upon the credit of the town, and to pay it over to a railroad corporation, to be expended by it "in grading and constructing a railroad," taking in exchange its stock at par, it is not within the power of municipal officers to make a direct exchange of the bonds of the town, even for an equal nominal amount of stock, as this leaves it in the power of the railroad corporation to sell such bonds at a discount. So, in a case where a county had by the legis lative act no authority to issue its bonds to the railroad company unless upon the sauction of a previous vote after thirty days' notice of the election to be held for that purpose, the Supreme Court of Illinois held, in a direct proceeding against the county to enjoin it from issuing its bonds, that although there was an election at which a majority voted in favor of the subscription, yet the failure to give the thirty days' notice was a fatal defect, and the issue of the bonds was restrained.' It may be observed in

'In Pennsylvania the doctrine has been adopted, that equity will compel the holder to take what he gave and interest where the bonds were issued in violation of statute; but quære? See County v. Brinton, 47 Pa. St. 367; Pennsylvania Railroad Company o. Philadelphia, Ib. 193.

Starin v. Genoa, 23 N. Y. 439; Gould v. Sterling, 1b. 439. In the case last cited, Selden, J., p. 460, remarks: "In the present case the only authority given [to the town] by the act is to borrow upon the bonds of the town. No express power to sell the bonds is given, and no such power can, I think, be implied. To borrow money, and give a bond or obligation for it, and to sell a bond or obligation for money, are by no means identical transactions. In the one case the money and the bond would, of course, be equal in amount; in the other they might or might not be equal." Whether such a defence would be available against a bona fide holder of the bonds was not determined. See Woods v. Lawrence County, 1 Black, 386; Moran v. Miami County, 2 Black, 722. That such a defence is not available against a holder for value, see post, sec. 421.

'Harding v. Rockford, &c. Railroad Co., Illinois Supreme Court, May, 1873, 5 Chicago Legal News, 424.

In delivering the opinion of the court, Thornton, J., remarks: "Such municipalities were not created with the view to engage in commerce, or to aid in the construction of railways, but for governmental purposes only. When they exercise the functions given by the statutes under consideration,

conclusion, that the Supreme Court of the United States, in the municipal railway aid bond cases referred to in a subsequent chapter,' have held the doctrine in favor of the inno cent holders for value of such securities, that the municipality may be estopped, by recitals in the bonds, by the subsequent levy of taxes to pay interest thereon, and by retaining the stock which was received in exchange for the bonds or purchased with their proceeds, to set up in defence a non-compliance with preliminary conditions. This is a doctrine, however, which is asserted for the protection of such holders, and has no place in controversies which arise before the issue of the bonds, between the tax-payers or municipality on the one hand, and the company on the other. In such cases estoppel has no place, and the sound doctrine is that compliance with all substantial or material conditions is essential.

the powers granted must not only be clearly conferred, but strictly pursued. If the mode prescribed for carrying into effect the right to issue bonds is not complied with in all material matters, then the bonds should not be issued, and thus the tax-payer will be exempt from the imposition of illegal taxes, and a grievous burden upon his property. These principles have been so elaborately discussed and fully settled by this court, that we need only refer to some of the cases: The People v. Tazewell County, 22 Ill. 147; Fulton County v. The Mississippi & Wabash R. R. Co., 21 Ill. 273; Supervisors of Schuyler Co. v. The People, 15 Ill. 181; Supervisors of Hancock County v. Clark, 27 Ib. 305; Marshall County v. Cook, 38 Ib. 44; Wiley v. The Town of Brimfield (not reported.)"

If aid has been conditionally voted, the condition must be complied with before the company can demand the aid. Railroad Co. v. Hartford, 68 Maine, 23.

1 Post, chapter XIV.

Post, sec. 417, et seq.

CHAPTER VII.

DISSOLUTION OF MUNICIPAL CORPORATIONS.

In England.

§ 109. In England, a municipal corporation may be dissolved, 1. By an act of parliament, this power being considered a necessary consequence of the omnipotence of that body in all matters of political institution.' The king may, by his prerogative, create, but cannot dissolve or destroy a corporation; may grant privileges, but, when vested, cannot take them away.'

It has there often been declared, that a municipal corporation may also be dissolved, 2. By the loss of an integral part, or the loss of all, or of the majority of the members of any integral part, without which it cannot transact its business, unless the parts that remain have the right to act or to restore the corporate succession.'

1 Co. Litt. 176, note; 2 Kyd, 447; Rex v. Amery, 2 Term R. 515; Glover, 408; Angell & Ames, ch. 22, sec. 767; 2 Kent's Com. 305; County Commissioners. Cox, 6 Ind. 403; State v. Trustees, &c. 5 Ind. 77; ante, sec. 15.

Ante, sec. 15; sec. 16; Rex v. Amery, supra; Regents of University v. Williams, 9 Gill and Johns. 365, 409, 1838. In this case, Buchanan, J., in substance, observes: The crown may create, but cannot, at pleasure, dissolve a corporation, or, without its consent, alter or amend its charter. Parliament may do this; but, restrained by public opinion, it has not undertaken to dissolve any private corporation since the time of Henry VIII. so that the power to do so rests wholly in theory. In 1783 a bill was proposed to remodel the East India Company. Lord Thurlow opposed it as subversive of the law and constitution, and, in strong language, declared it to be "an atrocious violation of private property, which cut every English.

man to the bone."

Willc. on Corp. 325, chap. VII. This chapter contains an interesting discussion of the question of dissolution, and it would seem that the author, notwithstanding the occasional judgments and the many and broad dicta in the books, doubts whether there can be an actual and total dissolution of a municipal corporation, either by the loss of an integral part, or by surren

3. By a surrender of the franchise of being a corporation to the crown, whose acceptance is necessary; and to be effectual the surrender must be enrolled in chancery. The power to surrender has been much questioned; the argument in favor of it being, that since by royal grant and acceptance a corporation may be created, so by surrender and acceptance it may be annulled. It is admitted, however, that a corporation created or confirmed by parliament or statute cannot dissolve itself by a surrender of its charter or franchise.'

4. By forfeiture of its charter, through negligence or abuse or its franchise, judicially ascertained by proceedings in quo warranto or scire facias. This mode of dissolution proceeds upon the doctrine, well settled as to private corporations, both in England and in this country, and, perhaps, settled in that country, also, as respects the old municipal corporations when created by royal charter, that there is a tacit or implied condition annexed to the grant of every act or charter of incorporation, that the grantees shall not

der, or by forfeiture. But see 2 Kyd, ch. 5; Glover, ch. 20; Angell & Ames, sec. 769; and particularly Rex v. Morris and Rex v. Stewart, 3 East, 213; 4 East, 17. In Rex v. Passmore, 2 Term R. 241, where the subject was much considered, Lord Kenyon observed, when an integral part of a corporation is gone, without whose existence the functions of the corporation cannot be exercised, and the corporation has no manner of supplying the integral part, the corporation is dissolved as to certain purposes. But the king may renovate either with the old or new corporators.

The leading authorities respecting the effect of the loss of an integral part are, 1 Rol. Abr. 514; Regina v. Bewdley, 1 P. Wms. 207; Banbury's Case, 10 Mod. 346; Rex v. Tregony, 8 Mod. 129; Colchester v. Seaber, 3 Burr. 1870; S. C., 1 Wm. Bl. 591, which, however, is said not to be a case of the loss of an integral part, but of magistrates; Grant Corp. 305, note; Rex v. Passmore, 3 Term R. 241. The foregoing cases are succinctly stated by Mr. Kyd, 2 Corp. ch. 5. See, also, Mayor, &c. of Colchester . Brooke, 2 Queen's B. 383, and Mr. Justice Campbell's learned opinion in Bacon v. Robertson, 18 How. (U. S.) 480, 1855; infra, sec. 113, note; People v. Wren, 4 Scam. 275, citing and relying on Colchester . Seaber, supra; Smith's Case, 4 Mod. 53; Smith v. Smith, 3 Dessaus. (S. C.) 557; Welch v. Ste. Genevieve, 1 Dillon C. C. 130; chapters on Corporate Officers and Corporate Meetings, post.

'Rex. v. Osbourne, 4 East, 326; Rex v. Miller, 6 T. R. 277; Wille. 332, pl. 861; Howard's Case, Hutt. 87; Grant on Corp. 306, 308; Thicknesse Canal Co., 4 M. & W. 472.

neglect to use, or misapply the powers granted, and that if they do, the condition is broken upon which the corpora tion was created, and the corporation thereupon ceases to exist. And in the cases in the time of Charles II. it was held, that the corporation might forfeit its franchise by reason of the neglect or misconduct of its officers.'

In the United States.

§ 110. These various modes of dissolution, except the first, are believed by the author to be inapplicable to municipal corporations in this country as they are generally created and constituted. Here it is the people of the locality who are erected into a corporation, not for private, but for public purposes. The corporation is mainly and primarily an instrument of government. The officers do not constitute the corporation, or an integral part of it. The existence of the corporation does not depend upon the existence of officers. The qualified voters or electors have, indeed, the right to select officers, but they are the mere agents or servants of the corporation, and hence the doctrine of a dissolution by the loss of an integral part has, in such cases, no place. If all the people of the defined locality should wholly remove from or desert it, the corporation would, from necessity, be suspended or dormant, or, perhaps, en

1 1 Blacks. Com. 485; 2 Kyd, 447; Willc. chap. VII. 325, et. seq.; Taylors of Ipswich, 1 Rol. 5; Rex v. Grosvenor, 7 Mod. 199; Smith's Case, 4 Mod. 55, 58; S. C., 12 Mod. 17; Skin. 311; 1 Show. 278; Rex v. Saunders, 3 East, 119; Mayor, &c. of Lyme v. Henley, 2 Cl. & F. 331; Rex v. Kent, 13 East, 220; Priestley v. Foulds, 2 Scott N. R. 205, 225; Attorney General . Shrewsbury, 6 Beav. 220. The American cases relating to the dissolution of private corporations by forfeiture of their charters; what will constitute sufficient ground of forfeiture; and the mode of proceeding to ascertain and enforce the forfeiture, are collected, and the result very clearly and satisfactorily stated, in Angeli & Ames on Corporations, chap. XXII. See, also, 2 Kent Com. 305. Private corporations may lose their legal existence, 1. By the act of the legislature; 2. By the death of all their members; 3. By a forfeiture of their franchises; and 4. By a surrender of their charter. No other mode of dissolution is anywhere alluded to. Boston Glass Manuf. v. Langdon, 24 Pick. 49, 52, per Morton, J.; Commonwealth v. Union Ins. Co., 5 Mass. 230, 232; Riddle v. Locks and Canals, 7 Mass. 169; School . Canal, &c. Co., 9 Ohio, 203; Canal Co. v. Railroad Co. 4 Gill & Johns. 1; Vincennes University v. Indiana, 14 How. 268.