not admitted, be examined and proved.' Where the specific charge stated is insufficient to justify the removal, or where the removal is erroneous and no good and sufficient ground therefor appears, the officer is entitled to a mandamus to restore him. But where the proceedings are in conformity with the charter, and are regular, the sentence will not be inquired into collaterally, nor its merits examined by mandamus or action.'

194. If the amotion be legal and authorized, the office becomes ipso facto vacant from the time the amotion is declared, and another person may be elected or appointed to fill it. If the removed officer afterward continues to act he is a mere usurper, and may be ousted on quo warranto and punished. Amotion from one office does not, of course, affect the party's title to another.*

where the requisites of a valid proceeding to amove are stated. Chalke, 1 Ld. Raym. 226; Rex v. Derby, Cas. Temp. Hardw. 154.

Rex v.

1 Rex v. Feversham, 8 Term R. 356; Harman v. Tappenden, 1 East, 562; Willc. 267; Glover, 334; Murdock v. Academy, 12 Pick. 244. A municipal officer, when removed by the corporation appointing him, is entitled to actual notice of his removal, and to compensation until he receives such notice. Jarvis v. Mayor, &c. of New York, 2 N. Y. Leg. Obs. 396.

2 Rex v. Ipswich, 2 Ld. Raym. 1240; Madison v. Korbly, 32 Ind. 74, 1869; Commonwealth v. German Society, 15 Pa. St. 251, 1850; State v. Jersey City, 1 Dutch. (N. J.) 536. The restoration puts him in the same situation that he was before the attempted removal. Willc. 269; post, sec.

683.

3 Society, &c. v. Commonwealth, 52 Pa. St. 125, 1866; People v. Bearfield, 35 Barb. 254. Though the amotion be illegal, the officers who took part in it are not personally liable, unless both malice and want of probable cause be shown. Harmen v. Tappenden, 3 Espin, 278; S. C., 1 East, 555; Ferguson v. Earl of Kinnoul, 9 Cl. & F. 289.

Jurisdiction as to the election and amotion of officers in corporations, when not changed by statute, belongs to the Common Law Courts and not to Equity. Attorney General v. Earl Clarendon, 17 Ves. 491; Dyer, 332; Cochran v. McCleary, 22 Iowa, 75. Ante, sec. 141. Post, sec. 213.

Jay's Case, 1 Vent. 362; Symmers v. Regem, Cowp. 503; Willc. 268, pl. 704; Rex v. Doncaster, 2 Ld. Raym. 1566; 1 Barnard. 265; Rex v. Chalke, 1 Ld. Raym. 226. Mr, Willcock, 267, pl. 704, whose language is adopted by Glover (Corp. 334), states that, if a person legally amoved continues to act, he is a mere usurper, and that "all corporate acts in which he has concurred are equally void, as though he had never been elected or admitted." But if he is permitted to act after amotion, it would probably

be considered, in this country, that his acts would, as to third persons, be valid, like those of an officer de facto. If the removal be unauthorized, Mr. Willcock states the rule to be, "that all corporate acts in which he has concurred between the moment of his removal and restitution are of equal validity as if he had never been amoved," &c. Willc. 269, pl. 707. If he was regularly present and concurred, it can well be seen how this should be so; but his concurrence when not regularly acting, or when a de facto successor has taken his place and is acting, would not seem to alter the legal quality of the act. In this country the acts of de facto officers are everywhere considered valid as respects the public. Post, secs. 214, 716, note; Cushing . Frankfort, 57 Maine, 541.

CHAPTER X.

CORPORATE MEETINGS.

§ 195. The subject of Corporate Meetings will be considered under the following general heads :

1. Common Law Requisites of a Valid Corporate Meeting-secs. 196-199.

2. Notice of Corporate Meetings at Common Law and Under the English Municipal Corporations Act-secs. 200203.

3. New England Town Meetings; Requisites of Notice and Power of Adjournment-secs. 204–207.

4. Constitution and Meetings of Councils, or of Select Governing Bodies, and herein of Quorums and Majorities; Of Integral Parts; and of Stated, Special, and Adjourned Meetings-secs. 208-225.

5. Mode of Proceeding when Convened-secs. 226–230.

Common Law Requisites of a Valid Corporate Meeting.

§ 196. As respects their mode of action, municipal corporations in this country are of two general classes. In the one, as in the organization of towns in the New England states, heretofore adverted to, all of the qualified inhabitants meet, act, and vote, in person.' In the other, which is the kind that prevails generally throughout the states, and even in many of the larger places in New England, the affairs of the town or city are administered by a select or representative body, usually denominated the Council, and which is elected by the qualified voters of the incorporated place, not assembled together in a meeting, but at an election, where each elector votes separately and by ballot.'

§ 197. The latter class of corporations are properly municipal. The former class are not so strictly municipal

1 Ante, chap. II. sec. 11.

Ante, chap. II. sec. 11 et seq.; ante, chap. IV.

as they are public in their character.' Where there is a council or governing body, the inhabitants or voters, in their natural capacity, have no power to act for or bind the corporation, but the corporation must act, and can be bound only, through the medium of this body. Therefore, authorized acts done by the council are not their acts, but those of the corporation. The council is a body which is constantly changing; it is simply the agent of the corporation. But its members, it has been well observed, are not only not the municipal corporation, but are not even a corporation.' Whether the corporation be of the one class or the other, its affairs must be transacted at a corporate meeting, in the one case of the qualified inhabitants, and in the other of the members of the council or governing body, duly convened at the proper time and place, and upon due notice in cases where notice is requisite.'

§ 198. In England, prior to the General Municipal Corporations Act of 1835, the requisites of a valid corporate meeting depended upon the constitution of the particular corporation under its charter or prescriptive usage. To constitute a corporate assembly there must, at common law, be present, the mayor or other head officer (he being considered an integral part of the corporation, in whose absence no valid corporate act could be done), a majority of the members of each select or definite class (these classes being also considered integral parts), and some members of the indefinite body (indefinite in point of numbers) usually styled the commonalty, and of each of the indefinite classes if there were more than one." If there were no indefinite

1 Ante, chap. I, sec. 9; ante, chap. II. secs. 10, 10 a, and note. ' Regina v. Paramore, 10 Ad. & El. 286;

B. 850; Mayor v. Simpson, 8 Queen's B. 73.

3

see Regina v. York, 2 Queen's Ante, sec. 19.

Dey v. Jersey City, 19 N. J. Eq. 412, 1869; Baltimore v. Poultney, 25 Md. 18, 1866.

Ante, chap. III. sec. 16 et seq.

Ante, chap. III. sec. 16. Further as to mayor, see ante, chap. IX. relating to Municipal Elections and Officers, sec. 147.

• Willc. 52, 53, 66; Rex v. Atkyns, 3 Mod. 23; 1 Rol. Ab. 514; Rex v. Carter, Cowp. 59; Rex v. Smart, 4 Burr. 2143; Rex v. Gaborian, 11 East

class, and the governing body consisted of a select or definite class, the common law requisite of a valid corporate assembly is, that a majority of the select class must be present, and if there was more than one such class, then a majority of each of the select classes of which the corporation is constituted; and the presence of the mayor at a select assembly of this kind is not necessary, unless it is expressly required.' But where a common council exists (which, in contemplation of the ancient law, is a meeting of the body at large, or those of them who thought proper to attend, or were considered by their fellow freemen the men best fitted to attend), though such council has become a select or definite class, there the presence of the mayor or head presiding officer is necessary to a valid assembly, though such presence be not required by the charter."

$ 199. A majority of each definite part means a majority of the number of members of which that part consists, not merely a majority of the existing members of the part; but if the act is to be done by an indefinite body alone, it is valid if done at a meeting duly convened, although but a small fraction of the whole body at large be present. But while the presence of a majority of each definite integral part was necessary to a valid corporate meeting, yet it is settled law that a majority of those present, when legally assembled, will bind the rest.' Not 87, note; Rex v. Morris, 4 East, 26; Rex v. Bellringer, 4 Term R. 823; Rex *. Miller, 6 Ib. 278; Rex v. Varls, Cowp. 250; Rex v. Monday, Ib. 539. See authorities cited in the last note.

2 Willc. 67.

' Rex v. Bellringer, 4 Term R. 810, 1792, and cases cited; Rex v. Miller, 6 Ib. 268; Rex v. Monday, Cowp. 521, 538; Rex v. Devonshire, 1 Barn. & Cress. 609; Rex v. Bower, Ib. 492; Rex v. May, 4 B. & Ad. 843; Rex v. Headley, 7 Barn, & Cress. 496; Willc. 216, pl. 546; Blacket v. Blizard, 9 Barn. & Cress. 851; Ex parte Rogers, 7 Cow. 526, 1827; 1b. note a, 764; Ex parte Willcocks, 7 Cow. 402, and note 462, 463, 1827; Young . Buckingham, 5 Ohio, 485, 489, 1832; Buell v. Buckingham, 16 Iowa, 284, 1864, and cases cited; State v. Deliesseline, 1 McCord (South Car.) 52, 1821; State v. Huggins, Harper (South Car.), 94, 1824; Baker v. Young, 12 Gratt. (Va.), 303, 1855, approving Willc. 216, pl. 546; Labourdette v. Municipality, 2 La. An. 527, 1847; Kingsbury v. School District, 21 Met. 99, 1846; Damon v. Granby, 2 Pick. 345, 355, 1824; Coles v. Trustees, &c. of Williamsburg, 10 Wend. 658, 1833; 2 Kent Com. 293; Angell & Ames Corp. sec. 501.