CH. 22. 3 Burr 1827, Rex v. Spen ser.-3 D. & E. 189, New ling v. Francis. 1 Esp. 7, cites 2 Lev. 252, Surgeons' Company of London v. Pelson.Clift. 901, 902. 12 d. 269, v. Barber. 686, Latham Latch. 402. public. law of the land. Where the power to make by-laws is vested in the body at large, they may delegate it to a select body-per Lord Mansfield. This position certainly has many exceptions. No by-law can exclude an integral part of the electors, or narrow the description of the eligible persons, or add a qualification not required by the charter or statute. 4 Burr. 2204; 4 Inst. 48, 49. Where the manner of electing officers is not pointed out in the charter &c., the corporation may from time to time make by-laws to regulate their elections. By-laws are usually enforced by actions of debt and assumpsit. Hence, the numerous questions respecting them mostly arise in these actions. See more of by-laws, Debt, Ch. 143. 2. If "a person becomes a member of any society or company &c., he thereby agrees to abide by all legal claims arising against him from the by-laws, or local regulations of that society to which he belongs. Therefore, indebitatus assumpsit was held to lie against the deft. for £20, being a penalty forfeited by the by-law of the company, for not serving the office of steward in pursuance of such by-law." This action was upon the principle, that when the deft. became a member of this company, he impliedly engaged to obey its by-laws, and promised tacitly to pay such sums as he thereby should forfeit. Where a member must aver his title to his shares, 6 D. & E. 67. 3. As every town and corporation in the United States must necessarily have its rules and regulations, or in other words, its by-laws for governing its affairs, and its members, in all those minor special concerns to which the statutes and general laws of the land cannot well extend; these by-laws must be very numerous, and at first view it may naturally appear that the actions grounded on them must be very numerous, but experience is otherwise. It is but seldom in practice we find an action necessary to enforce a by-law. They commonly concern small matters, are simple and plain, and generally understood by all. 4. But questions whether this or that corporation has power to make this or that by-law, or whether, when made it is good or not, often arise in some shape or form; the discussion of which in detail I shall not enter into in this place. I shall here only state the grounds on which corporations have this power, and a few principles on which by-laws are generally allowed. A true principle is laid down by the Supreme Court of the United States, to wit: a corporation which has only a legal existence can act only in the manner prescribed by its act of incorporation, from which it derives all its power. This is to them an enabling act. It alone enables the body politic to act and contract, and it must observe the mode of contracting named in the statute. 2 Cranch 127 to 170, Head & al. v. Providence Insurance Company; 2 Johns. R. 109, 115, Beatty v. Marine Insurance Company. 5. How far Congress has power to create a corporation or body politic, is a question that was much discussed in the case of the Bank of the United States, incorporated in 1791. The better opinion certainly was, that the Federal legislature had this power. § 6. There never has been a doubt, but that each state legislature in the Union has power to make corporations of almost any description, civil or religous. And so it is universally admitted the Federal legislature may, in places in which it has exclusive legislation, as in the District of Columbia and other places. Cн. 21. Art. 1. 1786, sect. 7, Laws Revis edr 7. By this act towns in Massachusetts are empowered to Mass. Act, make "by-laws for directing, managing, and ordering their March 23, prudential affairs as they shall judge most conducive to the the Colony peace, welfare, and good order thereof; and to annex penal- and Province ties for the observance of the same not exceeding $5 for each offence, to enure to such uses as they shall therein direct, provided they be not repugnant to the general laws of the government; provided also, that such orders and by-laws shall have the approbation of the court of General Sessions of the peace of the same county." Other corporations very numerous, and of different kinds, have powers by statute law, usually in their respective acts of corporation, to make bylaws under restrictions similar in principle to those above expressed. This power to make by-laws in towns cannot be delegated. 8 We have not in the United States, strictly speaking, corporations by prescription. Almost universally the original of each corporation is a matter of record; however, though the country is young, yet it is old enough for prescription. Rights and corporations may have existed beyond the memories of the oldest persons, or further back than any records on the subject are to be found. 9. In this case it was decided, that after forty years a 5 Mass. R. corporation may be proved without shewing an act of incor- 547, 563, in Dillingham poration. In this case the Secretary of the Commonwealth v. Snow & al. certified, that no act of incorporation could be found of the North Parish in Harwich. The defts. were permitted to prove a parish by reputation, it having existed above forty years. 10 Johns. R. 389. Though a turnpike corporation pledge the income of a toll-gate, it retains the possession, and if cut down, has trespass, and though a penalty be given for the injury also. CH. 22. $ Salk. 76, Carter 86. 10. It is laid down in Salkeld &c., that in all charters of incorporation there is a special clause by which they have power to make by-laws; but that such enabling clauses are needless, "because they are included in the very act of incor77.-12 Mod. porating," as a power to sue, to purchase, &c. "For as the 686, 687.natural body has reason to govern itself, so bodies corporate Latch. 564.must have laws." But all by-laws must be subject or suborRaym. 294.dinate to the government, and are void when not so. And, 3 East 185, therefore, under a general power to make by-laws it is clear, a -8 Co. 129. law cannot be made to restrain trade, but may be to regulate it; as it is for the public good that trade be free and encouraged, it is against the public interest to restrain it; but other4 Burr. 1921. wise merely to regulate. 1 Wils. 233; 1 Ld. Raym. 499; 7 D. & E. 543. 1 Burr. R. 16. -Cro. El. 803.-1 W. Bl. 372. 10 Co. 31. Hob. 211. Salk. 142. 5 Co 63. Moor 579. Hob. 212.- 11. A corporation may make by-laws without an express Carth. 492.- power given by its charter to make them; though created 5 Mod. 439.- within memory, or for a particular purpose. It may be added it is of necessity and in the nature of the case, for without such a power it exists to little or no purpose. And whenever a number of persons are made a body politic to certain purposes, a power to make rules and regulations in subordination to the law of the land to effect those purposes when not expressed is necessarily implied, especially in regard to its own members, as to enact a penalty to compel a member to serve in an office of the corporation. 7 East 487. 8 T. R. 352, ard & al. 12. It is usual, however, in the United States, by the charter or act of incorporation to enable this body politic to sue and be sued, and to establish such by-laws as they may find convenient for governing the corporation, and managing their affairs, not repugnant to the laws and constitution of the state. Where one makes his deed to a corporation by a certain name, he and those claiming under him admit that name. 13. A by-law is not good or to be executed when against the public interest or public policy. When a by-law is so or not is a question often agitated, and will be pursued further in Ch. 143; at present only a case or two will be mentioned. (How a by-law must be founded on statute or custom, 2 Maule & Sel. 54.) 14. In this case it was held, that a by-law made by a Rex r. Stew company of fishermen carrying on trade in partnership, to prevent any one of the members carrying on trade separately on his own account is a good by-law. This may be so by contract, and it seems it may be so by a by-law. Lord Kenyon in this case said, "there is nothing illegal in partners agreeing to prevent any one partner carrying on a separate trade elsewhere on his own account, and if not, I do not see any reason why the same thing may not be prevented by a by-law in the case of a company like the present." This was a company of freemen and partners by prescription. He added, a by-law can be good in part and bad in part, only when the two parts are entire and distinct from each other. "And when the power of removal is not given to any particular part of a body, it vests with the company at large.' CH. 22. Art. 1. 15. A power to make by-laws vested in the body at 1 Bl. Com. 122, Chris. large, may be delegated to a select body to be thereby exeNotes.cuted. This is often practised, as where powers are given to bank corporations at large, these powers have been frequently delegated to their boards of directors. 3 Burr. 1837. § 16. A corporation made for a particular purpose is dis- 12 Mod. 19. solved whenever that purpose ceases. rard. 17. It has been held, that a parish may tax themselves to 12 Mod. 448, carry on a suit for the benefit of the parish; but in this case Rex v. Evea majority will not bind the rest as in the case of other taxes. This was said in the case of an English parish, and the court seems to have gone on the ground of individual consent to the tax, not on the ground of a corporate vote. Hence, the question will still arise in each case, how for a parish or a corporation can, by vote, tax its members, and generally no further than power is given expressly or impliedly. 38.-4 Com. D.247.-Cro. -1 Rol. Abr. 1 Bl. Com. 475.-1 Bac. Abr. 507 85.-1 Ventr. 18. A corporation aggregate of many persons cannot do Co. L. 66,67, homage or receive it, "for the fee vests not either jointly, or 94.-6 Co. in common, in the persons whereof the society consists, but in the body politic formed by operation of law from the persons so Car. 170.united, which is invisible and exists only in supposition of law, 1 Dyer 102 B. and can do no act but by attorney," nor without writing. 514-Cro. Hence, a corporation aggregate cannot without deed command El. 815.their bailiff to enter upon their lessee for condition broken. This must be understood where a deed is by law required in an individual's case; for it is a very common case for a cor- 1 Johns. Ca. poration aggregate to act and to empower an individual in its 47: See Ch. behalf by a written vote, attested by its clerk, secretary, 143, a. 1, s. 9. cashier, or other proper office. And it has been decided by the Supreme Court of the United States, that a corporation can without deed authorize one to act in its behalf, this too must mean where the thing to be done does not require a deed; for a corporation cannot empower its agent without deed to convey lands in fee, as in such case the law requires the conveyance to be by deed. Hence, the power must be by deed, so in an individual's case to be recorded with the deed, however the practice has been very general to authorize by vote agents and committees to convey lands. 19. In replevin, distress by the deft. for a forfeiture for 3 Wils. 155. the breach of a by-law of the plt's. cattle on a common &c., 171, Gerrish which the plt. replevied. Special pleas by the deft., in which v. Rodman. CH. 22. 8 Mass. R. 326, Titcomb v. Union M. & F. I. Com pany. he claimed a right to distrain for a penalty for the breach of a by-law, and all former by-laws on the subject, but these former by-laws were not set forth in his plea; and held bad, for a by-law must be set forth that the court may judge of it. 20. Case against the corporation for not transferring to the plt. fifteen shares, he took by execution from George A. Rogers, attached April 7, 1809, as his. July 21, 1809, they were levied on, and August 22, 1809, sold to the plt. at $5 a share, being previously pledged to the company for Rogers' debt. Sept. 4, 1809, Bagley, the officer, left a copy of the execution and return at the office of the company, and the plt. tendered to the secretary his reasonable fees for recording and transferring the said shares to him &c. The act incorporating the company passed February 27, 1807, was read. This act prescribed a particular mode for attaching and selling a member's shares on execution. Held, this mode superceded that prescribed in the general law, passed March 8, 1805, on the same subject. The sale by Bagley was meant to be on this act, and was void. And Sewall J. doubted if the general statute which related to turnpikes, canals, and bridges, and other companies, extended to banks and insurance companies, so unlike in the condition and management of their property from turnpikes, canals, and bridges. And said, perhaps the other companies meant other like companies, and not monied institutions. The special manner must prevail. new bank is not liable to pay the bills of a former bank, though of the same name, and has the same officers, though they often declare the bills of the old as good as the bills of the new bank. The corporations are distinct. 14 Mass. R. 58,64, Wyman v. Hallowell & Augusta Bank, and 181, 184. 2 Mass. R. 37, 21. Cases in the United States. In this case the New Union TurnEngland Marine Insurance Company was sued as trustees to pike Corporation v. N. E. Jenkins, on Massachusetts trustee act of February 28, 1795, M. 1. Compa- and it was decided, that a corporation aggregate cannot be sued as trustee. This was assumpsit by a turnpike corporation in New York, against one of its members on his promise to pay his assessments on his, shares and neglecting to pay them. ny & Trustees of & al. 2 Mass. R. 269, Ellis v. Marshall. A 22. In this case it was held, that if the legislature by statute incorporate certain persons by name, to make a street and subject the individuals to assessments made by the corporation to meet its expenses, one named in the act is not bound, unless he assented to it. Without such consent he is not a member. "All incorporations to make turnpikes, canals, and bridges &c., must be considered as a grant or charter, obtained at the request of individuals for their benefit." One may refuse the grant whose name is inserted in it by mistake or |