created and endowed alike, real wants are the sooner felt and provided for, and real grievances the sooner redressed.

By Implication.

$21. It is well settled in England that, while a corpora tion must commence or be instituted by the proper authority, yet no fixed, prescribed, or precise form of words is necessary, in order to create a corporation. While the words "to found," "to erect or establish," or "to incorporate," are commonly used to evince the intention to erect or create a body politic, they are not necessary.' The king in the town, &c., &c. These general provisions apply to all incorporated towns when not inconsistent with special charters or acts in reference thereto. Rev. Code 1854, chap. III. p. 586.

New York.-In this state there are cities with local and special charters, and also towns whose powers, duties, and privileges are particularly prescribed by statute. Each town is a body corporate for specified purposes; but it is declared that "No town shall possess or exercise any corporate powers except such as are enumerated in this chapter, or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given." Rev. Sts. part I. chap. XI. p. 337, secs. 1, 2. "The several towns in this state," says, Denio, J., in Lorillard v. The Town of Monroe, 11 N. Y. (1 Kern.) 392, 1854, "are corporations for certain special and very limited purposes, or, to speak more accurately, they have a certain limited corporate capacity. They may purchase and hold lands within their own limits for the use of their inhabitants. They may, as a corporation, make such contracts and hold such personal property as may be necessary to the exercise of their corporate or administrative powers, and, as a necessary incident, may sue and be sued, where the assertion of their corporate rights, or the enforcement against them of their corporate liabilities, shall require such proceedings. (1 R. S. 337, sec. 1 et seq.) In all other respects--for instance, in everything which concerns the administration of civil or criminal justice, the preservation of the public health and morals, the conservation of highways, roads, and bridges, the relief of the poor, and the assessment and collection of taxes-the several towns are political divisions, organized for the convenient exercise of portions of the political power of the state, and are no more corporations than the judicial, or the senate and assembly districts. Ib. sec. 2. The functions and duties of the several town officers respecting these subjects, are judicial and administrative, and not in any sense corporate functions or duties," and hence, as to such subjects, the towns as corporations are not liable for any default or malfeasance of these officers. See, as to the corporate capacity of towns in New York, Denton v. Jackson, 2 Johns. Ch. R. 320; North Hempstead . Hempstead, 2 Wend. 109; affirming S. C. Hopk. 288; Cornell v. Guilfor1, 1 Denio, 510.

1 10 Co. 27 a, 28 a, 29 b, 30; 1 Kyd, 62; 2 Kent Com. 27.

grants a charter to the men of Dale, that they may annually elect a mayor, and plead and be impleaded by the name of the mayor and commonalty. This is considered to be sufficient to incorporate them.' So a grant by a charter containing no direct clause of incorporation to the inhabitants of a town "that their town shall be a free borough, incorporates it. So, also, a grant by the king to the men of Dale that they be discharged of tolls, incorporates them for this particular purpose, but does not enable them to purchase. The settled doctrine is that a corporation may be created by implication, as well as by the use of, words. But this implication, to be sufficient, must clearly evince or express the intention to establish or constitute a body politic or corporate-that is, to invest it with corporate powers and privileges. But the absence of express provision respecting the incidents which the law tacitly annexes to corporations, is considered immaterial. Thus the omission in the charter or act of the words "to plead and be impleaded," or "to have a seal," or "to make by-laws," would not make it essentially defective.' So it would not be essentially defective if the name was omitted, if the

121 Edw. IV. 56. The doctrine of a corporation by implication originated in the time of Edward IV. 1b. 8 Edw. IV. 28. Post, sec. 431.

Kyd, 62, cites Firm. Burg. chap. II.; Madox Hist. Exch. 402. 'Vin. Abr. Corp. F. pl. 6; Пb. pl. 4; Bagot's Case, 7 Edw. IV. 29; Grant on Corp. 43, note e, and cases cited.

1 Rol. Abr. 513; 1 Kyd, 63; The Conservators, &c. v. Ash, 10 Barn. & Cress. 349; 21 Eng. C. L. 97, 1829. "It is not necessary," says Mr. Kyd, "that the charter should expressly confer those powers without which a collective body of men cannot be a corporation, such as the power of suing and being sued, and to take and grant property, though such powers are, in general, expressly given." 1 Kyd Corp. 63. Thus, in the case of the Borough of Yarmouth, 1609, 2 Brownlow & Goldsb. 292, part II. it was decided by the common bench, per Lord Coke, that a grant of incorporation to the burgesses or citizens of a borough or city, which, being an old grant, should be favorably construed, was good, without the words "their successors.” And see, on this subject, the learned opinion of Shaw, C. J., in Overseers of Poor, &c. v. Sears, 22 Pick. 122, 130, 1839. He says: "The mode of perpetuating the existence of a corporate body is not essential; all that is essential is that some mode be provided by the charter or act by which it is constituted, or by the general laws of the government, by means of which it shall be so perpetuated." 22 Pick. 130; The Conservators v. Ash, 10 Barn. & Cress. 249; 21 Eng. C. L. 97.

name could be ascertained from the terms of the charter or act, or from the nature of the thing or matters granted.' Certain attributes or powers are absolutely essential to constitute a body corporate, such as perpetual succession, the right to contract, to sue and be sued as a corporation, &c. Now if the charter or act, which is relied upon as creating a body corporate by implication, instead of simply omitting to express these essential properties, negatives and excludes them, it is plain that the body would not be deemed incorporated."

$22. Although corporations in this country are created by statute, still the rule is here also settled that not only private corporations aggregate, but municipal or public corporations, may be established without any particular form of words, or technical mode of expression, though such words are commonly employed. If powers and privileges are conferred upon a body of men, or upon the residents or inhabitants of a town or district, and if these cannot be exercised and enjoyed, and if the purposes intended cannot be carried into effect, without acting in a corporate capacity, a corporation is, to this extent, created by implication. The question turns upon the intent of the legislature, and this can be shown constructively as well as expressly. This is well illustrated in a case in Massachusetts,' where the question was whether the plain

'Trustees v. Parks, 10 Maine (1 Fairf.) 441; School Com. . Dean, 2 Stew. & Port. (Ala.) 190, 1832.

Grant on Corp. 30.

Thomas v. Daken, 22 Wend. 9, 84, per Cowen, J., and authorities cited; Bow . Allentown, 34 N. H. 351, 372; Stebbins v. Jennings, 10 Pick. 172; Benton . Jackson, 2 Johns. Ch. 325, 326, 1817; Maloney v. The Bank of the State, 4 Ark. 620, 1842; S. C. well digested in Augell & Ames on Corp. sec. 77; North Hempstead v. Hempstead, 2 Wend. 109, 133, opinion by Savage, C. J.; Conservators of River Tone v. Ash, 10 Barn. & Cress. 349; Jeffreys v. Garr, 2 B. and Adol. 841; ex parte Newport Trustees, 16 Sim. 346; 2 Kent Com. 27.

Same cases last cited.

Inhabitants, &c. v. Wood, 13 Mass. 193, 1816-Mr. Fessenden, for the plaintiff, and Mr. Greenleaf, for the defendant. In Bow . Allentown, 34 N. H. 451, it was held that the annexation, by the legislature, of other territory to the town of Allentown made that a corporate town by implication.

tiffs were a corporate body, with power to sue. They were not incorporated expressly. But, by statute, the inhabi tants of the several school districts were empowered, at any meeting properly called, to raise money to erect, repair, or purchase a schoo house, to determine its site, &c., &c., the majority binding the minority. The cause was argued by able counsel, and, after several consultations, the supreme court all finally agreed in the opinion that the plaintiffs possessed sufficient corporate powers to maintain an action on a contract to build a school-house, and to make to them a lease of land. But the intention of the legislature, where it is sought to show that a corporation has been created by implication, must plainly appear.'

Acceptance of Charter.

§ 23. The rule which applies to private corporations, that the incorporating act is ineffectual to constitute a corporate body until it is assented to or accepted by the corporators, has no application to statutes creating municipal corporations. These are imperative and binding without any consent, unless the act is expressly made conditional. All who live within the limits of the incorporated district are bound by them, and can only withdraw from the corporation by removal. Over such corporations the legislature, unless restrained by the constitution, has entire control; and unless otherwise provided by the act itself, or a different intention be manifested, the public corporation is legally constituted as soon as the incorporating act declaring it to exist goes into effect.' But while the legislature is not if it was not so before; and such, also, was the effect, under the constitution of New Hampshire, of a grant to a place having less than one hundred and fifty polls to send a representative. A legislative grant gives capacity to hold the thing granted. Lord v. Bigelow, 6 Verm. 465.

' Medical Institute v. Patterson, 1 Denio, 61; S. C. affirmed in court of errors, 5 ib. 618, 1846; Myers v. Irwin, 2 Serg. & Rawle, 368, 1816; Angell & Ames, Sec. 79, and cases cited; Wells v. Burbank, 17 N. H. 393; Society, &c. v. Town of Pawlet, 4 Pet. (U. S.) 480, 502. To establish a corporation by implication, says Shaw, C. J., in Stebbins v. Jennings, 10 Pick. 172, it must appear that the rights and powers conferred can only be enjoyed by the exercise of corporate powers, and, therefore, if such powers are not necessary, they are not impliedly given.

'Berlin v. Gorham, 34 N. H. 266, 1856, per Bell, J., where it is accord

bound to obtain the acceptance or assent of the municipal corporation, it is well established that a provision in à municipal charter that it shall not take effect unless assented to or accepted by a majority of the inhabitauts, is not unconstitutional, it being in no just sense a delegation of legislative power, but merely a question as to the acceptance or rejection of a charter.' So a provision in a charter, or

ingly held, that to make an incorporation of a town effectual, it is not necessary that there should be a legal town meeting holden in it. See also People v. Wren, 4 Scam. 269; Warren v. Charlestown, 2 Gray, 104; Mills . Williams, 11 Ire. 558; State v. Carran, 7 Eng. 321; Fire Department . Kip, 10 Wend. 267; People v. Morris, 13 Wend. 325, 337; Brouwer e. Appleby, 1 Sandf. 158, 1847; People v. President, 9 Wend. 351; Wood v. Bank, 9 Cow. 194, 205, 1828; Proprietors, &c. v. Horton, 6 Hill, 501; Gorham . Springfield, 21 Maine, 58, 1842; People v. Stout, 23 Barb. 349, 1856; Bristol v. New Chester, 3 N. H. 523, 532, 1826; State v. Canterbury, 8 Fost. 218. Acceptance, when requisite, may, doubtless, be implied, in proper cases, as where no particular mode of expressing acceptance is prescribed, from corporate acts and conduct, as in cases of private corporations. Taylor v. Newberne, 2 Jones Eq. (N. C.) 141, 1855. See Zabriskie v. Railroad Co., 23 How. (U. S.) 381, 397, 1859.

People v. Salomon, 51 Ill. 53, 1869; Alcorn v. Horner, 38 Miss. 652, 1860; Patterson v. Society, &c., 4 Zabr. (N. J.) 385, 1854; Smith v. McCarthy, 56 Pa. St. 359; County v. Quarter Sessions, 8 Barr. 395; Commonwealth v. Painter, 10 Ib. 214; and see also Bull v. Read, 18 Gratt. (Va.) 78, 1853; People v. Reynolds, 5 Gilm. (Ill.) 1; State v. Scott, 17 Mo. 521; Hudson Co. v. State, 4 Zabr. 718; Bank v. Brown, 26 N. Y. 467, 1863. This case asserts a distinction between a bill submitted to the people of the whole state for adoption or rejection, and an act which leaves it to the inhabitants of a particular locality whether they will avail themselves of its provisions. It has been held in New Hampshire that it was competent for the legislature, under the constitution of the state, to enact a penal law which shall have effect only in those towns which adopt it by vote. State v. Noyes, 10 Fost. 279, 1855. An amendment to a city charter was to take effect only when adopted "by a majority of the voters of the city." This was considered to manifest the intention to present the question of acceptance to the voters at a regular city election. The council ordered the vote to be taken at the township polls; the voters of the two organizations possessing different qualifications, but the township and city occupied precisely the same terri tory: Held, that the election was of no validity, and that the amendment had never been duly accepted. Foote v. Cincinnati, 11 Ohio, 408, 1842.

A useful article upon the Constitutionality of Local Option Laws will be found in 12 Am. Law Reg. (N. S.), March, 1873, p. 129. Affirming the principle that municipal or public corporations or the people thereof may by the legislature be invested with the power to regulate or prohibit the