tirely cease; but the mere neglect or mere failure to elect efficers will not dissolve the corporation, certainly not while the right or capacity to elect remains. In this respect municipal corporations resemble ordinary private corporations, which exist per se, and consist of the stockholders who compose the company. The officers are their agents, or servants, but do not constitute an integral part of their corporation, the failure to elect whom may suspend the functions, but will not dissolve the corporation."

§ 111. Since all of our charters of incorporation come

Mr. Grant, in his work on Corporations, considers it doubtful whether an information in the nature of quo warrants will lie, in England, against parliamentary or statute corporations, for usurping powers not given, or misusing those conferred (Corp. 307, 308; Rex. v. Nicholson, 1 Str. 29); but in this country, the law as to private corporations is indisputably settled, that in such cases an information may be brought.

1 Wille. chap. VII. and observations at pp. 325, 326, 327, pl. 852; Colchester . Seaber, 3 Burr. 1866; Colchester v. Brooke, 7 Queen's B. 383; Rex . Passmore, 3 Term R. 241; Grant on Corp. 308; Bacon v. Robertson, 18 How. 480; Lowber v. Mayor, &c. of New York, 5 Abb. 325; Clarke . Rochester, 1b. 107; Welch v. Ste. Genevieve, 1 Dillon C. C. 130, 1871. That the failure to elect officers does not dissolve, while the capacity to elect remains, sec, also, Philips v. Wickam, 1 Paige Ch. 59; Commonwealth . Cullen, 1 Harris (Pa.) 133; President . Thompson, 20 Ill. 197; Rose v. Turnpike Co., 3 Watts (Pa.) 46; People v. Wren, 4 Scam. (Ill.) 275; Brown . Insurance Co., 3 La. An. 177; Welch v. Ste. Genevieve, supra; Green Township, 9 Watts & S. (Pa.) 28; Vincennes University v. Indiana, 14 How. 268; Muscatine Turnverein v. Funck, 12 Iowa, 469. In Lea . Hernandez, 10 Texas, 137, 1853, it appeared that a place was incorporated as a town prior to 1848, that in the year just named the legislature passed an act to incorporate the town, and that no election for officers nor any organization was had thereunder for three years and down to the commencement of the action, nor were there any officers de facto acting. The court held that the failure to elect officers operated to dissolve the corporation, there being no express provision of the charter to the contrary. But no authorities are cited and no reasons given, and the conclusion that an actual dissolution of the corporation resulted from a failure to elect, is believed to be unsound.

The existence of a municipal corporation is not considered to be inter rupted in consequence of a change in the council. Elmendorf v. Ewen, N. Y. Leg. Obs. 85; Elmendorf v. Mayor, &c. of New York, 25 Wend. 693. Further, see chapters relating to Corporate Officers and Corporate Meetings, Dost.

Angell & Ames on Corp. sec. 771, and cases there cited; People v. Fairbury, 51 Ill. 149, 1869.

from the legislature,' there can be no dissolution of a municipal corporation by a surrender of its franchise. The state creates such corporations for public ends, and they will and must continue until the legislature annuls or destroys them, or authorizes it to be done. If there could be such a thing as a surrender, it would, from necessity. have to be made to the legislature, and its acceptance would have to be manifested by appropriate legislative action.

§ 112. The doctrine of a forfeiture of the right to be a corporation has also, it is believed by the author, no just or proper application to our municipal corporations. If they neglect to use powers in which the public or individuals have an interest, and the exercise of such powers be not discretionary, the courts will interfere and compel them to do their duty.' On the other hand, acts done beyond the powers granted are void. If private rights are threatened or invaded, the courts will, as hereafter shown, restrain or redress the injury. With what surprise would we hear of a proceeding to forfeit the charter of the city of New York or Chicago because of the misconduct of its officers, or because the common council, as in the famous case against the city of London, were assuming to exercise unauthorized powers by ordaning an oppressive by-law. In short, unless otherwise specially provided by the legislature, the nature and constitution of our municipal corporations, as well as the purposes they are designed to subserve, are such that they can, in the author's judgment, only be dissolved by the consent of the legislature. They may become inert, or dormant, or their functions may be suspended, for want of officers or of inhabitants, but dissolved, when created by an act of the legislature, and once in existence, they cannot be, by reason of any default, or abuse of the powers conferred, either on the part of the officers or inhabitants of the in

1 Ante, sec. 17; sec. 22; sec. 30.

See Welch v. Ste. Genevieve, 1 Dillon C. C. 130, 1871, arguendo.

Ante, chap. V. sec. 62; post, chapter on Mandamus.

Ante, sec. 55, and notes.

See chapter on Remedies to Prevent, Correct, and Redress Illegal Corporate Acts, post, secs. 727-748.

corporated place. As they can exist only by legislative sanction, so they cannot be dissolved or cease to exist except by legislative consent, or pursuant to legislative provision.

Effect of Dissolution.

§ 113. At common law, a corporation, of whatever kind, which was wholly dissolved, was considered to be civilly dead; and the effect was, that their lands reverted to the grantor or his heirs, and the debts of the corporation, whether owing to or by it, were extinguished. Leases made by the corporation would cease because of the reversion of the lands to the original owners; and, for the same reason, lands given to, or held by, the corporation for charitable purposes would be lost.' These inconveniences and results are so disastrous that the English courts, as the more recent cases before cited will show, have doubted and limited, although they may not have overthrown the doctrine that municipal corporations may be totally dissolved. These consequences of a dissolution of a corporation attached to all corporations, eleemosy nary, municipal, and private; and since this doctrine has, in this country, been generally re jected as to private corporations organized for pecuniary profit, and rests upon no foundation in reason or justice, it may, perhaps, be safely affirmed that it would not, on full consideration, be applied to the dissolution of a municipal corporation, by an absolute and unconditional repeal of its charter, or (if that may be done) to the case where the charter of such a corporation is forfeited by judicial sentence. Therefore, the leases of a corporation would not be disturbed by its dissolution, nor would their lands held in fee revert, nor would those held in trust for charitable purposes be lost, since equity would supply trustees.'

' Co. Litt. 13; 1 Lev. 237; Knight v. Wells, 1 Lut. 519; Rex v. Sanders, 3 East, 119; Attorney General v. Gower, 9 Mod. 226; 1 Rol. Abr. 816; Colchester v. Seaber, 3 Burr. 1866; Willc. 330, pl. 858; 2 Kyd, 516; Rex v. Passmore, 3 Term R. 247; Grant Corp. 305; Colchester v. Brooke, 7 Queen's B. 383; Commonwealth v. Roxbury, 9 Gray, 510, note.

Ante sec. 37; sec. 47; chapters on Corporate Boundaries and Property, post. Bacon v. Robertson, 18 How. (U. S.) 480, 1855; Girard v. Philadelphia, 7 Wall. 1, 1868; Mumma v. Potomac Company, 8 Pet. 281,

§ 114. As respects the creditors of a municipal corporation, their rights are protected from the legislative invasion by the Constitution of the United States, and no repeal of a

1834; Curran v. Arkansas, 15 How. (U. S.) 312; 2 Kent, 307, note; Angell & Ames Corp. 779 a; Coulter v. Robertson, 24 Miss. 278; County Commissioners v. Cox, 6 Ind. 403; State v. Trustees, &c., 5 Ind. 77; Vincennes University v. Indiana, 14 How. 268; Owen v. Smith, 31 Barb. 641; Commonwealth o. Roxbury, 9 Gray, 510, note.

The general subject of the effect of a dissolution of a corporation is extensively discussed by Mr. Justice Campbell, in Bacon v. Robertson, supra. The case was a bill in chancery by the stockholders of a bank, whose charter had been judicially forfeited, for a distribution of the surplus after the payment of the debts, and the relief was granted. The Supreme Court of the United States seemed to be of opinion that, upon the general princi ples of equity jurisprudence, and without statutory aid, the surplus of the assets of a corporation for pecuniary profit, after the payment of debts and expenses, belonged to the shareholders; that the creditor of such a corporation, dissolved or declared forfeited by judgment upon quo warranto or judicial sentence, has, without a statute to that effect, a claim in equity upon the corporate property for the satisfaction of his debt; that lands conveyed to the corporation in fee and for a full price do not revert, and that the stockholder, as to the surplus after paying the debts, stands upon grounds as high and has claims as irresistible as the creditor before had. The usual consequences of a dissolution, as stated by the text writers, if correct, which was doubted, were deemed inapplicable to moneyed or trading corporations.

In the course of his admirable opinion, the learned justice named observed: "The common law of Great Britain was deficient in supplying the instrumentalities for a speedy and just settlement of the affairs of an insolvent corporation whose charter had been forfeited by judicial sentence. The opinion usually expressed as to the effect of such a sentence was unsatisfactory and questioned. There had been instances in Great Britain of the dissolution of public or ecclesiastical corporations by the exertion of public authority, or as a consequence of the death of their members, and parliament and the courts had affirmed, in these instances, that the endowments they had received from the prince or pious founders would revert in such a case. Stat. de terris Templariorum, 17 Edw. II.; Dean and Canons of Windsor, Godb. 211; Johnson v. Norway, Winch. 37; Owen, 73; 6 Vin. Abr. 280. What was to become of their personal estate, and of their debts and credits, had not been settled in any adjudicated case, and, as was said by Pollexfen in the argument of the quo warranto against the city of London, was, perhaps, "non definitur in jure." [See ante, Introductory Chapter, sec. 8.] Solicitor Finch, who argued for the crown in that cause, admitted: "I do not find any judgment in a quo warranto of a corporation being forfeited." Treby, on behalf of the city, said: "The dissolving a corpora tion by a judgment in law, as is here sought, I believe is a thing that never

charter of a municipal corporation can so dissolve it as to impair the obligation of the contract, or, it may probably be safely added, preclude the creditor from recovering his debt.'

came within the compass of any man's imagination till now; no, not so much as the putting of a case. For in all my search (and upon this occasion I have bestowed a great deal of time in searching) I cannot find that it even so much as entered into the conception of any man before; and I am the more confirmed in it because so learned a gentleman as Mr. Solicitor has not cited any one such case wherein it has been (I do not say adjudged, but) even so much as questioned or attempted; and, therefore, I may very boldly call this a case prime impressionis." The argument of Pollexfen was equally positive.

The power of courts to adjudge a forfeiture so as to dissolve a corpora tion was affirmed in that case, but the effect of that judgment was not illustrated by any execution, and the courts were relieved from their embarrassment by an act of parliament annulling it. Smith's Case, 4 Mod. 53; Skin. 310; 8 St. Trials, 1042, 1052, 1283. Nor have the discussions since the revolution extended our knowledge upon this intricate subject. The case of Rex v. Amery, 2 Term R. 515, has exerted much influence upon text writers. The questions were, whether a judgment of seizure quosque upon a default was final, and, if so, whether the king's grant of pardon and restitution would overreach and defeat a charter granting to a new body of men the same liberties, intermediate the seizure and the pardon. The king's bench, relying upon the Year-Book, discovered that it did not support the conclusion drawn from it, and Chief Baron Eyre says that "Lord Coke had adopted the doctrine too hastily." The discussions upon this case show how much the knowledge of the writ of quo warranto, as it had been used and applied under the Plantagenets and Tudors, had gone from the memories of courts and lawyers. 4 Term R. 122; Tan. on Quo War. 24. In Colchester v. Seaber, 3 Burr. 1866, where the suit was upon a bond, and the defence was, that certain facts had occurred to dissolve the corporation, and that the creditor's claim was extinguished on the bond, Lord Mansfield said, "Without an express authority, so strong as not to be gotten over, we ought not to determine so much against reason as that parliament should be obliged to interfere." The question occurs here, Could parliament interfere? And the answer would be, by their authorizing a suit to be brought, notwithstanding the dissolution. These are all cases of municipal corporations where the corporators had no rights in the property of the corporation in severalty."

1

Ante, chap. IV. passim; particularly, sec. 41; Cooley Const. Lim. 290, 292; Curran v. Arkansas, 15 How. (U. S.) 312; Bacon v. Robertson, supra ; 2 Kent, 307, note; County Commissioners v. Cox, 6 Ind. 403; State v. Trustees, 5 Ind. 77; Coulter v. Roberson, 24 Miss. 278; Gelpcke v. Dubuque, 1 Wall. 175, 1865; Von Hoffman v. Quincy, 4 Wall. 535; Welch v. Ste. Genevieve, 1 Dillon C. C. 130; Thompson v. Lee County, 3 Wall. 327;