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*

Corporations by Prescription and Implication.

The origin of many of the corporate privileges asserted and enjoyed in England is veiled in obscurity, and it is more than probable that in some instances they had no better foundation than an uninterrupted user for a considerable period. In other cases the regal or baronial grant became lost in the lapse of time, and the evidence that it had ever existed might rest exclusively upon reputation, or upon the inference to be drawn from the exercise of corporate functions. In all these cases it seems to be the law that the corporate existence may be maintained on the ground of prescription; that is to say, the exercise of corporate rights for a time whereof the memory of man runneth not to the contrary is sufficient evidence that such rights were once granted by competent authority, and are therefore now exercised by right and not by usurpation. And this presumption concludes the crown, notwithstanding the maxim that the crown shall lose no rights by lapse of time. If the right asserted is one of which a grant might be predicated, a jury is bound to presume a grant from that prescription. In this particular the claim to a corporate franchise stands on the same ground as any claim of private right which requires a grant for its support, and is to be sustained under the same circumstances of continuous assertion and enjoyment.3 And even the grant of a charter by the crown will not preclude the claim to corporate rights by prescription; for a new charter does not extinguish old privileges.1

A corporation may also be established upon presumptive evidence that a charter has been granted within the time of memory. Such evidence is addressed to a jury, and though not conclusive upon

Md. 85; Gould v. Sterling, 23 N. Y. 464; Clark v. Des Moines, 19 Iowa, 209; Veeder v. Lima, 19 Wis. 280; Dillon, Mun. Corp. § 381.

1 Introduction to Willcock on Municipal Corporations; The King v. Mayor, &c., of Stratford upon Avon, 14 East, 360; Robie v. Sedgwick, 35 Barb. 326. See Londonderry v. Andover, 28 Vt. 416.

2

Mayor of Hull v. Horner, Cowp. 108, per Lord Mansfield. Compare People v. Maynard, 15 Mich. 470; State v. Bunker, 59 Me. 366.

3 2 Kent, 277; Angell and Ames on Corp. § 70; 1 Kyd on Corp. 14. Hadduck's Case, T. Raym. 439; The King v. Mayor, &c., of Stratford upon Avon, 14 East, 360; Bow v. Allenstown, 34 N. H. 366. See Jameson v. People, 16 Ill. 259.

them, yet if it reasonably satisfies their minds, it will justify them in a verdict finding the corporate existence. "There is a great difference," says Lord Mansfield, "between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by length of time which operates as a bar; as where the statute of limitations is pleaded to a debt; though the jury is satisfied that the debt is still due and unpaid, it is still a bar. So in the case of presumption. If it be time out of mind, a jury is bound to preclude the right from that prescription, if there could be a legal commencement of the right. But any written evidence, showing that there was a time when the prescription did not exist, is an answer to a claim founded on prescription. But length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to circumstances." 1 The same ruling has been had in several cases in the courts of this country, where corporate powers had been exercised, but no charter could be produced. In one of these cases common reputation that a charter had once existed was allowed to be given to the jury; the court remarking upon the notorious fact that two great fires in the capital of the colony had destroyed many of the public records.2 In other cases there was evidence of various acts which could only lawfully and properly be done by a corporation, covering a period of thirty, forty, or fifty years, and done with the knowledge of the State and without question. The inference of corporate powers, however, is not one of law; but is to be drawn as a fact by the jury.1

Wherever a corporation is found to exist by prescription, the same rule as to construction of powers, we apprehend, would apply as in other cases. *The presumption as to [* 198] the powers granted would be limited by the proof of the

1

Mayor of Hull v. Horner, Cowp. 108, 109; citing, , among other cases, Bedle v. Beard, 12 Co. 5.

2

351.

3

Dillingham v. Snow, 5 Mass. 552. And see Bow v. Allenstown, 34 N. H.

Stockbridge v. West Stockbridge, 12 Mass. 400; New Boston v. Dunbarton, 13 N. H. 409, and 15 N. H. 201; Bow v. Allenstown, 34 N. H. 351; Trott v. Warren, 2 Fairf. 227.

New Boston v. Dunbarton, 15 N. H. 201; Bow v. Allenstown, 34 N. H. 351'; Mayor of Hull v. Horner, 14 East, 102.

usage, and nothing could be taken by intendment which the usage did not warrant.

Corporations are also said sometimes to exist by implication. When that power in the State which can create corporations grants to individuals such property, rights, or franchises, or imposes upon them such burdens, as can only be properly held, enjoyed, continued, or borne, according to the terms of the grant, by a corporate entity, the intention to create such corporate entity is to be presumed, and corporate capacity is held to be conferred so far as is necessary to effectuate the purpose of the grant or burden. On this subject it will be sufficient for our purpose to refer to authorities named in the note.1 In these cases the rule of strict construction of corporate powers applies with unusual force.

Municipal By-Laws.

The power of municipal corporations to make by-laws is limited in various ways.

1. It is controlled by the Constitution of the United States and of the State. The restrictions imposed by those instruments, and which directly limit the legislative power of the State, rest equally upon all the instruments of government created by the State. If a State cannot pass an ex post facto law, or law impairing the obligation of contracts, neither can any agency do so which acts under the State with delegated authority.2 By-laws, therefore, which in their operation would be ex post facto, or violate contracts, are

1 Dyer, 400, cited by Lord Kenyon, in Russell v. Men of Devon, 2 T. R. 672, and in 2 Kent, 276; Viner's Abr. tit. “ Corporation"; Conservators of River Tone v. Ash, 10 B. & C. 349; s. c. ib. 383, citing case of Sutton Hospital, 10 Co. 28; per Kent, Chancellor, in Denton v. Jackson, 2 Johns. Ch. 325; Coburn v. Ellenwood, 4 N. H. 101; Atkinson v. Bemis, 11 N. H. 46; North Hempstead v. Hempstead, 2 Wend. 109; Thomas v. Dakin, 22 Wend. 9; per Shaw, Ch. J., in Stebbins v. Jennings, 10 Pick. 188; Mahony v. Bank of the State, 4 Ark. 620.

2 Angell and Ames on Corporations, § 332; Stuyvesant v. Mayor, &c., of New York, 7 Cow. 588; Brooklyn Central Railroad Co. v. Brooklyn City Railroad Co., 32 Barb. 358; Illinois Conference Female College v. Cooper, 25 Ill. 148. The last was a case where a by-law of an educational corporation was held void, as violating the obligation of a contract previously entered into by the corporation in a certificate of scholarship which it had issued. See also Davenport, &c., Co. v. Davenport, 13 Iowa, 229; Saving Society v. Philadelphia, 31 Penn. St. 175; Haywood v. Savannah, 12 Geo. 404.

not within the power of municipal corporations; and whatever the people by the State constitution have prohibited the State government from doing, it cannot do indirectly through the local govern

ments.

2. Municipal by-laws must also be in harmony with the general laws of the State, and with the provisions of the municipal charter. Whenever they come in conflict with either, the by-law must give way. The charter, however, may expressly or by necessary implication exclude the general laws of the State on any particular subject, and allow the corporation to pass local laws at discretion, which may differ from the rule in force elsewhere.2 But in these cases the control of the State is not excluded if the legislature afterward see fit to exercise it; nor will conferring a power upon a * corporation to pass by-laws and impose penalties [* 199] for the regulation of any specified subject necessarily supersede the State law on the same subject, but the State law and the by-law may both stand together if not inconsistent. Indeed, the same act may constitute an offence against both the State and the municipal corporation, and may be punished under both without violation of any constitutional principle.1

1 Wood v. Brooklyn, 14 Barb. 428; Mayor, &c., of New York v. Nichols, 4 Hill, 209; Petersburg v. Metzker, 21 Ill. 205; Southport v. Ogden, 23 Conn. 128; Andrews v. Insurance Co., 37 Me. 256; Canton v. Nist, 9 Ohio, N. s. 439; Carr v. St. Louis, 9 Mo. 191; Commonwealth v. Erie and Northeast Railroad Co., 27 Penn. St. 339; Burlington v. Kellar, 18 Iowa, 59; Conwell v. O'Brien, 11 Ind. 419; March v. Commonwealth, 12 B. Monr. 25. See Baldwin v. Green, 10 Mo. 410; Cowen v. West Troy, 43 Barb. 48; State v. Georgia Medical Society, 38 Geo. 629; Pesterfield v. Vickers, 3 Cold. 205; Mays v. Cincinnati, 1 Ohio, N. s. 268; Wirth v. Wilmington, 68 N. C. 24.

* State v. Clarke, 1 Dutch. 54. Peculiar and exceptional regulations may even be made applicable to particular portions of a city only, and yet not be invalid. Goddard, Petitioner, 16 Pick. 504; Commonwealth v. Patch, 97 Mass. 222, per Hoar, J.; St. Louis v. Weber, 44 Mo. 547.

3 City of St. Louis v. Bentz, 11 Mo. 61; City of St. Louis v. Cafferata, 24 Mo. 97; Rogers v. Jones, 1 Wend. 261; Levy v. State, 6 Ind. 281; Mayor, &c., of Mobile v. Allaire, 14 Ala. 400.

Such is the clear weight of authority, though the decisions are not uniform. In Rogers v. Jones, 1 Wend. 261, it is said: “ But it is said that the by-law of a town or corporation is void, if the legislature have regulated the subject by law. If the legislature have passed a law regulating as to certain things in a city, I apprehend the corporation are not thereby restricted from making further regulations. Cases of this kind have occurred and never been questioned on that ground; it is only to notice a case or two out of many. The legislature have

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*3. Municipal by-laws must also be reasonable. Whenever they appear not to be so, the court must, as a matter

imposed a penalty of one dollar for servile labor on Sunday; the corporation of New York have passed a by-law imposing the penalty of five dollars for the same offence. As to storing gunpowder in New York, the legislature and corporation have each imposed the same penalty. Suits to recover the penalty have been sustained under the corporation law. It is believed that the ground has never been taken that there was a conflict with the State law. One of these cases is reported in 12 Johns. 122. The question was open for discussion, but not noticed." In Mayor, &c., of Mobile v. Allaire, 14 Ala. 400, the validity of a municipal bylaw imposing a fine of fifty dollars, for an assault and battery committed within the city, was brought in question. Collier, Ch. J., says, p. 403: "The object of the power conferred by the charter, and the purpose of the ordinance itself was not to punish for an offence against the criminal justice of the country, but to provide a mere police regulation, for the enforcement of good order and quiet within the limits of the corporation. So far as an offence has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment, and we are not informed that they have attempted to arrogate it. It is altogether immaterial whether the State tribunal has interfered and exercised its powers in bringing the defendant before it to answer for the assault and battery; for whether he has there been punished or acquitted is alike unimportant. The offence against the corporation and the State we have seen are distinguishable and wholly disconnected, and the prosecution at the suit of each proceeds upon a different hypothesis; the one contemplates the observance of the peace and good order of the city; the other has a more enlarged object in view, the maintenance of the peace and dignity of the State." See also Mayor, &c., of Mobile v. Rouse, 8 Ala. 515; Intendant, &c., of Greensboro v. Mullins, 13 Ala. 341; Mayor, &c., of New York v. Hyatt, 3 E. D. Smith, 156; People v. Stevens, 13 Wend. 341; Blatchley v. Moser, 15 Wend. 215; Levy v. State, 6 Ind. 281; Ambrose v. State, ib. 351; Lawrenceburg v. Wuest, 16 Ind. 337; Amboy v. Sleeper, 31 Ill. 499; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Cafferata, 24 Mo. 94; Shafer v. Mumma, 17 Md. 331. On the other hand it was held in State v. Cowan, 29 Mo. 330, that where a municipal corporation was authorized to take cognizance of and punish an act as an offence against its ordinances which was also an offence against the general laws of the State, and this power was exercised and the party punished, he could not afterwards be proceeded against under the State law. "The constitution," say the court, "forbids that a person shall be twice punished for the same offence. To hold that a party can be prosecuted for an act under the State laws, after he has been punished for the same act by the municipal corporation within whose limits the act was done, would be to overthrow the power of the General Assembly to create corporations to aid in the management of the affairs of the State. For a power in the State to punish, after a punishment had been inflicted by the corporate authorities, could only find a support in the assumption that all the proceedings on the part of the corporation were null and void. The circumstance that the municipal authorities have not exclusive jurisdiction over the acts which constitute offences within their