we have elsewhere shown, the legislature creates, alters, and, in the absence of constitutional restriction, can repeal charters and incorporating statutes and abolish municipal and public corporations at its will, and it invests them with such powers, mandatory and discretionary, and requires of them such duties, as it deems most expedient for the general good, and for the benefit of the particular locality. No precise form of words is necessary to create a corporation, and a corporation may be created by implication.2

§ 83 (50). Charters judicially noticed. Courts will judicially notice the charter or incorporating act of a municipal corporation without being specially pleaded, not only when it is declared to be a public statute, but when it is public or general in its nature or purposes, though there be no express provision to that effect. But the acts, votes, and ordinances of the corporation are not public matters, and must, unless otherwise provided by statute, be pleaded and proved.1

1 Weeks v. Gilmanton, 60 N. H. 500. (1857); Clarke v. Bank, 5 Eng. (10 Ark.) Ante, secs. 8, 9, 22.

§ 84 (51). Proof of corporate Existence; User; Legislative Recognition. The primary evidence of a special charter or act of incorporation in this country is the original or an authenticated copy, or, under statute regulation, a printed copy published by authority. But if primary evidence cannot be had, parol or secondary evidence of its existence is admissible. Thus, where a public corporation had existed for a long space of time (in the instance before the court, for forty years), the court allowed evidence of its incorporation by reputation, the original act not being found, and it being probable that it had been destroyed by fire." So evidence that a town has for many years exercised corporate privileges, no charter after search being found, is competent to go to the jury to establish that it was duly incorporated. And where there is no direct or record evidence that a place has been incorporated, and it is sought to show the fact of incorporation from circumstantial evidence, the question is ordinarily for the jury, and not the court; that is, the jury, under the circumstances determine whether there is or is not sufficient ground to presume a charter or act of incorporation, or the due establishment and existence of a corporate district under some general act. So corporate existence may be

1 Stockbridge v. West Stockbridge, 12 Mass. 400 (1815); Braintree v. Battles, 6 Vt. 395 (1834); Blackstone v. White, 41 Pa. St. 330.

2 Dillingham v. Snow, 5 Mass. 547 (1809); s. p. Bassett v. Porter, 4 Cush. 487 (1849). In view of the defective manner in which the records of quasi corporations such as school and road districts, and the like are kept, the courts, in the absence of any statute requiring record evidence, will permit the existence and organization of the corporation to be proved by reputation and acts, where these facts do not appear of record. Barnes v. Barnes, 6 Vt. 388 (1834); Londonderry v. Andover, 28 Vt. 416, (1856); Sherwin v. Bugbee, 16 Vt. 439; Ryder v. Railroad Co., 13 Ill. 523; Highland Turnpike v. McKean, 11 Johns. 154; Owings v. Speed, 5 Wheat. 420. See chapter on Corporate Records and Documents, post.

Irregularities in the proceedings to or ganize a corporation are not favored when set up long afterwards to defeat the corporate existence. Jameson v. People, 16 Ill. 257 (1855); Dunning v. Railroad Co., 2 Ind. 437 (1850); Fitch v. Pinckard, 4 Scam. 5 Ill. 76.

Where a corporation is created, and declared to exist as such, by the legisla ture without condition, proof of organization or user is not necessary to enable it to maintain an action. Cahill v. Insurance Company, 2 Doug. (Mich.) 124; Fire Department v. Kip, 10 Wend. 266 (1833). And see Proprietors, &c. v. Horton, 6 Hill (N. Y.), 501; People v. President, 9 Wend. 351; Wood v. Bank, 9 Cowen, 194, 205. When construed to be immediately created, the omission to do certain acts prescribed to organize the institution, was held immaterial as respects persons contracting with the corporation. Brouwer v. Appleby, 1 Sandf. 158 (1847); S. P. People v. President, 9 Wend. 351. See also ante, sec. 44.

8 New Boston v. Dumbarton, 15 N. H. 201 (1844); Mayor of Kingston v. Horner, Cowp. 102, per Lord Mansfield; Worley v. Harris, 82 Ind. 493. Where the fact of incorporation arises as a collateral question, it is only necessary to show that a city is de facto a corporation. Louisville N. A. & Chic. Ry. Co. v. Shires, 108 Ill. 617.

4 Bassett v. Porter, 4 Cush. 487 (1849); New Boston v. Dumbarton, 12 N. H. 409, 412 (1841); s. c. 15 N. H. 201; Robie v.

inferred and judicially noticed, although the incorporating act or charter cannot be found, if the fact of incorporation is clearly recognized by subsequent legislation not in contravention of any constitutional provision respecting the mode of creating corporations.1

§ 85 (52). Repeals and Amendments, and their Effect. The powers conferred upon municipal corporations may at any time be altered or repealed by the legislature, either by a general law operating upon the whole State, or, in absence of constitutional restriction, by a special act.2 A charter may be amended, the name of the

A legislative amendment to charter abolishing assistant aldermen, and declaring board of aldermen to be common council, is a valid exercise of legislative authority; a public corporation's charter being always subject to legislative amendment or alteration. Demarest v. New York, 74 N. Y. 161. An act repealing a upon the sheriff of

2 Meriwether v. Garrett, 102 U. S. 472; charter and imposing

place and of the governing body may be changed, and its boundaries altered, while in law the corporation remains the same. The insertion in an amended charter of the same provisions that were contained in the old is not, unless such upon the whole act appears to have been the intention of the legislature, a repeal of the latter. The law on this subject is thus stated: "Where a statute does not, in express terms, annul a right or power given to a corporation by a former act, but only confers the same rights and powers under a new name, and with additional powers, such subsequent act does not annul the rights and powers given under the former act and under its former name," there being no express repeal. The change of a city charter does not affect existing ordinances in harmony with new provisions.3

§ 86 (53). Repeating Clause; Substitutionary Charter; Repeals by Implication - A repeating clause in a revised and amendatory the county the duty of enforcing its ordinances as the town marshal might have done, held valid. Rose v. Hardee, 98 N. C. 44. Where a town was incorporated under a general act and afterwards accepted and organized under a special charter, it was held that the repeal of the special charter did not revive its incorporation under the general act, and that it was no longer a municipal corporation. Burk v. State, 5 Lea (Tenn.), 349.

1 Wood v. Board of Election, 58 Cal. 561; post, secs. 171, 182 et seq.; State, ex rel. v. White, 20 Neb. 37, holding that a mere change of a city from one grade to another, under the general law of Nebraska, does not change the corporation itself, and that, in consequence, a police judge elected before the change was made was entitled to hold his office for the full term for which he was elected. To same effect, State v. Hedlund, 16 Neb. 566. See post, sec. 172.

2 State, &c. v. Mobile, 24 Ala. 701 (1854); Girard v. Philadelphia, 7 Wall. 1 (1868); Broughton v. Pensacola, 93 U. S. 266 (1876). Approving Milner's Admx. v. Pensacola, 2 Woods, 632; Laird v. De Soto, 22 Fed. Rep. 421; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396. Approving text. Commonwealth v. Worcester, 3 Pick. (Mass.) 474 (1826); Grant on Corp. 24, and cases cited; Ib. 305. See chapter on Dissolution, post. "There is no doctrine better settled," says Mr.

Justice Strong, "than that a change in the form of government of a community does not ipso facto abrogate pre-existing law, either written or unwritten. This is true in regard to what is strictly municipal law, even when the change is by conquest. The act of assembly converting a borough into a city did not, therefore, of itself, and in the absence of express provisions to that effect, either repeal the former acts of assembly relative to the borough, or annul existing ordinances. It was solely a change in the organic law for the future, and left unaffected the existing ordinances, precisely as a change of a State Constitution leaves undisturbed all prior acts of assembly.' Trustees of Academy v. Erie, 31 Pa. St. 515, 517 (1858). As to transfer to new or reorganized corporation of the property and rights of the old or former corporation, see Girard v. Philadelphia, 7 Wall. 1 (1868); Savannah v. Steamboat Company, R. M. Charlt. (Ga.) 342; Fowle v. Alexandria, 3 Pet. 398, 408; Municipality v. Commissioners, 1 Rob. (La.) 279. Transition from town to city organization does not dissolve the corporation or extinguish its indebtedness. Olney v. Harvey, 50 Ill. 453 (1869); Maysville v. Shultz, 3 Dana, 10 (1865); Frank v. San Fran. cisco, 21 Cal. 668; post, chap. vii. secs. 171, 172.

8 Chamberlain v. Evansville, 77 Ind. 542; Trustees of Academy v. Erie, supra.

charter whereby a former provision is included in the revised act, does not, as to such provision, interrupt the continuity of the original act.1 Where the original charter of a city prescribed the qualifications required to make a person eligible to the office of mayor, and contained a proviso that a certain fact disqualified, and an amendatory act, in dealing in the same subject, copied all of the original act except the proviso, which was omitted, the court held that the proviso in the original act was not repealed, placing stress, however, upon the express declaration that all parts of the new act inconsistent with or contrary to the old one were repealed. There is, however, much room to contend that the subject-matter having been revised in the amendatory act in the manner it was, the legislative intention was to repeal, and not to continue in force, the proviso.2 A general law forbidding the opening of streets through cemeteries is not repealed by a subsequent act extending the limits of a town, and appointing commissioners with authority "to survey, lay out, &c., streets and alleys, as they shall deem necessary within said limits," since both acts can stand, and repeals by implication are not favored. So a general statute, expressly prohibiting a municipal corporation from debarring citizens from selling at wholesale in the city market, is not repealed by implication by a subsequent act, by which the city authorities are invested with power to pass such ordinances as appear to them necessary for the security, welfare, &c., of the city. So, also, where a State statute required auctioneers to take out a State license, and a subsequent charter to a city gave it power "to provide for licensing, taxing, and regulating auctions," &c., it was held that a license granted by the city corporation to an auctioneer did not relieve him of the necessity of obtaining, also, a license from the State authorities, the court being of opinion that both statutes could and ought to stand, as they were not inconsistent.5

1 St. Louis v. Alexander, 23 Mo. 483 Stats. 126; Bank v. Bridge, 1 Vroom (30 (1856).

2 State v. Merry, 3 Mo. 278 (1833). Consult Goodenow v. Buttrick, 7 Mass. 140, 143; King v. Grant, 1 Barn. & Adol. 104. Where a later statute undertakes to revise the entire subject-matter of a prior statute, it will generally be taken as intended to be a substitute for the former statute unless a contrary purpose appears. It is entirely a question of legislative intention. Murdock v. Memphis, 20 Wall. 590, 617, and cases cited. Sedgwick on

N. J. L.), 112; Industrial School v. Whitehead, 2 Beasley, N. J. 290; State v. Kelly, 5 Vroom (34 N. J. L.), 75.

3 Egypt Street, 2 Grant (Pa.) Cas. 455 (1854). See, further, infra, sec. 87, as to repeals by implication.

Haywood v. Savannah, 12 Ga. 404 (1853).

5 Simpson v. Savage, 1 Mo. 359 (1823); infra, sec. 87. Text approved. Siebenhauer, In re, 14 Nev. 365.