Millard v. St. Francis Xavier Academy. its charter. It is precisely what the incorporating act has made it, and can exercise only such powers as are specifically granted, or are necessary to its existence or incidental to the exercise of the powers expressly given. Hence, any specific power which may be claimed for a corporation must find its warrant in the charter, and if it cannot do that it has no existence. It is clear that the power to execute a promissory note is not among the powers specifically conferred upon the defendant by its charter, and we have only to determine whether it is implied as incedental to the exercise of the powers expressly given. Had it the power to contract debts, and if so, is the power to evidence such debts by the execution of a promissory note to be implied? The defendant was by its charter expressly empowered to establish and maintain an educational institution, and to acquire and hold property for that purpose. By the third section of the charter, the corporators and their successors were declared to be competent, in law and equity, "to take to themselves, in their said corporate name, real, personal or mixed estate, by gift, grant, bargain and sale, conveyance, will, devise or bequest of any person or persons whomsoever; and the same estate, whether real or personal, to grant, bargain, sell, convey, demise, let, place out at interest or otherwise dispose of the same for the use of said institution, in such manner as to them shall seem most beneficial to said institution." The power to acquire property, conferred by the first section, is, if anything, broader still. Authority is there given to the corporation, in its corporate name, “to acquire, hold and convey property, real · personal or mixed, in all lawful ways." Among the lawful ways in which property may be acquired, is, by purchase, either for cash or on credit. It cannot be doubted, then, that power is here given to acquire all such real and personal property as might be necessary for the establishment and maintenance of the institution, by purchase, and on credit. Is the power to give a promissory note for the indebtedness thereby incurred to be implied? The charter does not prohibit the execution of negotiable Millard v. St. Francis Xavier Academy. paper, and where there is no such prohibition, a corporation may execute such paper for a debt contracted in the course of its proper business. In the case of Curtis v. Leavitt, 15 N. Y. 66, it is said: "That the right of corporation in general to give a note, bond or other engagement to pay a debt, is so nearly identical or so inseparably connected with the right to contract the debt, that no doubt upon the question ought to be adinitted. When a corporation can lawfully purchase property or procure money on loan in the course of its business, the seller or the lender may exact, and the purchaser or borrower must have the power to give, any known assurance which does not fall within the prohibition, express or inplied, of some statute. The particular restriction must be sought for in the charter of the corporation, or in some other statute binding upon it; but if not found in that examination, we may safely affirm that it has no existence." So in Moss v. Averill, 10 N. Y. 457, the court say: "No question is better settled upon authority than that a corporation, not prohibited by law from doing so, and without any express power in its its charter for that purpose, may make a negotiable promissory note payable either at a future day, or upon demand, when such note is given for any of the legitimate purposes for which the company was incorporated." The authorities holding this doctrine are very numerous, but reference may be made to the following: Barker v. Mechanic Ins. Co. 3 Wend. 94; Moss v. Oakley, 2 Hill, 265; Kelly v. Mayor of Brooklyn, 4 Id. 263; Barry v. Merchants' Exchange Co. 1 Sandf. Ch. 280; Mott v. Hicks, 1 Cow. 513; Hamilton v. New Castle and Danville R. R. Co. 9 Ind. 359; Carne v. Brigham, 39 Me. 35; Patridge v. Badger, 25 Barb, 146; Commercial Bank v. Newport Manufac turing Co. 1 B. Mon. 13; Smith v. Eureka Flour Mills, 6 Cal. 1. The affidavit of the defendant's president shows, it is true, that the note in question was given, not for the purchase money of property, but to secure a loan of money to pay a previously existing indebtedness. But we think that from the power to contract a debt, the power to borrow money for its payment is clearly implied. Thus in Barry v. Merchants' Exchange Co., supra, it is said: "Upon this principle, and to the extent Millard v. St. Francis Xavier Academy. stated, a corporation, in order to attain its legitimate objects, may deal precisely as an individual may who seeks to accomplish the some ends. If chartered for the purpose of building a bridge, it may contract a debt for the labor, the materials, or the land upon which the bridge is abutted. If more advantageous, it may borrow money to purchase such land or materials, or to pay for such labor. And as evidence of the indebtedness and as security for its repayment, it may execute to the creditor a promissory note, a bond or a mortgage, whether the debt be for the money borrowed, or for the work, materials or land." In Moss v. Haspeth Academy, 7 Heisk. 283, it is held that a corporation, unless prohibited has authority to borrow money to accomplish the purpose for which it was organized, wherever such power may be fairly implied as a usual and appropriate means to accomplish the objects of its charter. See, also, Beers v. Phoenix Glass Co. 14 Barb. 358; Partridge v. Badger, 25 Id. 46. But even if the borrowing of the money in question was in excess of the corporate powers of the defendant, we think the defense of ultra vires should not prevail. The defendant ought not to retain the money borrowed, and escape its repayment on the plea that it had no power to borrow it. See Degroff v. American Linen Thread Company, 24 Barb. 275; Bissell v. M. S. & N. I. R. R. Co. 22 N. Y. 258. We think the court below erred in dismissing the suit, and the judgment will be reversed and the cause remanded, with instructions to reinstate the suit, so that the parties may have an opportunity of litigating therein the matters in controversy between them in relation to said note and the indebtedness thereby secured. Judgment reversed. Falch v. The People. 1. LEONARD FALCH ET AL. V. THE PEOPLE ex rel. ASSESSMENTS FOR IMPROVEMENTS-AFFIDAVIT SHOWING NOTICE TO OWNER.-In making asssesments for improvements, where the statute requires notice to be sent to the owners of lands by the commissioners, the affidavit required by the statute showing that such notice was sent, need not set out the notice. 2. PUBLICATION NOTICE.-Publication of the notice required by statute in a daily paper from Thursday up to and including the following Tuesday, is a sufficient compliance with the statute. 3. APPELLATE JURISDICTION.-It appearing that the steps necessary to give the county court jurisdiction, were fully complied with, the remaining objection raised by appellant-that the statute is unconstitutional—is not within the jurisdiction of this court to hear, and the appeal is therefore dismissed. APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed February 8, 1881. Mr. EDWARD ROBY, for appellants; that the statute under which the assessment was made is unconstitutional, cited Seely v. Pittsburg, 82 Pa. 364; People v. Cooper, 83 Ill. 585; Constitution, Art. IV, § 1; Updike v. Wright 81 Ill. 49; Hessler v. Drainage Comrs. 53 Ill. 105; White v. The People, 94 Ill. 604; Lake v. Decatur, 91 Ill. 596. Article IX, § 9 of the Constitution, is a limitation upon the powers of the General Assembly in the matter of assessments: Nance v. Howard, Breese, 242; Updike v. Wright, 81 Ill. 49; Board of Directors v. Houston, 71 Ill. 318; Hinze v. The People, 92 Ill. 419; Sleight v. The People, 74 Ill. 49; Gage v. Graham, 57 Ill. 146; Harward v. St. Clair Drainage Comrs. 51 Iil. 131; Hessler v. Drainage Comrs. 53 Ill. 105. As to special taxation for local improvements: Ottawa v. Walker, 21 Ill. 610; Com'rs v. Baumgarten, 41 Ill. 254; Shaw v. Dennis, 5 Gilm. 405; People v. Canal Trustees, 14 Ill 403; Canal Trustees v. Chicago, 12 Ill. 403; County of 8 351 151s 338 Falch v. The People. Sangamon v. Brown, 13 Ill. 207; State v. Maynard, 14 Ill. 419; Beesman v. Peoria, 16 Ill. 484; Higgins v. Chicago, 18 Ill. 276; Cole v. Peoria, 18 Ill. 301; Wright v. Chicago, 20 Ill. 252; Ottawa v. Macy, 20 Ill. 413; Chicago v. Colby, 20 Ill. 614; Pease v. Chicago, 21 Ill. 500; Brown v. Joliet, 22 Ill. 123; McAuly v. Chicago, 22 Ill. 563; McBride v. Chicago, 22 Ill. 574; Peck v. Chicago, 22 Ill. 578; Hamilton v. Chicago, 22 Ill. 581; Bristol v. Chicago, 22 Ill. 587; Ogden v. Chicago, 22 Ill. 592; Chicago v. Burtice, 24 Ill. 489; Chicago v. Adams, 24 Ill. 492; Chicago v. Walker, 24 Ill. 493; Chicago v. Rosenfeld, 24 Ill. 495; Burnham v. Chicago, 24 Ill. 496; Ottawa v. C. & R. I. R. R. Co. 25 Ill. 43; Peoria v. Kidder, 26 Ill. 352; Lill v. Chicago, 29 Ill. 31; Ottawa v. Spencer, 40 Ill. 211; Chicago v. Baer, 41 Ill. 306; Bedard v. Hall, 44 Ill. 91; Holbrook v. Dickenson, 46 Ill. 288; Wright v. Chicago, 46 Ill. 44; Greeley v. The People, 60 Ill. 19; Castle v. The People, €2 Ill. 287; Chicago v. The People, 56 Ill. 327. As to the power of a municipal corporatin to make special assessments: Creote v. Chicago, 56 Ill. 422; Southeim v Chicago, 56 Ill. 429; Wheeler v. Chicago, 57 Ill. 415; Galesburg v. Hawkinson, 75 Ill. 152. The legislature may lay the tax, but over its apportionment it has no control. If the tax is laid in proportion to values, a judicial determination of those values becomes essential: Rich v. Chicago, 59 Ill. 286; Prasser v. Secor, 5 Barb. 607; Weaver v. Devendorf, 3 Denio, 117. As to the distinction between power of taxation and power of assessment: Weeks v. Milwaukee, 10 Wis. 242; Hill v. Higdon, 5 Ohio St. 247; The People v. Mayor, etc. 4 Comst. 440; Taylor v. Palmer, 31 Cal. 250; Emery v. San Francisco Gas Co. 28 Cal. 345. Generally, as to the unconstitutionality of the law, and that the power to make assessments for local improvements, is not a right of eminent domain, but is regarded in many States as an exercise of the police power, and in some as the power of taxation: Sutton's Heirs v. Louisville, 5 Dana, 31; Lexington v. McQuillan's Heirs, 9 Dana, 513; Louisville v. Hyatt, 2 |