of the special powers conferred, and in the peculiar constitution of the governing body, and the like, there was great variety. It will be useful to notice the outline features of one of these charters, since it constitutes the organic act of the corporation, and bestows upon it its legal character. Such a charter usually sets out with an incorporating clause declaring "that the inhabitants of the town of (naming it), or city of (naming it), are hereby constituted a body politic and corporate by the name of the 'town of- -,' or 'city of, and by that name shall have perpetual succession, may use a common seal, sue and be sued, purchase, hold, and sell prop erty," &c. The charter then defines the territorial boundaries of the town or city thus incorporated. After that follow provisions relating to the governing body of the corporation, usually styled the town or city council. This is generally composed of one body, though in some instances of two; the members being called aldermen, councilmen, or trustees. The corporate territory is divided into wards, and each ward elects one or more aldermen, the number being specified and definite. The charter fixes the qualifications of the voters, which are usually that the voter shall be a male citizen of the United States and of the State, be of age, and a resident, for a specified time, within the limits of the corporation. The mode of holding elections is prescribed; and the power is often given to the council to canvass returns, and to settle disputed elections to corporate offices.5 Provision is made for the election of a mayor, or other chief executive officer of the corporation, and his duties defined. The charter contains a minute and detailed enumeration of the powers of the city council, which are usually numerous; the most important of which are, the authority to create debts (sometimes restricted); to levy and collect taxes within the corporation, for corporate purposes;7 to make local improvements, and assessments to pay therefor; to appoint corporate officers; to enact ordinances to preserve the health of the inhabitants, to prevent and abate nuisances, to prevent fires, to establish and regulate markets, to regulate and license given occupations, to establish a police force; to punish offenders against ordinances; to open and grade and improve streets;9 to hold corporation courts,10 &c. 1 Post, chap. viii. 2 Post, chap. viii. Post, chap. x. 4 Constitutional provisions to secure equality of representation held applicable to municipal corporations and to disable the legislature to divide a city into wards, in some of which a voter should have several times as much power as a voter in another. People v. Canaday, 73 N. C. 198 (1875); s. c. 21 Am. Rep. 465. 5 Post, chap. ix. Post, chaps. v. and vi. Post, chap. xix. 8 Post, chap. ix. 9 Post, chap. xii. 10 Post, chap. xiii. When it is remembered that the charter of such a corporation is its constitution, and gives to it all the powers it possesses (unless other statutes are applicable to it), its careful study, in any given case, is indispensable to an understanding of the nature and extent of the powers it confers, the duties it enjoins, and liabilities it creates. The construction of its various provisions, and the determination of the relation which these bear to the general statutes of the State, how far the charter controls, or how far it is controlled by other legislation, are often among the most difficult problems which perplex the lawyer and the judge. The study of a question of corporation law begins with the charter; but it must oftentimes be pursued into the constitution, the general statutes and legislative policy of the State, and after this into the broad field of general jurisprudence. § 40. Corporators and Members. In municipal and public corporations, as cities, towns, parishes, school-districts, and the like, membership, so to speak, is, under the legislation and polity of this country, usually constituted by living within certain limits, whatever may be the desire of the individual thus residing or that of the municipal or other incorporated body. In private corporations, on the other hand, especially those organized for pecuniary profit, membership is constituted by subscribing to or receiving, with the assent of the corporation when that is necessary, transfers of its stock.1 It is the citizens or inhabitants of a city, not the common council or local legislature, who constitute the "corporation" of the city. The members of the council and other charter officers are the agents or ministers of the corporation.2 § 41 (20). General municipal Incorporating Acts in the United States. Within a period comparatively recent, the legislatures of a number of the States, following in this respect the example of the English Municipal Corporations Act of 5 and 6 Wm. IV. ch. lxxvi., heretofore mentioned, have passed general acts respecting municipal corporations. These acts abolish all special charters, or all with enumerated exceptions, and enact general provisions for the incorporation, regulation, and government of municipal corporations. The usual scheme is to grade corporations into classes, according to their size, as into Cities of the First class, Cities of the Second Class, 1 Overseers of Poor, &c. v. Sears, 22 Pick. 122, 130, per Shaw, C. J.; Oakes v. Hill, 10 Pick. 333, 346, per Morton, J.; ante, sec. 9, and notes. 2 Ante, sec. 21; Lowber v. Mayor, &c. of N. Y., 5 Abbott's Pr. R. 325; Clarke v. Rochester, 24 Barb. 446 (1857); Baumgartner v. Hasty, 100 Ind. 575. and Towns or Villages, and to bestow upon each class such powers as the legislature deems expedient; but the powers and mode of organization of corporations of each class are uniform.1 1 Ohio. By the Towns, Cities, and Villages' Act of May 3, 1852 (Swan's Stat. 954), all corporations existing for the purposes of municipal government are thereby organized into cities and incorporated villages. (Sec. 1.) In respect to the exercise of certain corporate powers, municipal corporations are divided into classes, thus: 1. Cities of the first class, which comprise all cities having a population exceeding twenty thousand inhabitants; 2. Cities of the second class, which comprise all cities not embraced in the first class; 3. Incorporated villages; and 4. Incorporated villages for special purposes. Ib. sec. 39 et seq. These are "declared to be bodies politic and corporate, under the name and style of the city of or the incorporated village of , as the case may be, - ca pable to sue and be sued; to contract and be contracted with; to acquire, hold, and possess property, real and personal; to have a common seal; and to exercise such other powers, and to have such other priv ileges, as are incident to municipal corporations of like character or degree, not inconsistent with this act or the general laws of the State." Ib. sec. 18. These powers and privileges are then specified with great minuteness, twenty sections of the act being devoted to this purpose. Incorporated villages are governed by one mayor, one recorder, and five trustees, elected annually; the mayor, recorder, and trustees constituting the village council, any five of whom make a quorum. Ib. sec. 43. The corporate authority of cities is vested in the mayor, one board of trustees (two from each ward), who compose the city council, together with such officers as are mentioned in the act, or as may be created under its authority. Ib. sec. 52 et seq. "The governing all cities and villages under one general law was a new experiment, supposed to be required by the present Constitution. It was to be expected that, in the working of the experiment, omissions, if not mistakes, would be discovered, to be corrected by addi tional legislation. It will be a work of care and time to perfect an orderly and harmonious system." Per Gholson, J., in Thomas v. Ashland, 12 Ohio St. 124, 130 (1861). Infra, sec. 46. California. Constitution, Art. XI., on Cities, Counties, and Towns, contains provisions as to their incorporation, organization, and government. The entire subject of the creation and government of cities is provided for in Part IV. title iii. of the Political Code. It does not apply to cities existing at the time of its adoption. Ex parte Simpson, 47 Cal. 127; People v. Clunie, 70 Cal. 504. If the course pur sued in establishing a municipality is substantially such as is pointed out in the act, courts will not disturb it, the propriety of establishing a municipality, and of including particular territory within its boundaries, being a political question for the legislature to determine. People v. City of Riverside, 70 Cal. 461. Illinois. The General Assembly has the power to delegate legislative authority incident to municipal government to cities; but this can only be done by general law, under the Constitution of 1870. When, however, it is done by such law, the constitutional mandate is fully complied with, and the ordinances to be adopted by different municipalities, under the power so conferred, may be as variant in their terms as the varying municipal necessities or sense of public policy in those who exercise the legislative authority may require. Covington v. East St. Louis, 78 Ill. 548 (1875). Iowa. The Ohio act is, in substance, adopted in Iowa. Revision 1860, chap. li. But it does not apply to cities having special charters, unless adopted by them. Burke v. Jeffries, 20 Iowa, 145. Kansas. The act of Kansas (Comp. Laws 1885, chaps. 18, 19, 20) provides for three classes of cities, and is in other respects similar to that of Ohio. It has been decided in that State that a supplemental act by which it was intended to extend corporate powers, but which was so These acts are generally held not to violate constitutional provisions against local or special legislation.1 General incorporation special in its provisions that it could by no possibility apply to more than three certain cities, was void, as being in violation of the State Constitution forbidding the legislature from conferring corporate powers by special act. Topeka v. Gillett, 32 Kan. 431. In Tennessee (Acts 1849, chap. xvii.) provision is made by general act for the incorporation of towns, cities, and villages. The constitution of Tennessee declares that "the legislature shall have power to grant charters of incorporation as they may deem expedient for the public good." Art. XI. sec. 7. In the State v. Armstrong, 3 Sneed (Tenn.), 634, it was held that the act of 1856, by which full power to create corporations, and determine the extent of their powers, was given to the Circuit Courts, was unconstitutional, on the ground that the legislature could not delegate its authority to the courts. But in the Mayor, &c. v. Shelton, 1 Head, 24 (1858), it was held that the act of 1849which was a general statute for the incorporation of towns and cities, and by which a petition was to be presented by the inhabitants of a place proposing to organize under the act to the County Court, which had power simply to record the petition and designate the boundaries of the corporation was not in conflict with the Constitution, as the statute, and not the court, determined the extent and nature of the powers of the corporation. In Ex parte Chadwell, 3 Bax. 98, s. c. 1 Tenn. Ch. 95, and Ex parte Burns, 1 Tenn. Ch. 83, the act of 1871, under the Constitution of 1870, was declared void in so far as it undertook to confer upon the Court of Chancery the power to grant corporate franchises. See also Willett v. Bellville, 11 Lea (Tenn.), 1. For abstract of legis - 1 State v. Graham, 16 Neb. 74; Pritchett v. Stanislaus Co., 73 Cal. 310. An act known as the "McClure charter," held not to be a 66 'general law" for the incorporation of cities under the Constitution of California. Desmond v. Dunn, 55 Cal. 242; Ex parte Wells, 21 Fla. 280. lation in this State establishing Taring Districts, see post, ch. vii. Missouri.-A general act for the incorporation of towns was passed in Missouri in 1845, and it was held not unconstitutional by reason of certain duties which it imposes on the County Court with reference to organization of towns under the act, as these duties are not legislative but judicial, and the law itself, and not the court, declares the powers of which the corporation shall be possessed. Kayser v. Trustees, &c. 16 Mo. 88 (1852). Construction of statute. Woods v. Henry, 55 Mo. 560; State v. McReynolds, 61 Mo. 203 (1876). The case of Kayser v. Trustees, &c. supra, is thought by Campbell, J., to conflict with the general course of decision, since such duties are in their nature administrative or political rather than judicial. People v. Bennett, 29 Mich. 451; s. c. 18 Am. Rep. 107. See Damodhar Gordhani v. Deoran Kanji, L. R. 1 App. Div. 332. Indiana. The general law of 1857, for the incorporation of cities, is not unconstitutional for want of uniformity in the mode of their organization. Lafayette v. Jenners, 10 Ind. 70, 80 (1857). See also Welker v. Potter, 18 Ohio St. 85. In the Revised Statutes of 1881, secs. 30313406 are collected the statutory law of the State relating to cities and towns, their organization, powers, methods of taxation, opening of streets, &c. In an election held under its provisions to determine whether a town shall become a city, a majority of the votes cast is sufficient to decide; it is not essential that there be a majority of the legal voters. State v. Tipton, 109 Ind. 73. The Supreme Court of Indiana, in the recent cases (April, 1889) of the State v. A constitutional provision authorizing cities having over 100,000 inhabitants to frame charters for their own government held to be self-acting and not to require legislation to give it effect. People v. Hoge, 55 Cal. 612. acts, rather than special charters, would seem clearly to be the best method of creating and organizing municipal corporations. 1. Such Denny, 21 Northeast. Rep. 252, and Evansville v. State, 21 Northeast. Rep. 267, has asserted and maintained the constitutional right of local self-government in that State in opinions of marked ability and learning. Post, sec. 58. was Pennsylvania. A general act passed in 1851, designed to form a system for the regulation of boroughs incorporated thereafter. Commonwealth v. Montrose, 52 Pa. St. 391. Course of legislation and decision in Pennsylvania as to the incorporation of boroughs discussed in People v. Bennett, supra. A general act for the incorporation and regulation of municipal corporations, dividing them into three classes, and having other features similar to the Ohio act, was adopted in this State May 3, 1874. It has since been amended. Reading v. Savage, 120 Pa. St. 198 (1888). North Carolina. By general act, every incorporated town may elect, each year, not less than three nor more than seven commissioners, who are a body corporate and the governing body of the town. These commissioners are elected by the vote of the citizens of the place. At the same time they are also to elect a mayor, who presides at the meetings of the commissioners, but who has no vote except in case of a tie. The mayor is both a peace officer and a judicial officer, with the same jurisdiction as a justice of the peace, with power also to "hear and determine all cases that may arise upon the ordinances of the commissioners," &c. The commissioners may levy certain specified taxes, and make ordinances in relation to their officers, records, markets, nuisances, the repair of streets and bridges in the town, &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. Michigan. The general act of 1873 for the incorporation of villages within any two square miles of territory was held unconstitutional because the rights of the people concerned were not respected, and the legislature had attempted to delegate legislative powers to private citizens in stead of to corporate authorities or local boards of officers. People v. Bennett, 29 Mich. 451 (1874); s. c. 18 Am. Rep. 107. 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. Stats. 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 Rev. Stats. 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 taxesthe 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 |