with the essential character of a municipal corporation, and with the genius of our American institutions, conceding to those most interested the right and power of self-government.72 In like manner, it is competent for the Legislature to make the continuance of the municipal organization dependent upon the continued public approval of the citizens, and to authorize them by public election to terminate and dissolve the corporation at will. Such a clause might be included either in a special charter or in a general statute of the state. Inherent Power in Legislature to Make Conditions.

73

All legislative power not exclusively withheld by Constitution is inherent in the general assembly, as the representative of the people; and, while this power may not be delegated, it is competent for the legislature to prescribe the condition upon which its special enactment may become law, just as under general statutes of incorporation it prescribes the mode by which municipalities may be brought into life by the local action of the inhabitants.74

JUDICIAL NOTICE OF SPECIAL CHARTER.

57. The courts take judicial notice of the charter of a municipal corporation created by special act.

This seems to be the general consensus of judicial opinion in the United States, though the contrary doctrine has pre

75

v. Rome, 18 N. Y. 38; City of St. Louis v. Alexander, 23 Mo. 483; People v. Burr, 13 Cal. 343; Weaver v. Cherry, 8 Ohio St. 564.

72 Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620; City of Paterson v. Society, 24 N. J. Law, 385; Commonwealth v. Painter, 10 Pa. 214.

73 Corning v. Greene, 23 Barb. (N. Y.) 33.

74 State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Commonwealth v. Dean, 110 Mass. 357; Sandford v. Common Pleas, 36 N. J. Law, 72, 13 Am. Rep. 422; New York Fire Department v. Kip, 10 Wend. (N. Y.) 267; Hobart v. Supervisors, 17 Cal. 23.

75 City of Wetumpka v. Wharf Co., 63 Ala. 611; City of Savannah

vailed in a few of them, wherein it has been ruled that the
charter of a municipality is a private act, and, like other pri-
vate acts, must be pleaded and proven.
This latter ruling
seems to be consistent with elementary definitions and dis-
tinctions. Blackstone says: 76 "A general or public act is an
universal rule that regards the whole community, and of this
all courts of law are bound to take notice judicially and ex
officio, without the statute being particularly pleaded. Special
or private acts are rather exceptions than rules, being those
which only operate upon particular persons or private con-
cerns." To which Bouvier adds, "Acts relating to any par-
ticular place," and says that "private acts are those of which
the judges will not take notice without pleading," " and, of
course, proof also. Special charters of municipal corporations
have been customarily printed in the United States in that
section of the pamphlet acts of assemblies classified as private
acts, and not among the public laws; and, in speaking of cor-
porations, courts and authors unanimously recognize the dis-
tinction of special and general statutes, thereby recognizing a
classification not stated by the law lexicographers, nor by
Blackstone, who uses "public" and "general" as convertible
terms. 78
But the great weight of judicial opinion, and the
general practice thereunder, in the United States, warrants the
statement of the text that municipal charters will receive ju-
dicial notice, though they are special and not general statutes.79

v. Dickey, 33 Mo. App. 522; City of Solomon v. Hughes, 24 Kan. 211; State v. Tosney, 26 Minn. 262, 3 N. W. 345; Dwyer v. Brenham, 65 Tex. 526; Potwin v. Johnson, 108 Ill. 70; BOW v. ALLENSTOWN, 34 N. H. 351, 69 Am. Dec. 489; Vreeland v. Bergen, 34 N. J. Law,

438.

76 Comm. vol. 1, 86.

7 Law Dict. tit. "Act," "Legislation."

78 Comm. vol. 1, supra.

79 New Jersey v. Yard, 95 U. S. 104, 24 L. Ed. 352; Toledo, P. & W. Ry. Co. v. Chenoa, 43 Ill. 209; Vreeland v. Bergen, 34 N. J. Law, 439; Virginia City v. Mining Co., 2 Nev. 86; Swain v. Comstock, 18 Wis. 463; Oroville & V. R. Co. v. Plumas, 37 Cal. 354; State v. Mayor, 11 Humph. (Tenn.) 217.

This fact entitles them to be classified as public statutes, even though they do relate to particular places only; and this is consistent with the purposes and functions of all public corporations, including municipalities. They may affect only particular localities, and yet be public in the accepted sense of that term, for "public" need not mean "universal." 80 This rule applies, therefore, not only when a clause in the special statute declares it to be a public statute, but without any provision to that effect, because of the public nature and purposes of a municipal corporation. It follows, of course, that, the charter being a public statute, all amendments and supplements thereto are likewise public.81

CERTIFICATE OF ORGANIZATION UNDER GENERAL LAW TO BE PLEADED.

58. But this rule does not apply to the charter of a city incorporated under a general statute, nor to the ordinances and by-laws of any municipality.

Such statutes, ordinances, and by-laws are not only special, but private, acts, and must be specially pleaded and proven, unless otherwise provided by statute.$2

MUNICIPALITIES UNDER GENERAL LEGISLATION.

59. The charter of a municipal corporation may be obtained and formulated under a general law declaring the powers, privileges, and immunities of the corporation, and authorizing its organization upon popular initia

80 "Public" is here used as the antithesis of "private."

81 Newark City Bank v. Assessors, 30 N. J. Law, 22; Society for Propagation of Gospel v. Pawlet, 4 Pet. (U. S.) 480, 7 L. Ed. 927; People v. Farnham, 35 Ill. 562; Arapahoe Village v. Albee, 24 Neb. 242, 38 N. W. 738, 8 Am. St. Rep. 202.

82 Harker v. Mayor, 17 Wend. (N. Y.) 199; Cox v. St. Louis, 11 Mo. 431; Trustees of Elizabethtown v. Lefler, 23 Ill. 90; Goodrich v. Brown, 30 Iowa, 291; City of New Orleans v. Boudro, 14 La. Ann. 303.

tive by officers of the state exercising ministerial
functions conferred for that purpose in the general
statute.

83

The legislation of the various states upon this subject shows as great diversity of legislative thought and action as upon other subjects of general legislation, and quite as much ingenuity under particular inspiration as that for the benefit of private incorporations from the speculative influence of society. Ordinarily the laws make a classification of municipal corporations according to population, and, while the usual powers of a municipality are conferred upon all alike, certain specified powers are provided for the various classes of cities and towns, suggested by and appropriate to the classification.84 Under these statutes a required number of citizens of the proposed municipality initiate the movement for incorporation by some appropriate document, resulting in an enumeration of the voters within the proposed precincts, followed by a special election held by the election officer of the county to determine whether a majority of the people favor incorporation. If the vote is in the affirmative by the required majority, then an election is held for the officers necessary to organize the corporation and set it in motion. In some states this choice is made at the first election; its efficacy being determined, of course, upon the vote in favor of incorporation. Instances are said to be rare in which the incorporation is defeated, if at the same election there may be candidates for the offices to be created thereby. The charter of the corporation thus created is sometimes authorized to be formulated by a court or board or officer designated in the act, whose function is ministerial only, and the resulting duty is an intelligent conformation of the general law to the particular corporation by specifying its name and municipal boundaries, and transcribing the grant of

85

83 1 Beach, Pub. Corp. §§ 16, 39; 1 Thomp. Priv. Corp. § 132. 84 1 Dill. Mun. Corp. § 41, note.

85 State v. Tipton, 109 Ind. 73, 9 N. E. 704.

In

powers contained in the general incorporation statute. states wherein a delegation of legislative power for municipal purposes is authorized by the Constitution, little difficulty arises in determining the validity of the charter and of the powers therein granted, since upon this sublegislature is conferred, ex necessitate rei, the legislative discretion.88 But where the legislative grant of power to organize under general law is made without constitutional authority to delegate legislative power, the acts of these officers and boards, and even of the courts, are necessarily ministerial only; 87 and, if they in any such case are empowered to exercise legislative powers in the organization, such legislative acts are unconstitutional and void; and, if the portion of the charter of this character is large, or is inseparable from the rest of the work, the entire charter will be void, and the corporation a nullity.89

88

MUNICIPAL POWERS: EXPRESS

- IMPLIED

INHERENT.

60. The municipality possesses no other powers than— (a) Those expressly enumerated in the charter;

(b) Such as are necessary for their appropriate use and execution;

(c) Such as are inherent in every municipal corporation.

The inherent powers of a private corporation are well recognized and established by many judicial decisions, from an examination of which it will appear that the courts have not been illiberal in their implications. But the general rule with regard to implied powers is one of strict rather than liberal construction, with reference to all corporations, both public

86 Cooley, Const. Lim. (6th Ed.) 78.

87 Granby Mining & Smelting Co. v. Richards, 95 Mo. 106, 8 S. W. 246; 1 Mor. Priv. Corp. § 15; 1 Thomp. Priv. Corp. § 110; City of Morristown v. Shelton, 1 Head (Tenn.) 24.

88 Ex parte Chadwell, 3 Baxt. (Tenn.) 98; Greeneville & P. R. Narrow Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 332.

89 Cooley, Const. Lim. (6th Ed.) 210-214.