CHAPTER X.

OF THE BY-LAWS OF CORPORATIONS.

1. WHEN a corporation is duly erected, the law tacitly annexes to it the power of making by-laws or private statutes, for its government and support.' This power is included in the very act of incorporation; for, as is quaintly observed by Blackstone, "as natural reason is given to the natural body for governing of it, so by-laws or statutes are a sort of political reason to govern the body politic." Though the power to make by-laws is unquestionably an incident to the very existence of a corporation, it is rarely left to implication; but is usually conferred by the express terms of the charter. And where the charter enables a company to make by-laws in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified, all others being excluded by implication.*

This principle is undoubtedly correct; but the case in reference to which it was advanced was that of the Hudson's Bay Company, who were empowered by charter to make by-laws for the better government of the company, and for the management and direction of their business to Hudson's Bay; "which," it was said, "implied a negative that they should not make any other by-laws; much less could they make bylaws in relation to projects of insurance, which by acts of

1 Norris v. Staps, Hob. 211; By-laws, 3 Salk. 76; City of London v. Vanacre, 1 Ld. Raymd. 496; The case of Sutton's Hospital, 10 Co. R. 31, a.

Norris v. Staps, Hob. 211.

3 1 Black. Comm. 476.

Per Ld. Macclesfield, Chan., Child v. Hudson's Bay Co., 2 P. Wils. 207.

See 2 Kyd on Corp. 102.

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parliament were declared to be illegal." It is apprehended, however, that if this company had not been thus impliedly forbidden to make by-laws on any subject, which did not relate to their trade to Hudson's Bay, unless the power of legislating on other matters had been expressly conferred upon them, their legislation would be confined to the object of their incorporation. The incidental power of a corporation to make by-laws results from the necessity of such a power, to enable the body politic to answer the purposes for which it was created, and can be applied to nothing else; and though the power is conferred by the express terms of the charter, yet the reasonable construction of this particular grant is, to consider it as a mean to the company for the accomplishment of the purposes of the principal grant of incorporation, and of course to be limited in its exercise to those purposes.

Unless, by the charter, or some general statute to which the charter is made subject, this power is delegated to particular officers or members of the corporation, like every other incidental power, it resides in the members of the corporation at large, to be exercised by them in the same manner in which the charter may direct them to exercise other powers or transact their general business; and if the charter contain no such direction, to be exercised according to the rules of the common law. The power of making by-laws is, however, frequently reposed in a select body, as the directors; in which case a majority of that body, at least, is necessary to constitute a quorum for the purpose of passing a by-law. And where the general power of making by-laws is vested by charter in a select body, a by-law, made by that select body in conjunction with persons of another select description, is void. Thus, where the inhabitants of a town were incorporated by the name of the bailiffs and burgesses, and there were twelve capital burgesses, and twelve common burgesses, besides com

'Child v. Hudson's Bay Co. 2 P. Wms. 209.

2 Rex v. Spencer, 3 Burr. R. 1837; 2 Kyd on Corp. 102.

3 Union Bank of Maryland v. Ridgeley, 1 Harris & Gill (Md.) R. 324. • Ex parte Wilcocks, 7 Cow. (N. Y.) R. 402.

mon freemen, but the power of making by-laws was vested in the bailiffs and capital burgesses only; and the bailiffs and all the burgesses, including capital and common burgesses, made a by-law; this was one reason given for holding the law void. So where by charter the power of making by-laws was expressly given to the mayor and aldermen of a city; and they, with the assent of the commonalty made a by-law, which altered the constitution of the corporation; Lord Mansfield said, the body at large had no power to make by-laws, because that power was given by the charter to a select body.* This holds true, unless certain rights, as those of electing officers and members, remain in the body at large; in which case, as incident to the right of election, they have the power of making by-laws for regulating the manner in which that right shall be exercised; and especially if the power of the select body is derived from a new charter, in derogation of the ancient right of the body at large, to make by-laws in all cases. Where the power of making by-laws is confided to a select body, as mayor and aldermen, if a by-law purporting to be made by mayor, aldermen, and burgesses, be found by the verdict "to be in due manner made," it will not be assumed that the burgesses joined in making this by-law, which would avoid it; but that the mayor and aldermen alone, acting in pursuance of their authority, made it in the name of the mayor, aldermen, and burgesses."

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If the charter prescribe the mode in which the by-laws shall be made and adopted, in order to their validity, that mode must be strictly pursued. Thus, where a gas light company was empowered to make by-laws under seal for its

1 Parry v. Berry, Comyn R. 269.

Rex v. Head, 4 Burr. 2515, 2521; and see Hoblyn v. Regem, 6 Bro. P. C. 519; Rex v. Westwood, 4 B. & C. 799, 818; Bedford v. Fox, 1 Lutw. 564.

3 Ibid.

Rex v. Westwood, 4 B. & C. 800, 813; S. C. 7 D. & R. 273; 2 Dow & Clark 21; 4 Bligh, N. S. 213; 7 Bingh. 1.

Greene v. Durham, 1 Burr. R. 131.

government, and for regulating the proceedings of the directors, officers, and servants, and at a meeting of the company a resolution was passed, not under seal, allowing each director for his attendance on courts, committees, &c., one guinea for each time of attendance, it was decided not to be a by-law within the statute.' But where the charter is silent upon this point, since it is now well settled that a corporation aggregate may act without seal or writing, and is open to the same implications as an individual, it may adopt by-laws as well by its own acts and conduct, and the acts and conduct of its officers, as by an express vote, or an adoption manifested by writing. In the case of the Union Bank of Maryland v. Ridgeley," where it appeared that, by charter, the president and directors of the bank were authorized to make all such by-laws and regulations for the government of the corporation, its officers, and members, as they or a majority of them should from time to time think fit; upon a certain writing being given in evidence, headed "By-Laws," and which purported to have been the by-laws of the bank, while its business was transacted under articles of association, and before the act of incorporating it was passed, it was objected that there was no evidence that the writing produced had been adopted as the bylaws of the corporation, there being no entry or memorandum of such adoption among the minutes of its proceedings. The Court of Appeals in Maryland, however, decided, that the authority to make by-laws being specially delegated to the president and directors, without the mode of exercising it being prescribed by the charter, it was no more necessary that their adoption should be in writing, than the acts or contracts of any other duly authorized agents; and it being proved by the cashier, that the by-laws in question were always reputed to be the by-laws of the corporation, and with the exception of two articles, were so observed by him; and by a director, that they were delivered to him as such

1 Dunston v. Imperial Gas Company, 3 B. & Adolph. 125.

1 Harris & Gill (Md.) R. 324; and see Taylor v. Griswold, 2 Green (N. J.) R. 223; and Fairfield Turnpike Co. v. Thorp, 13 Conn. R. 173.

upon his election, and that decisions by the board of directors were made agreeably to them in any question upon their conduct; this was held a sufficient adoption of the by-laws by the president and directors, and sufficient proof of the same, there being no record or minute of the fact. In the case of the King v. Ashwell,' in a plea to an information in the nature of a quo warranto, it was stated, among other things, that, on the fifth of May, 1577, the mayor and burgesses of Nottingham duly made a certain reasonable by-law not now extant in writing, (and, after reciting the by-law,) to which by-law the mayor and burgesses for the time being, from the time of making thereof hitherto, have consented and conformed themselves, and the same is now in force and unrepealed. The replication took, among other issues, one "that the mayor and burgesses did not make such a by-law;" yet a verdict was found for the defendant, although the only evidence of the making and terms of the by-law must have been in the long-continued and invariable usage of the corpo

ration.

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It need hardly be mentioned, that the same body in a corporation, which has a power to make, has the power to repeal, by-laws; it being of the very nature of legislative power, that by timely changes in the rule it prescribes, it should be enabled to meet the exigencies of the occasion. As a court will direct a jury to find a by-law, its terms, and adoption, from the usage and conduct of the corporation and its officers, so, from non-observance of one, will it presume a subsequent by-law to repeal and alter it. Thus, on an information before Lord Chancellor Hardwicke, against the masters and govern

1 12 East, 22; and see Rex v. Westwood, 4 B. & C. 786; S. C. 7, D. & R. 273.

King v. Ashwell, 12 East, 22; Rex v. Westwood, 4 B. & C. 806. In the absence of any precedent, the court refused a rule nisi for a mandamus calling on the mayor of a town to propose a resolution to the burgesses in guild assembled, for repealing certain by-laws, though it was alleged that by-laws and ordinances might by charter be made, and had formerly been made, at such guilds. Garrett v. Newcastle, 3 B. & Adolph. 252.