all future calls on his subscription, except by forfeiture, was held binding on a creditor who was both a member and trustee of the corporation, and present at the passing of the resolution, and consenting to the same; the by-law being regarded, in this case, as a contract between the creditor and the other members of the corporation.' But where a creditor, who was also a member and a trustee at the time the resolution was passed, openly protested against it, though he afterwards accepted, in part payment of his debt, money raised under it, and was present at a subsequent meeting, when the application of the money thus raised was directed, and assented to the application, it was held, that this was no ratification by him of the by-law. In such cases, a constructive assent to the by-law, urged from the common principle that all the corporators are presumed to assent to what is done at a regular meeting, will not be admitted to deprive one of his right; for the presumption is, that corporations will pass none but legal votes; and to all such, and such only, the assent of those who are absent may be presumed. The unanimity of the vote of those present cannot affect the rights of those absent, where the vote is itself unauthorized. And, indeed, so far as a member's rights, duties, and obligations as a corporator, are concerned, he is bound by the acts of the majority; but the corporation has of course no right, by by-law or resolution, without his consent, to dispense with a contract, in which he is one party, and the corporation the other."

$ 4. The by-laws of a corporation must not be inconsistent with its charter; for this instrument creates it an artificial being, imparts to it its power, designates its object, and usually

1 Slee v. Bloom, 19 Johns. (N. Y.) R. 456.

2 Ibid.

* See Stetson v. Kempton et al. 13 Mass. R. 282, Chief Justice Parker's opinion.

♦ Ibid.

Revere v. Boston Copper Company, 15 Pick. (Mass.) R. 363; American Bank et al. v. Baker et al. 4 Met. (Mass.) R. 176.

2

1

prescribes its mode of operation. It is, in short, the fundamental law of the corporation; and in its terms and spirit, as a constitution to the petty legislature of the body, acting by and under it. Hence all by-laws in contravention of it are void. "The true test of all by-laws," says Mr. Justice Wilmot, "is the intention of the crown in granting the charter, and the apparent good of the corporation." In the same case, it is said by Mr. Justice Yates, that "corporations cannot make by-laws contrary to their constitution. If they do, they act without authority." With relation to the important power of electing officers by municipal corporations, this very obvious rule was, however, directly violated in the celebrated Case of Corporations,' decided in the time of Elizabeth. In this case, it appears that, "when divers attempts were made in divers corporations, contrary to the common usage, to make popular elections," the Lords of Elizabeth's council demanded of her chief and other justices, whether, when the charters of divers municipal corporations prescribed that the mayor, bailiffs, aldermen, provosts, &c., shall be chosen by the commonally or burgesses, &c., elections of these officers by a certain selected number of the principal of the commonalty or burgesses, called the common council, or the like, according to ancient usage, were good in law; forasmuch as, by the words of the charters, the election should be indefinitely by the commonalty or burgesses, which is as to say, by all the commonalty or all the burgesses, &c. The justices, "upon great deliberation and conference had among themselves," as we are told, resolved, that such ancient and usual elections were warranted both by law and the charters of the corporations.

'Rex v. Spencer, 3 Burr. R. 1838; and see Rex v. Cutbush, 4 Burr. R. 2204; Rex v. Gravesend, 4 D. & R. 117; 2 B. & C. 602.

Rex v. Spencer, 3 Burr. 1839; and see The King v. Ginever, 6 T. R. 735, 736; Hoblyn v. Regem, 2 Bro. P. C. 329. And a by-law cannot explain a doubtful charter. If there be any ambiguity on the face of the charter, it is the province of the court to expound it. 2 Selw. N. P. 1144.

* 4 Co. R. 77, 78.

The reason they gave was, that by their charters these corporations were empowered to make laws, ordinances, and constitutions for the better government and order of their cities and boroughs, by force of which, and "for avoiding of popular confusion," they might, by their common consent, ordain, that the officers should be chosen by a selected number of the principal of the commonalty, which by-law, "for the avoiding of popular disorder and confusion," they adjudged would be good. And even if the by-law could not be shown, they decided they would presume it, from ancient and continual usage, though it began within time of memory. Lord Coke closes his report of this decision with, "God forbid that they (the usages established by the decision) should be now innovated or altered; for many and great inconveniences will thereupon arise, all which the law has well prevented, as appears by this resolution." Though Lord Kenyon intimated, and in one case very sarcastically, his opinion against by-laws limiting the number of electors appointed by the charter, even when made by the whole corporation; yet the Case of the Corporations, settled as it was upon great deliberation, has, in England, been generally followed; and its principle even extended to the election of burgesses, as standing upon the same footing, in this respect, with the higher orders of the corporation. Such a by-law, in order to restrain the right of the commonalty, must be made by "common assent," or, in other words, by the commonalty themselves; and if made by a

4

The Case of Corporations, 4 Co. R. 778.
The King v. Ginever, 6 T. R. 735.

* Ibid.; The King v. Holland, 2 East, 74.

• Colchester Case, 3 Bulstr. 71; Rex v. Grosvenor, 7 Mod. 198; Rex v. Tomlyn, C. T. H. 316; Rex v. Castle, Andr. 124; Rex v. Tucker, 1 Barnard, 27; Rex v. Spencer, 3 Burr. R. 1837; Rex v. Cutbush, 4 Burr R. 2207; Rex v. Head, 4 Burr. R. 2515; Hoblyn v. Regem, 6 Bro. P. C. 519; Newling v. Francis, 3 T. R. 189; Rex v. Ashwell, 12 East, 22; Rex v. Atwood, 7 Nev. & M. 286.

* Rex v. Bird, 13 East, 384; Rex v. Westwood, 4 B. & C. 782; S. C. 7 D. & R. 269; 2 Dow & Clark, 21; 4 Bligh N. S. 213; 7 Bingh. 1. • Case of Corporations, 4 Co. R. 77, 78.

select body, though the power of making by-laws is reposed in them, it is void; for they do not represent the commonalty." And it seems, that though the number of electors specified in the charter may be restrained by a by-law, yet that a by-law cannot strike out an integral part of the electors, nor narrow nor extend the number of the eligible, or those out of whom the election is to be made. But though the by-law would be void, if it lessened the number of persons eligible to office, yet this feature of a by-law, presumed from ancient usage, will not be inferred from the circumstance of the election by the limited body having almost uniformly fallen upon members of the limited body. It is evident, however, that the Case of the Corporations, though established as law in England, is wholly indefensible on principle. The charters prescribed that the elections should be by the commonalty; and we do not perceive by what right the commonalty, though unanimous, could delegate to others, or to a selected number of their own body, a right which, by the instrument that enabled them to act at all, was to be exercised by themselves. Though they had power to make laws, ordinances, and constitutions, for the better government and order of their cities, boroughs, &c., as it seems to us, this power given by their charters was clearly limited by the clause which prescribed the mode of election. Indeed, admitting even that "the avoiding of the disorder and confusion of popular elections" was worth striving for, and that the by-law supposed was ever passed, the assumption by the commonalty amounts, as Lord Kenyon remarked of a similar assumption in a case before him, to this, that "the crown having, in the estimation of the corporation, made a

1 Colchester Case, 3 Bulstr. 71; Rex v. Spencer, 3 Burr. R. 1837; Rex v. Cutbush, 4 Burr. 2204.

* Rex v. Atwood, 1 Nev. & M. 286; Rex v. Bumstead, 2 B. & Adolph. 699; Rex v. Spencer, 3 Burr. 1838; The Carmarthen Case, there cited by Wilmot, J.; see, however, Rex v. Westwood, 4 B. & C. 801, 820; S. C. 7 D. & R. 304, 305.

› Rex v. Atwood, 1 Nev. & M. 286; S. C. 4 B. & Adolph. 699.

defective instrument, the latter wish to cure that defect."' The truth is, probably, that no such by-law was ever passed by the commonalty. The justices presumed the by-law from the usage; but it is well known that even the right of returning members to parliament was regarded, in early times, rather as an inconvenience than a privilege; and the fair presumption is, that it was the mere supineness of the commonalty in general, that permitted the administration of corporate affairs, and amongst other things the election of officers, to devolve upon the select classes. When we consider the arbitrary times in which this decision was made, the little attention then paid to popular rights, the well-known subserviency of the courts of justice to the ruling powers, and the fact, that the resolution was made upon a reference from the lords of the council to the justices, "because divers attempts were made in divers corporations, contrary to ancient usage, to make popular elections," we see reason enough for the decision, without recurring to the principles of the common law.*

We very much doubt whether the principle introduced into England by the "Case of Corporations," with regard to the old municipal corporations of that country, will be generally applied in the United States, at least to private corporations created by statute; and we have dwelt thus long upon it, because it seems to have been thought susceptible of such an application by the Supreme Court of Pennsylvania, in a case which, as it appears to us, might well have been decided, as it was, without reference to such a principle. This was the case of the Commonwealth v. Cain et al.,' where it appeared that

2

1 The King v. Ginever, 6 T. R. 735.

• Hallam's Constitutional History of England, vol. iii. pp. 54, 61 to 65. "It was perceived, however, by the assertors of the popular cause, under James I., that, by this narrowing of the electoral franchise, many boroughs were subject to the influence of the privy council, which, by restoring the householders to their legitimate rights, would strengthen the interests of the country." Hallam's Constitutional History of England, vol. iii. pp. 62, 63.

• Willcock on Mun. Corp. 122 to 125.

5 Serg. & Rawle (Penn.) R. 510.