conditions. This is a doctrine, however, which is asserted for the protection of such holders, and has ordinarily no place in controversies which arise before the issue of the bonds, between the taxpayers or municipality on the one hand, and the company on the other. In such cases the sound doctrine is that substantial compliance with all material conditions is essential.2

1 Post, § 904, chapter on Municipal power, and a subsequent one is ultra Bonds. vires: quære. A subscription cannot be made to a division of a road. McWhorter v. People, 65 Ill. 290. Power to issue upon compliance with conditions cannot be delegated. Jackson County v. Brush, 77 Ill. 59; People v. Waynesville, supra; People v. Harper (vote need not fix time for bonds to run), 67 Ill. 62. Cannot make a contract with railroad company for subscription before election. People v. Cass County, 77 Ill. 438. Submitting two propositions at same election. Marshall v. Silliman, 61 Ill. 218. See also Garrigus v. Park County, 39 Ind. 66; State v. Roggen, 22 Neb. 118. Conditions, effect of non-observance. Alley v. Adam County, 76 Ill. 101. Voting on unauthorized proposition. Cairo St. L. R., &c. Co. v. Sparta, 77 Ill. 505. Election must be held according to the law governing it. People v. Supervisor of Santa Anna, 67 Ill. 57. See also the following cases: Wright v. Bishop, 88 Ill. 302; Edwards v. People, 88 Ill. 340; Williams v. Roberts, 88 Ill. 11, 13; People v. Clayton, 88 Ill. 45; People v. Oldtown, 88 Ill. 202; Yarish v. Cedar Rap. I. F. & N. R. Co., 72 Iowa, 556. What is a majority vote. McDowell v. Mass. & S. Const. Co., 96 N. Car. 514; State v. Bechell, 22 Neb. 158; ante, § 69, note and cases; Index, Election, Majority, Municipal Bonds.

Jackson Co. v. Brush, 77 Ill. 59. The Supreme Court of Connecticut, under peculiar circumstances, held the town voting aid to a railroad company estopped to show, as against the railroad company (equitable rights of materialmen and contractors having intervened), that the vote at the town meeting had not been taken by ballot as required by the act of the legislature, but by a division of the house, without ballot. New Haven, &c. Railroad Co. v. Chatham, 42 Conn. 465. This case pronounced exceptional, Bloomfield v. Charter Oak Bank, 121 U. S. 121, citing the foregoing. See also Douglas v. Chatham, 41 Conn. 211. In submitting the question to vote whether a township will take stock in a railroad company, the township has the right to impose such conditions in regard thereto as it deems proper; and such conditions when imposed are binding, and the company will have no right to the subscription, or to compel the issue of the bonds, until the conditions are fully performed on its part, if the authorities have a discretion. People v. Holden, 91 Ill. 446. If the county authorities have a discretion to subscribe on a vote without conditions, the annexing of conditions will not deprive them of its exercise. People v. County Board of Cass County, 77 Ill. 438.

Except in controversies with bona fide bondholders for value, the State courts have generally and properly held that the power of a municipality to issue railroad aid bonds is dependent upon a strict or substantial compliance with the statute authorizing the issue of such bonds; and that when the power is conditional on a prior vote of the electors the statutory notice must be given. People v. Jackson County. 92 Ill. 444; Harding v. R. R. I. & St. L. R. R. Co., 65 Ill. 90; People v. Waynesville, 88 Ill. 469, in which it is held that one submission exhausts the

The reader is referred to chapter on Municipal Bonds, post, where the subject of such bonds is considered at large, with special reference to the decisions of the Supreme Court of the United States, which, generally speaking, are, as is well known, more favorable on certain points to the bona fide holders of such bonds than those of the State courts. A vote for an issue of bonds in excess of the amount allowed by the statute validates bonds issued thereunder up to the lawful limit. Rathbone v. Kiowa County, 73 Fed. Rep. 395. A city authorized to issue bonds in aid of a resident corporation

586

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only is not estopped from showing preme Court of the United States. An that a railroad corporation to which incorporated town in Arkansas has no it has issued bonds is a foreign corpora- power to contract for the construction tion by the fact that the bonds recite of a levee, or to bind itself to pay on their face that they were issued to therefor, and therefore is not to be a company incorporated under the gen- held to have ratified such a contract by eral laws of the State. Johnston City accepting the benefit of work done v. Charleston, &c. R. Co., 100 Tenn. under it. Newport v. Batesville & B. 138, but, as respects bona fide holders, Railway Co., 58 Ark. 270; Index, quare under the decisions of the Su- Levee, Levee District.

§ 330 (165). How dissolved in England. - In England a municipal corporation may be dissolved,

1. By an act of parliament, this power being a necessary consequence of the omnipotence of that body in all matters of political institution.' The king may, by his prerogative, create, but cannot dissolve or destroy, a corporation; may grant privileges, but when vested, cannot take them away."

It has there often been declared that a municipal corporation may also be dissolved,

2. By the loss of an integral part, or the loss of all or of the majority of the members of any integral part, without which it cannot transact its business, unless the parts that remain have the right to act or to restore the corporate succession.3

1 Co. Litt. 176, note; 2 Kyd, 447; Rex v. Amery, 2 Term R. 515; Glover, 408; Angell & Ames, chap. xxii. § 767; 2 Kent Com. 305; Tippecanoe County Com'rs v. Cox, 6 Ind. 403; State v. Vincennes University, 5 Ind. 77; ante, § 50, as to distinction between Royal and Parliamentary Corporations.

2 Ante, §§ 50, 53; Rex v. Amery, supra; Regents of University v. Williams, 9 Gill & Johns. (Md.) 365, 409. In this case Buchanan, J., in substance, observes: The crown may create, but cannot, at pleasure, dissolve a corporation, or, without its consent, alter or amend its charter. Parliament may do this; but, restrained by public opinion,

it has not undertaken to dissolve any private corporation since the time of Henry VIII., so that the power to do so rests wholly in theory. In 1783 a bill was proposed to remodel the East India Company. Lord Thurlow opposed it as subversive of the law and Constitution, and, in strong, nervous language, declared it to be "an atrocious violation of private property, which cut every Englishman to the bone."

Willc. on Corp. 325, chap. vii. This chapter contains an interesting discussion of the question of dissolution, and it would seem that the author, notwithstanding the occasional judgments and the many and broad dicta

3. By a surrender of the franchise of being a corporation to the crown, whose acceptance is necessary; and to be effectual the surrender must be enrolled in chancery. The power to surrender has been much questioned; the argument in favor of it being, that since by royal grant and acceptance a corporation may be created, so by surrender and acceptance it may be annulled. It is admitted, however, that a corporation created or confirmed by parliament or statute cannot dissolve itself by a surrender of its charter or franchise.1

4. By forfeiture of its charter, through negligence or abuse of its franchise, judicially ascertained by proceedings in quo warranto or scire facias. This mode of dissolution proceeds upon the doctrine, well settled as to private corporations, both in England and in this country, and perhaps settled in that country, also, as respects the old municipal corporations when created by royal charter, that there is a tacit or implied condition annexed to the grant of every act or charter of incorporation that the grantees shall not neglect to use and shall not misapply the powers granted, and that if they do, the condition is broken upon which the corporation was created, and the corporation thereupon ceases to exist. And in the cases in the time of Charles II. it was held that the corporation might forfeit its franchise by reason of the neglect or misconduct of its officers.2

in the books, doubts whether there can be an actual and total dissolution of a municipal corporation, either by the loss of an integral part, or by surrender, or by forfeiture. But see 2 Kyd, chap. v.; Glover, chap. xx.; Angell & Ames, $769; and particularly Rex v. Morris and Rex v. Stewart, 3 East, 213; 4 East, 17. Integral parts defined. Ante, § 53. In Rex v. Pasmore, 3 Term R. 241, where the subject was much considered, Lord Kenyon observed: "When an integral part of a corporation is gone, without whose existence the functions of the corporation cannot be exercised, and the corporation has no manner of supplying the integral part, the corporation is dissolved as to certain purposes. But the king may renovate either with the old or new corporators."

The leading authorities respecting the effect of the loss of an integral part are, 1 Rol. Abr. 514; Regina v. Bewdley, 1 P. Wms. 207; Banbury's Case, 10 Mod. 346; Rex v. Tregony, 8 Mod. 111, 129; Colchester v. Seaber, 3 Burr. 1866; s. c. 1 Wm. Bl. 591, which, however, is said not to be a case of the loss

of an integral part, but of magistrates. Grant Corp. 305, note; Rex v. Pasmore, 3 Term R. 241. The foregoing cases are succinctly stated by Mr. Kyd, 2 Corp. chap. v. See also Mayor, &c. of Colchester v. Brooke, 7 Queen's B. 383, and Mr. Justice Campbell's learned opinion in Bacon v. Robertson, 18 How. (U.S.) 480; infra, § 334, note; People v. Wren, 5 Ill. 269, 275, citing and relying on Colchester v. Seaber, supra; Smith's Case, 4 Mod. 53; Smith v. Smith, 3 Desaus. (S. Car.) 557; Welch v. Ste. Genevieve, 1 Dillon C. C. 130; chapters on Corporate Officers and Corporate Meetings, post.

Rex v. Osbourne, 4 East, 326; Rex v. Miller, 6 Term R. 277; Wille. 332, pl. 861; Howard's Case, Hutt. 87; Grant on Corp. 306, 308; Thicknesse v. Lancaster Canal Co., 4 M. & W. 472.

2 Black. Com. 485; 2 Kyd, 447; Willc. chap. vii. 325 et seq.; Taylors of Ipswich, 1 Rol. 5; Rex v. Grosvenor, 7 Mod. 199; Smith's Case, 4 Mod. 53, 55, 58; s. c. 12 Mod. 17; Skin. 311; 1 Show. 278; Rex v. Saunders, 3 East, 119; Mayor, &c. of Lyme v. Henley,

§ 331 (166). How dissolved in the United States. These various modes of dissolution, except the first, are believed by the author to be inapplicable to municipal corporations in this country as they are generally created and constituted. Here it is the people of the locality who are erected into a corporation, not for private, but for public or quasi public purposes. The corporation is mainly and primarily if not wholly an instrument of government. The officers do not constitute the corporation, or an integral part of it. The existence of the corporation does not depend upon the existence of officers. The qualified voters or electors have, indeed, the right to select officers, but such officers are the mere agents or servants of the corporation, and hence the doctrine of a dissolution by the loss of an integral part has, in such cases, no place. If all the people of the defined locality should wholly remove from or desert it, the corpora

2 Cl. & F. 331; Rex v. Kent, 13 East, 220; Priestly v. Foulds, 2 Scott N. R. 205, 225; Attorney-General v. Shrewsbury, 6 Beav. 220. See reference arguendo to subject of forfeiture of municipal charter, in Whalen v. McComb, 76 ill. 49. The earlier American cases relating to the dissolution of private corporations by forfeiture of their charters; what will constitute sufficient ground of forfeiture; and the mode of proceeding to ascertain and enforce the forfeiture, are collected, and the result very clearly and satisfactorily stated, in Angell & Ames on Corporations, chap. xxii. See also 2 Kent Com. 305.

Private corporations may lose their legal existence, 1. By the act of the legislature; 2. By the death of all their members; 3. By a forfeiture of their franchises, and 4. By a surrender of their charter. No other mode of dissolution is anywhere alluded to. Boston Glass Manuf. v. Langdon, 24 Pick. 49, 52, per Morton, J., Commonwealth v. Union Ins. Co., 5 Mass. 230, 232; Riddle v. Merrimac Locks and Canals, 7 Mass. 169; School v. Canal, &c. Co., 9 Ohio, 203; Canal Co. v. Railroad Co., 4 Gill & Johns. 1; Vincennes University v. Indiana, 14 How. 268. Legislative power under the head of various constitutional provisions concerning the division, annexation, and consolidation, modification of charter, dissolution, and nature of corporate property as affecting the rights of creditors and others. See 21 American Law Review, 14. The dissolution of a private corporation by authorized legislative act or

judicial sentence does not impair the obligation of a contract any more than the death of a private person impairs the obligation of his contract. This doctrine was based by the court (8 Pet. 281, cited infra) upon two grounds: First, the obligation survives, and the creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of bona fide purchasers; second, every creditor is presumed to contract with reference to a possibility of the dissolution of a corporate body. Mumma v. Potomac Co. (holding that on sci. fa. a judgment could not be revived, or costs adjudged, against a corporation legislatively annulled), 8 Pet. (U. S.) 281. Of dissolution by act of the legislature and its effect on the corporation, its property and creditors, see the important case decided by the Court of Appeals of New York, in reference to the surface railway on Broadway in New York City. People v. O'Brien, 111 N. Y. 1; ante, chap. iv. §§ 112 et seq.

Mr. Grant, in his work on Corporations, considers it doubtful whether an information in the nature of quo warranto will lie, in England, against parliamentary or statute corporations, for usurping powers not given, or misusing those conferred (Corp. 307, 308; Rex v. Nicholson, 1 Str. 299); but in this country the law as to private corporations is indisputably settled, that in such cases an information of this kind may be brought.

Buford v. State, 72 Tex. 182.