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from judicial consideration. If the act is constitutionally passed, the corporation is lawfully created, and that is an end of the matter. In some states, however, this power of creating involuntary municipal corporations does not exist in the legislature. This is true of Ohio, Massachusetts, and other states where there are constitutional provisions requiring the popular consent before the corporation can come into existence.

6. Legislative power-How exercised. The legislature, unless specially directed or limited by the constitution, may, in its discretion, create corporations (a) by a special charter; (b) under general legislation authorizing the erection and organization of corporations if done in accordance with the popular will.

When a community desires a charter granting peculiar corporate privileges, or when a legislature thinks that a community should exercise corporate powers of a peculiar character, a special act called a "charter" is enacted for such community. This is peculiarly true in regard to our great cities, all of which exist under elaborate charters specifying the franchises, privileges, and powers of the corporation, the various departments and officers thereof, the duties and powers of each, and, indeed, all other things supposed to be necessary to the well-being of the corporate community which can be enacted into general law. This charter is the constitution of the municipality, which under it may enact by-laws or ordinances not inconsistent with it or with the law of the land.

7. General charter.-Municipal incorporation under general law is thus effected: Usually an act is passed prescribing the conditions upon which communities may become incorporated as cities, boroughs, or villages, and directing the steps to be taken to bring about the incorporation. Ordinarily, the provisions of such act are that, whenever the people residing within the boundaries containing a certain number of acres or square miles wish to become incorporated, they shall manifest that desire by public election; then the incorporation shall be effected by another election for choosing the necessary officers to manage and control the affairs of the municipality; whereupon the corporation shall become and be vested with certain powers, privileges, rights, and franchises specified and enumerated in the law. This organization usually takes place under the direction of some court or other existing agency of the state, and the result of the popular action, called a "charter," is properly recorded in the county office.

8. Constitutional provisions.-In some states the constitution provides that no corporations shall be created by special law. The language employed in the various constitutions is not uniform or identical, though the pivotal question in each case seems to be whether the general term "corporation" includes municipal corporations. In New York, Ohio, Kansas, and Nebraska, the decisions are to the effect that the word "corporation," or phrase "body politic and corporate," includes municipal corporations as well as private. But in New Jersey, Tennessee, and Rhode Island the holding is to the contrary.

In two states of the Union-Missouri and California-there is a constitutional provision that cities having more than one hundred thousand population may frame their charters for themselves, subject to certain restrictions and limitations expressed in the constitutional provision permitting it.

9. Compliance with conditions.-Substantial compliance with the requirements of the general laws for municipal corporations is essential, and is sufficient. The erection of a municipality is not academic, but political; and so the courts apply, in cases challenging the existence of the corporations, those larger rules of life and action which pertain to public affairs, and give substantial justice.

From these considerations of public policy have arisen a class of corporations known as corporations de facto. A corporation de facto is an existing corporation, defective in some essential feature of organization, but with a right to continued existence which may be impeached only by the state in a direct proceeding for that purpose.

To constitute a corporation de facto, there must be (1) a valid law authorizing incorporation; (2) an attempt in good faith to organize under it; (3) a colorable compliance with this law; and (4) an assumption of corporate powers.

10. Corporations by implication.-A corporation may be created by implication as well as by positive expression of the statute, provided there is a clear manifestation of legislative intention to constitute a corporation, or to invest it with corporate powers and franchises, or to recognize an existing body as

having the essential franchises and powers of a corporation. The usual words employed in a royal charter to constitute a corporation were: "We create, erect, found, incorporate," though words of similar import were held sufficient at the common law. The rules of the common law in regard to corporations are of general application in this country, and wherever powers and privileges existing only under incorporation are conferred upon a body of persons, or upon the residents or inhabitants of a certain town or district, a corporation will be implied, to the end that the grant may not fail.

11. Popular consent.-Except in those states where the constitution requires popular assent to the creation of a municipality, it is not necessary that a special charter shall be assented to by the people. Since the municipality is created at the legislative discretion, and for the public welfare, as an instrumentality of government, it is not essential that the inhabitants or residents of the municipal boundaries shall give consent to the charter, as is required in the case of private corporations.

Where the incorporation is under general law, however, the popular assent is usually, if not invariably, required, as an essential feature of the incorporation, and a condition precedent thereto. The state says to its citizens in all its populous subdivisions: "It is permitted to you, but not required of you, to be incorporated as a municipality. Choose whether you will be so. If you vote to apply the provisions of the general incorporation law to yourselves, then and thereby you will become a municipal corporation."

12. Validity-How tested. The validity of a municipal corporation is not subject to private or collateral attack, but is subject to impeachment only by the state in a direct proceeding for that purpose. The state has created the municipality as an agency of government. It may terminate that existence at will. But even the state has been held estopped from denying the validity of the incorporation where the municipality has existed and exercised corporate functions for a long time with the consent of the state; and, whenever the question of the validity of incorporation is raised, there is a strong tendency by the courts, in recognition of the status quo (existing condition), to uphold the validity and power of the municipality.

13. Alteration. The legislature also has plenary powers, unless forbidden by the constitution: (a) to change the boundaries of municipal corporations so as to enlarge or decrease their territory; (b) to divide a municipal corporation into two or more separate municipalities; (c) to unite two or more separate municipal corporations into a single one; (d) to amend the charter, either by special or general legislation, so as to increase or diminish the municipal powers; (e) to repeal the charter, and thereby dissolve the corporation.

Territorial changes. In enlarging the boundaries of a municipality, only adjacent or contiguous territory can be attached. The courts of the country have been inclined to restrict the scope of the legislative power in enlarging corporations so as to observe the unity, territorial as well as legal, of a munic

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