1 " A contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not, by being carried into execution, become lawful and valid, but the proper remedy of the party aggrieved is by disaffirming the contract and suing to recover, as on a quantum meruit, the value of what the defendant has actually received the benefit of." Pittsburgh, etc. Ry. Co. v. Keokuk, etc. Bridge Co. 131 U. S. 371, 389; Central Transportation Co. v. Pullman's Palace Car Co. 139 U. S. 24.

2 And such distribution should be made within a reasonable time after the dividend is declared. Beers v. Bridgeport Spring Co. 42 Conn. 17. See Brundage v. Brundage, 60 N Y. 544. A purchaser of shares at auction, by the terms of sale of which a deposit was to be made at once, and the remainder of the purchase-money paid at a future time, is entitled to a dividend meanwhile declared. Black v. Hom-ersham, 4 Ex. D. 24. - K.

instead of paying out earnings as dividends in money, additional stock is created, absorbing those earnings, the shares thereof distributed to the trustee under such a trust, must be held by him as additions to the capital, and not paid over to the party entitled to the dividends. (qt)1 The question is not without its difficulty. Municipal corporations created by acts of incorporation, are governed and limited by those acts quite as much as private corporations. In the older States there are towns which rest upon prescription; and in all our States there are general laws applicable to all municipal corporations. The questions which have arisen under the acts of incorporation, or the general laws relating to this subject, are, mainly, questions concerning the right or power of the town or city to make certain by-laws or enter into certain agreements; and the constitutional power of the legislature to confer certain powers upon these corporations. These questions are indefinitely diversified; but the principle which runs through all the cases may be stated thus. A town or city has not only the power of making by-laws or contracts expressly permitted by law but all such as can be reasonably considered incident to the powers expressly given, or as necessary for the proper exercise of those powers; and in determining what powers are thus necessary much regard is paid to the nature of these corporations and the purposes for which they exist; and a liberal though not a lax construction is given to provisions intended to promote the interests of the public.

By way of illustration of this, it may be said, that in Illinois it is held that the legislature may authorize municipal bodies to take stock in railroads, without a vote of the inhabitants. (qu) In Massachusetts, an ordinance of a city prohibiting projecting awnings was sustained; (qv) and another prohibiting any person from permitting swine under his care to go upon a sidewalk. (qw) In Georgia, it is held that a city cannot obstruct the streets by the erection of any building, however necessary. (qx) In Illinois, a city council having by charter a power to establish and regulate markets, has no authority to prohibit the sale of vegetables outside the market limits. (qy) In Iowa, a city may construct a bridge across a stream dividing streets, and issue its bonds to pay for the same, (qz) but has no power to erect a toll-bridge. (qa)

(qt) Minot v. Paine, 99 Mass. 101. See also Leland v. Hayden, 102 Mass. 542; Heard v. Eldredge, 109 Mass. 258; Rand v. Huhbell, 115 Mass. 461; Gifford v. Thompson, 115 Mass. 478.

(qu) Keithsburg v. Frick, 34 Ill. 405. (qv) Pedrick v. Bailey, 12 Gray, 161. (qw) Commonwealth v. Curtis, 9 Allen, 266.

(qx) Columbus v. Jaques, 30 Ga. 506.

1 This is generally law. The authorities are fully collected and discussed in the opinion of Gray, J., in Gibbons v. Mahon, 136 U. S. 549.

In the absence of special provisions in the charter, or of by-laws lawfully made, the corporate acts of a corporation are the acts of a majority at a regular meeting, whether those present were or were not a majority of the members of the corporation. (r) And these corporate acts are binding upon all the members. (s) It does not seem to have been positively decided whether this must be a majority of all the members present, or may be only a majority of all present and voting. But we hold that it may be the latter. Otherwise, persons not voting would be counted as voting against the measure. As a majority of all present binds all the members, because all the members might be present, and perhaps because it is their duty to be present, so a majority of those present and voting should have the same force, because it is within the right and power and perhaps the duty of all present to vote, and so to express their dissent from any measure which they do not approve. The individuality of members is merged in that of the corporation, and therefore at common law no member is liable personally for the debt of the corporation. But in some States the private property of any member of a city or town or school district, or a territorial (not a poll) parish, may be taken on execution against the corporation, and he has his remedy over against the corporation: (t) and in many of our States it is now provided by law that members of Banking Corporations, of Manufacturing Corporations, and, in a few instances, of some other corporations, are responsible for the debts of the corporations in * whole or in part. (tt) The various statutory provisions on this subject

(qy) Caldwell v. Alton, 33 Ill. 416.

(qz) Mullasky v. Cedar Falls, 19 Ia. 21.

(qa) Clark v. Des Moines, 19 Ia. 199.

(r) Attorney-General v. Davy, 2 Atk. 212.

(s) Rex v. Varlo, Cowp. 248; Field v. Field, 9 Wend. 394. - But where the act is to be done by a body within the corporation, and consisting of a definite number, a majority of that body must attend, and then a majority of those thus assembled will bind the rest. Rex v. Bellringer, 4 T. R. 810; Rex v. Miller, 6 id. 268; Rex v. Bower, 1 B. & C. 492; Ex parte Willcocks, 7 Cowen, 402. - The rule is perhaps the same where the act is to be done by the corporation, when that consists of a definite number. Lord Kenyan, Rex v. Bellringer, 4 T. R. 822.

At common law, the corporation may delegate to a select body in itself, its power of electing members or officers. Rex v. Westwood, 7 Bing. 1. - In a corporation composed of different classes, a majority of each class must consent before the charter can be altered, if there be no provision in the charter respecting alterations. Case of St. Mary's Church, 7 S. & R. 517.

(t) Gatehill's case, 5 Dane, Abr. 158; Parsons, C. J., in 7 Mass. 187; Gaskill v. Dudley, 6 Met. 546.

(tt) The following cases relate to this subject: Utley v. Union Tool Co. 11 Gray, 139; Medill v. Collier, 16 Ohio, 599; McHose v. Wheeler, 45 Penn. St. 32; French v. Teschemaker, 24 Cal. 518; Allibone v. Hager, 46 Penn. St. 48; Baker v. Backus, 32 Ill. 79. As to who are usually precise and definite. It has been held that as this personal liability depends wholly on the provisions of positive law, it is to be construed strictly, (u) and where the certificate of the officers of a corporation in due form was sworn to and recorded as the law required, it exempted the stockholders from personal liability without reference to the truth of the statements in the certificate. (v) And in a later case, it was held that the officers of a manufacturing company were not made liable by their false statement that the capital stock was paid in, unless the statement was wilfully false. (w)

Negotiable paper may be made, indorsed, or otherwise disposed of by corporations generally, by the presidents or cashiers writing their names with their titles of office; especially if making or dealing with such paper is within the scope of the proper business of the corporation. (x) is a stockholder, see Lathrop v. Kneeland, 46 Barb. 432. That stockholders are not liable in another jurisdiction, unless by force of some positive law, see Merrick v. Santvord, 34 N. Y. 208. A corporation carrying on a prohibited business cannot interpose their corporate privileges to prevent the liabilities of stockholders. Kichmondville Seminary v. McDonald, 34 N. Y. 379.

(u) Gray v. Coffin, 9 Cush. 199.

(v) Stedman v. Eveleth, 6 Met. 114.

(w) Stebbins v. Edmonds, 12 Gray, 203.

(x) State Bank v Fox, 3 Blatch-ford, 431; Patten v. Moses, 49 Me. 255; Olcott v. Tioga R. Co. 27 N. Y. 546; s. c. 40 Barb. 179; Goodrich v. Reynolds, 31 Ill. 490.