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a note and mortgage in the name of the corporation, under its seal, attested by the signatures of the president and secretary, which mortgage is recorded on the day of its execution and a record of their proceedings is made, the execution of such mortgage cannot be assailed upon foreclosure on account of the failure of the directors to observe certain rules and regulations of the corporation enacted for the internal management of its affairs, no director or stockholder having taken any previous action to disaffirm such mortgage. Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 149 (45 N. E. Rep. 410; 56 Am. St. Rep. 187). New Jersey Pub. Laws 1893, p. 121, ch. 67, construed and applied-power of consolidating corporations to execute mortgages. Camden Safe-Deposit & T. Co. v. Burlington Carpet Co., N. J. Eq. (33 Atl. Rep. 479). Where the management of a corporation is vested in a board of three directors, a majority of whom can control, and the corporation acquiesces for four years in the management of its affairs by two members of such board who are officers of the corporation, a conveyance of land authorized by such members to the other director cannot be attacked by the creditors of such corporation on the ground that the sale was not authorized at a director's meeting, as against a bank holding as a pledge the purchase money notes arising out of the transaction, upon which it has advanced money to such a corporation. Estes v. German Nat. Bank, 62 Ark. 7 (34 S. W. Rep. 85).

Sec. 87. Ultra vires. The United States statute, national banking act, Rev. Stat. U. S., § 5136, provides that "no association shall transact any business except such as is incidental and necessarily preliminary to its organization, until it has been authorized by the comptroller of the currency to commence the business of banking." Construing and applying this statute it is held that the lease of real estate upon which to conduct its banking business by a national bank before it is authorized by the comptroller of the currency to commence the business of banking, is ultra vires and void and that no action can be maintained by the lessor upon such lease. However, the lessee may recover from the lessor the amount of benefits the latter has derived from the pos

session of the premises. Where benefits have been received under an ultra vires agreement, relief granted is not upon the basis that a valid or merely voidable contract has been entered into; the act not being malum in se, the parties, as near as possible, will be restored to their original condition. Mc Cormick v. Market National Bank, 162 Ill. 100 (44 N. E. Rep. 381). Citing, Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290 (6 Sup. Ct. Rep. 1094); Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1 (9 Sup. Ct. Rep. 409); Thomas v. Railroad Co., 101 U. S. 71; Society v. Crowell, 65 Ill. 453-458. In New York it is held by a divided court that a corporation lessor may recover rent for the use and occupation of property under a lease by it which is ultra vires. Bath Gaslight Co. v. Claffy, 151 N. Y. 24 (45 N. E. Rep. 390; 36 L. R. A. 664). See opinion for exhaustive collation of authorities on ultra vires contract. A contract by a banking corporation to engage in the operation of a mine is ultra vires. Weston v. Estey, 22 Colo. 334 (45) Pac. Rep. 367).

Sec. 88.

Municipalities-Rights of lessee of market stall. The licensed occupant of a stall in a market house, has no such interest in the soil as he acquires by virtue of a contract of lease for a store or dwelling-house; he cannot recover possession of it by an action in ejectment if wrongfully evicted. If the occupant of such a stall attempts to hold it in violation of the ordinance of the city he may be removed by the officers in a summary manner, they using no more force than is necessary to remove him. Hutchins v. Town of Durham, 118 N. C. 457 (24 S. E. Rep. 723; 32 L. R. A. 706).

Sec. 89. Municipalities and officers-Liability for wrongs and assessments. A municipal corporation, together with its officers and servants, may be liable for a trespass for removing a fence, cutting down trees and building a sidewalk, under the mistaken belief that the enclosure was an encroachment on the street. Brink v. Borough of Dunmore, 174 Pa. St. 395 (34 Atl. Rep. 598). It is held that a municipal ordinance cannot create a civil liability against a person violating it and in favor of one who is injured thereby; and that a city

is not liable for damages resulting from a failure to enforce ordinances governing public safety. Moran v. Pullman Palace Car Co., 134 Mo. 641 (36 S. W. Rep. 659; 56 Am. St. Rep. 543). The negligent omission of a public officer to perform a ministerial duty or an improper discharge thereof, renders him liable to be enjoined and to respond in damages to the injured party. Wright v. Shanahan, 149 N. Y. 495 (44 N. E. Rep. 74). A city having contracted for the improvement of a street abutting school property not subject to taxation or assessment, is liable to the contractor for the improvement. Louisville v. Leatherman, Ky. W. Rep. 625).

(35 S.

Sec. 90. Municipalities-Leasing of public property and public rights. In New Jersey it is held that in order to authorize a lease of lands belonging to a town the common council must first pass an ordinance directing such lease to be executed; it cannot be done by resolution. State v. Inhabitants of Phillipsburg, 58 N.J. L. 506 (33 Atl. Rep. 852). A public corporation vested with powers by the state to be exercised for the public cannot transfer to another the exercise of such powers, and make a lease of its property necessary to enable it to execute its functions, without legislative consent. Persons dealing with a corporation must take notice of what is contained in the law of the organization, and must be presumed to be informed of the restrictions annexed to the grant of power by the law by which the corporation is authorized to Smith v. Cornelius, 41 W. Va. 59 (23 S. E. Rep. 599; 30 L. R. A. 747). As to the power of a city to lease a portion of its water front to a steamship company for use as a wharf, and construction of a particular lease of this character, see Pacific Coast S. S. Co. v. Kimball, 114 Cal. 414 (46 Pac. Rep. 275). Cities have no power to make contracts or to pass by laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. L. Und. Serv. Co. v. Murphy, 134 Mo. 548 51; 56 Am. St. Rep. 515; 34 L. R. A. 369). 1819, 1 Rev. Code, p. 250, ch. 71, § 16; Code 50, § 1; Acts 1878-79, p. 300, ch. 58, § 7, construed and

act.

State ex rel. St. (34 S. W. Rep. Virginia Code 1849, p. 255, ch.

applied-lands held by county for public buildings-use of and contracts concerning. Alleghany Co. v. Parrish, 93 Va. 615 (25 S. E. Rep. 882). In the absence of statutory authority county commissioners cannot lease rooms in a court house to be used for private purposes. State ex rel. Scott v. Hart, 144 Ind. 107 (43 N. E. Rep. 7; 33 L. R. A. 118).

Sec. 91. Legislative power to authorize cities to divert public property to the use of railroads-Construction of statutes. Minn. Gen. Stat. 1894, § 2680, provides that "The common council, board of aldermen, trustees, commissioners or other corporate authorities of any city, town, village or other municipal corporation, are hereby authorized and empowered to grant, sell, convey or lease any public grounds or place within their corporate limits to any railroad corporation; subject nevertheless to all the rights of the original proprietors of such grounds." Construing and applying this statute to an ordinance authorizing a railway company to construct a freight house upon a public levee or landing, the court say that the language of this section is "broad enough to permit, if not require, a construction which would effect a purpose which the legislature has no power to authorize. It would authorize the absolute sale or gift of any public ground, for whatever purpose dedicated, to any railroad company, to be used for any purpose for which such company might hold or use real estate, and thus wholly extinguish all rights of the public in the premises. The legislature has no such unlimited power over land dedicated to a specific and particular public use, but it does not follow that the statute is wholly void and ineffectual for any purpose. Its operation may be cut down by construction within the limits of the legislative powers, and held effectual to authorize a municipality to grant to a railroad company any rights or privileges in public grounds which the legislature itself might have granted; that is, any rights or privileges consistent and in conformity with the purposes for which such grounds were dedicated. We cannot agree with the contentions of plaintiff's counsel that this general statute has been by implication repealed as to the city of St. Paul by subsequently enacted provisions of the city charter, or that the statute does not

apply to public grounds of the character of this levee."

City

of St. Paul v. Chicago, M. & St. P. Ry. Co., 63 Minn. 330 (68 N. W. Rep. 458).

Sec. 92. Power of city to authorize the use of a street for a freight house. It is held that a city charged by its charter with the "care, supervision and control" of its highways and streets and authorized to grant the right of way over the same to horse or steam railway companies and agree upon the terms, manner and conditions of such grants, has no power to grant to a railway company the right to construct and maintain a freight house for its own exclusive use upon any "public levee " in the city. City of St. Paul v. Chicago M. & St. P. Ry. Co., 63 Minn. 330 (65 N. W. Rep. 649). The court say: "It is elementary law that a municipal corporation has no proprietary rights in the streets, levees, or other public grounds within its limits. Whatever rights it has it holds merely in trust for the public. It is equally elementary that all its powers over such public grounds are derived from the legislature. It can exercise no power over them, except such as is given it by the legislature, either express or by necessary implication. It is also well settled that a grant of power to a city to grant any privileges or rights in streets or other public grounds is to be strictly construed, and not enlarged by construction, and, if there is a fair or reasonable doubt as to the existence of its power, it will be resolved against the municipality."***"We have not overlooked the difference between a street' and a 'levee.' A street is designed exclusively for the purpose of travel and intercommunication. The word ' levee,' as used in the West and South, means a landing place for vessels, and for the delivery of merchandise to and from such vessels, and, as incident to that, for the temporary storage of the merchandise. Hence, some things might be a proper use of a public levee which would constitute a misuser ofa street. For example, the erection and maintenance of a warehouse as a place for the receipt and delivery and temporary storage of goods while in transit would probably be a proper use of a levee, provided it was open to the common use of all on the same terms. This would be in aid of and necessary to the main object for which a levee is designed. But

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