Town of Waltham v. Kemper. over Covel creek, in that town, on the allegation that it was the duty of the town to keep the embankment in repair, averring a neglect of that duty. The cause was not elaborately argued, and the decision of the court, without as much examination as should have been bestowed, was based entirely on the provisions of articles 22, 23 and 24 of the township organization law of 1851 (Scates' Comp. 324), which we then thought, by a fair construction of their provisions, especially those of article 22, imposed a liability on the town, which, on their failure to properly discharge, subjected the town to an action for damages. No reference or allusion was made in the argument to a difference in this respect between corporations created for their own benefit, and the inhabitants of a district invested by statute, in invitum, with particular powers, making them corporations without their consent. It was argued in that case, that the town was a corporation, created by statute, capable of suing and being sued; that they were bound by statute to keep the public highways in repair; that they had power to levy taxes for such purpose, and for a dereliction of such duty they were liable in damages to the plaintiff. In the consideration. given that case, the distinction was not drawn, which seems to have been acknowledged by some courts, between corporations, such as cities created for their own benefit, and towns established by law as civil divisions of a county, merely, and in which the inhabitants had no agency or participation. The former are held to stand on the same ground as individuals, and have no exemptions from liability except such as may be given them by their charters. The reason for the distinction is adverted to by this court in Browning v. The City of Springfield, 17 Ill. 143, and it is this: that a municipality, by voluntarily accepting a charter, impliedly contracts on their part to perform all the duties imposed on them, and they are made of perfect obligation by being clothed with all the power and authority necessary to their full performance; and, in this respect, there is no difference between such a corporation and a private corporation or individual, who had received from the sov ereign power a valuable grant, charged with conditions. At the common law, actions are maintainable against such, but ever since the case of Russell et al. v. The Men dwelling in the County of Devon, 2 Term R. 671, it has been held, with but a few exceptional cases, that towns or counties, though corporations, but existing as such Town of Waltham v. Kemper. only for the purposes of the general political government of the State, are not liable at the common law for actions for neglect of duty, and can only be made liable by statute. It was on the authority of this case that Hedges v. The County of Madison, 1 Gilm. 567, was decided. The departure from the ruling in this case in South Ottawa v. Foster, supra, was doubtless owing to a supposed difference between the authorities of towns, and their powers and duties in regard to public highways, and those of counties. We are satisfied in this respect there is no difference, and the case of Hedges v. The County of Madison must be held to apply to towns, they being the same kind of corporations as counties, and created, in invitum, for certain political or governmental purposes, and the former having no greater power, by statute, over roads and bridges than the latter had. That case holds that the duties to be performed by a county are for the benefit of the public, intimating that the remedy for neglecting to perform them must be by public indictment, and that no private action by an individual claiming to have been injured by the neglect will lie, unless it is given by statute. In the case of these quasi corporations, made so without their consent, duties may be imposed, and their performance compelled under penalties; but the corporators who are made such, nolens volens, are n:t, and cannot be considered, in the light of persons who have voluntarily and for a consideration assumed obligations, so as to owe a duty to every person interested in the performance. Cooley's Const. Lim. 247. Referring to Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; Farnum v. Town of Concord, 2 N. H. 392; Adams v. Wiscasset Bank, 1 Greenl. 361; Baxter v. Winooski Turnpike, 22 Vt. 123; Eastman v. Meredith, 36 N. H. 284, and many other cases, all following the ruling in Russell v. The Men of Devon, supra. The reason which exempts these public bodies from liability to private actions, based upon neglect to perform a public duty, does not apply to villages, boroughs and cities, which accept special charters from the State. The grant of the corporate franchise, in those cases, is usually made only at the request of the citizens to be incorporated, and it is justly assumed that it confers a valuable privilege, and which is held to be a consideration for the duties imposed by the charter. By those charters, larger powers of self government are conferred than those confided to towns or counties; larger privi Town of Waltham v. Kemper. leges in the acquisition and control of corporate property, and special authority is given them to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere. These grants raise an implied promise on the part of the corporation to perform their corporate duties, and it inures to the benefit of every individual interested in its performance. Id. 248. It is upon this theory the cases of Browning v. The City of Springfield, supra; City of Joliet v. Verley, 35 Ill. 58; City of Bloomington v. Bay, 42 id. 503; City of Springfield v. Le Claire, 49 id. 476, are sustainable; and though other courts of great respectability, among them the supreme court of Michigan, by a majority decision, repudiate these considerations, we think they are founded in good reason; and have received the sanction of other courts of the highest authority. The leading English cases are referred to in Browning v. The City of Springfield, supra; Mayor of Lynn v. Turner, Cowper, 86; The Mayor and Burgesses of Lyme Regis v. Henley, 3 Barn. & Adol. 77 (23 Eng. C. L. 32); Weet v. Brockport, 16 N. Y. 161; Hutson v. New York, 9 id. 163; Conrad v. Trustees of Ithaca, 16 id. 158; Storrs v. City of Utica, 17 id. 104; Mills v. City of Brooklyn, 32 id. 489; Lee v. Village of Sandy Hill, 4 id. 442; Meares v. Town of Wilmington, 9 Ired. 73; Pittsburgh v. Grier, 22 Penn. 54; Smoot v. The Mayor of Wetumpka, 24 Ala. 112, and numerous other cases are referred to by Mr. Justice COOLEY, in his dissenting opinion in the Michigan case, City of Detroit v. Blakeby, 2 Alb. Law J., No. 46, p. 396. See, also, Sutton et al. v. The Board of Police of Carrol County, 41 Miss. 236. We are satisfied, on principle and authority, the town of Waltham was not liable to this action at common law, and none has been given by statute. The court, therefore, should have allowed the motion in arrest of judgment, the declaration disclosing no liability. It was error to refuse the motion, and for the error the judgment must be reversed ar 1 the cause remanded. Judgment reversed. Bradley v. Ballard. BRADLEY, appellant, v. BALLard. (55 Ill. 413.) Corporations-acts ultra vires. A mining corporation was organized under a statute requiring the operations of the corporation to be carried on in Illinois. The corporation afterward engaged in mining in Colorado, and in the prosecution of its work borrowed large sums of money, for which notes of the corporation were given. Held, that a stockholder could not enjoin the collection of the notes, the doctrine of ultra vires not applying. BILL in chancery. The opinion states the case. Knowlton, Jameison & Scales, for appellant. George Herbert and George G. Bellows, for appellee. LAWRENCE, C. J. This was a bill in chancery, brought by Bradley, against Ballard and others, for the purpose of enjoining the prosecution of a suit pending in the circuit court of Cook county, against a corporation called "The North Star Gold and Silver Mining Company," in which complainant was a stockholder, upon certain promissory notes given by said company, and also to cancel certain other notes not yet in suit. The court sustained a demurrer to the bill, and, the complainant not asking to amend, a decree of dismissal was entered. It appears, by the averments in the bill, that various persons associated themselves together in the city of Chicago, in the year 1866, and filed their articles of organization in the circuit court of Cook county, under the general incorporation law, whereby they became incorporated under the title above stated. The statute requires the certificate to state the town and county in which the operations of a company thus incorporated are to be carried on, and the certificate of this company stated that their operations were to be carried on in the city of Chicago, in the county of Cook and State of Illinois. It further appears from the bill that the company thus organized engaged in mining in the Territory of Colorado, and in the prosecution of that work borrowed large sums of money, for which the notes Bradley v. Ballard. described in the bill were given, except some that are alleged to have been given for official salaries. It is not claimed that they were not given for a full and fair consideration, but their cancellation is sought upon the ground that they were given for money borrowed to enable the company to prosecute a business which it had no power to prosecute, and that this purpose was known to the lenders of the money. It is insisted that, although the business of the corporation was mining, yet, by the terms of its certificate, it had no power to prosecute that business beyond the limits of the city of Chicago, or certainly not beyond the limits of this State. Whether this is the proper construction of the statute is a question we do not find it necessary to decide. Conceding that it is, and that this corporation had no power to engage in mining in Colorado, we are still of opinion the complainant has not, by his bill, entitled himself to relief. He became a stockholder to the extent of $25,000, and from the name and character of the company he must have known it was organized for the purpose of mining beyond the limits of this State. He subsequently became one of the directors of said company, and it is a legitimate inference, from the bill, that at least a part of these debts were created while he was thus participating in the control of the company. There is no pretense in the bill that he ever, in any mode, objected to the mining operations of the company in Colorado, or to the borrowing of money therefor, and the fair, and, indeed, unavoidable inference, from the nature of the company, the connection of complainant with it, and the silence of the bill in this regard is, that he did not object. On what ground, then, can he ask a court of equity to enjoin the collection of these notes? It is said by counsel for complainant that a corporation is not estopped to say, in its defense, that it had not the power to make a contract sought to be enforced against it, for the reason that, if thus estopped, its powers might be indefinitely enlarged. While the contract remains unexecuted on both sides, this is undoubtedly true, but when, under cover of this principle, a corporation seeks to evade the payment of borrowed money, on the ground that, although it had power to borrow money, it expended the money borrowed in prosecuting a business which it was not authorized to prosecute, it is pressing the doctrine of ultra vires to an extent that can never be tolerated, even though the lender of the money knew that the corporation was transacting a business beyond its chartered powers, and VOL. VIII. - 83 |