City not liable

Odo jure 41

Wyo. 277, 45 L. R. A. 295; Philadelphia v. Rink, 2 Atl. Rep. (Pa.) 505. On the other hand, the courts of a majority of the States that have had occasion to pass upon this question hold that such a payment does protect the community. Among the courts holding this doctrine may be mentioned those of the States of Michigan, New York, Missouri, Ohio, Kansas, Nebraska, and New Hampshire. Wayne County v. Benoit, 20 Mich. 176; Dolan v. Mayor, 68 N. Y. 274; McVeany v. Mayor, 80 id. 185; State v. Clark, 52 Mo. 508; Westberg v. Kansas, 64 id. 493; Steubenville v. Culp, 38 Ohio St. 18, 23; Commissioners of Saline County v. Anderson, 20 Kan. 298; State v. Milne, 36 Neb. 301, 19 L. R. A. 689; Shannon v. Portsmouth, 54 N. H. 183.

It seems to us that the rule laid down in this last class of cases is in reason the better one. It rests upon the familiar and reasonable rule that persons having the right to do business with a de facto officer like the one in question, have the right to regard him as a valid officer, and the right to make payments to him without the risk of having to pay a second time. This is the rule that protected the tax-payers in making payments to McElroy, and there appears to be no good reason why it should not be applied to payments made by the city to him in good faith and before judgment of ouster. Our conclusion is that the city is not liable to the plaintiff for the fees paid by it to the de facto collector.

With regard to the plaintiff's fees due for collections made by him since he took possession of the office, he is of course entitled to them. It is admitted by the pleadings that he duly presented his claim and demanded payment from the city. It is true that the claim so presented was for the fees for the entire year; but the greater includes the less, and we think his claim and demand included the fees earned by and due to him since he took possession.

The next question is whether the plaintiff is entitled to recover from CAM the de facto officer the fees paid to such officer by the city; and the answer to this depends upon the answer to the further question, whether this can be done at common law and without the aid of a

statute.

The courts of this country that have had occasion to pass upon this last question have almost unanimously answered it in the affirmative. That, in cases like the present, the legal right to the office carries with it the right to the salary and emoluments thereof, that the salary follows the office, and that the de facto officer though he performs the duties of the office has no legal right to the emoluments thereof, are propositions so generally held by the courts as to make the citation of authorities in support of them almost superfluous. Nearly all, if not all, cases herein before cited upon both views as to the liability of the city, hold that the de facto officer, for fees and emoluments of the office received by him, is liable at common law to the officer de jure. So far as we are aware the only well-considered case taking a contrary

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view of the law is that of Stuhr v. Curran, 44 N. J. L. 181, 186, and that was decided by a divided court standing seven to five. We think the able dissenting opinion of Chief Justice Beasley in that case shows conclusively that at common law, in a case like the present, the de jure officer is entitled to recover from the de facto officer. Another well-considered case directly in point in favor of this view is that of Kreitz v. Behrensmeyer, 149 Ill. 496, 24 L. R. A. 59. As before intimated, this court has not heretofore had occasion to decide a question similar to the one now under consideration, but in two cases at least the judges who wrote the opinion of the court have expressed views in harmony with what we hold to be the law. Thus, CHIEF JUSTICE SEYMOUR, in Samis v. King, 40 Conn. 298, 310, said: "The right to the salary of an office (as such, independent of actual and valuable services rendered) must on principle depend upon the legal possession of the office." It is a grave question whether a merely de facto officer, even when he actually performs the whole duties of the office, can enforce the payment of the salary. The authorities seem to be that he cannot. CHIEF JUSTICE BUTLER, in State v. Carroll, 38 Conn. 449, 471, says that a de facto officer "cannot collect his fees, or claim any rights incident to his office, without showing himself to be an officer de jure."

That this law will at times operate harshly against the de facto officer, and that it will so operate in the case at bar, must be conceded; and the seeming injustice of it is forcibly stated in the majority opinion of the New Jersey court before cited; but the courts must enforce the law as it is and not the law as they think it ought to be. If the law requires to be changed that must be left to the legislature.

Our conclusion is that upon the facts found in this case the plaintiff is entitled to recover from McEloy the fees retained by the latter as an officer de facto.

The Superior Court is advised (1) to render judgment in favor of the plaintiff against the city of Bridgeport for the sum of $887.50 with interest from the date of demand, (2) to render judgment in favor of the plaintiff against McElroy for the sum of $4,775.02 with interest from the date of demand.

Costs in this court will be taxed in favor of the plaintiff.

In this opinion the other judges concurred.

SHAW, C. J.' The question, and the only one of considerable importance, in the present case, is, whether the plaintiff was liable for the tax which he was compelled to pay, and the amount of which he seeks to recover back in the present action. The objection is, that it embraced an assessment to raise money for a market-house which the town of Lowell, before its incorporation as a city, had voted to build. No question in this case arises upon the relative rights and powers of towns and cities, or upon the change from one form of municipal government to another, during the pendency of these proceedings. Lowell was established as a city in April, 1836. By the terms of the charter, they were made or rather continued a corporation for all purposes for which towns are incorporated, and they were thereby declared to be entitled to all the rights, immunities, powers and privileges, and subject to all the duties and obligations before incumbent upon and appertaining to said town. The question therefore resolves itself into the general one, whether cities and towns in this Commonwealth, by virtue fiction of their general powers, and without any special authority conferred on them respectively for that purpose, have authority in their corporate capacity to build a market-house, to appropriate money therefor, and assess the same, in common with other town charges, upon the inhabitants.

The principle is now well settled, that corporations, being creatures by which several persons are associated together to act in concert for special purposes, can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance. of their corporate duties, and the accomplishment of the purposes of 1 Statement of facts and arguments omitted.-ED.

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their association. This principle is fairly derived from the nature of
corporations, and the mode in which they are organized, and in which
their affairs must be conducted. In aggregate corporations, as a gen-
eral rule, the act and will of a majority is deemed in law the act and
will of the whole, and therefore is to be carried into effect as the act
of the corporate body. The consequence is, that a minority must be
bound, not only without, but against their consent. Such
may extend to every onerous duty, to pay money to an unlimited
amount, to perform services, to surrender lands, and the like. It is
obvious, therefore, that if this liability were to extend to unlimited
and indefinite objects, the citizen, by being a member of a corporation,
might be deprived of his most valuable personal rights and liberties.
The security against this danger is in a steady adherence to the princi-
ple stated, that corporations can only exercise their powers over their
respective members, for the accomplishment of limited and well defined

objects.

And if this principle is important as a general rule of social
right and of municipal law, it is of the highest importance in these
States, where corporations have been extended and multiplied, so as
to embrace almost every object of human concern. The general prin-
ciple itself is fully recognized in several cases in this Commonwealth.
Bangs v. Snow, 1 Mass. R. 181; Stetson v. Kempton, 13 Mass. R. 272;
Willard v. Newburyport, 12 Pick. 227.

But although the rule as thus stated, and thus important and salu-
tary, is clear and unquestionable, much difficulty arises in the appli-
cation of it to such a class of corporations as cities and towns, on
account of the indefinite and miscellaneous purposes for which they
are constituted. This difficulty is stated and illustrated in the case
last above cited.
Willard v. Newburyport, 12 Pick. 227.

The general authority of towns to raise money by assessment of auth to

taxes on the inhabitants, was given by St. 1785, c. 75, § 7, “for the
settlement, maintenance and support of the ministry, schools, the poor,
and other necessary charges arising within the same town."

The authority is not much more definitely expressed in the Revised
Statutes. Revised Stat. c. 15, § 12.

"Towns shall have power to grant and vote such sums of money as
they shall judge necessary, for the following purposes,

For the support of town schools:

For the support and maintenance of the poor:

For burial grounds; and

For all other necessary charges arising within the same town."
By a comparison of the two provisions it will appear that one object
of town charges is introduced into the Revised Statutes that was not
expressed in the old one, that of burial grounds. This subject was
one of those miscellaneous cases, mentioned in the case last cited,
over which towns exercised an authority in fact though none was
given by statute. It is since conferred by this provision of the Revised
Statutes.

"

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But the same remark may be applied to this, as to the old statute, that it is manifestly not intended as an enumeration of all the particular objects, because some of the most obvious subjects of town charge are omitted, such as highways and bridges, pounds, magazines and many others. This is also manifest from the sweeping clause "other necessary charges," which clearly implies that many things, not enumerated, are intended to be included. But the Court are not at all prepared to say, that under this term, "other necessary charges, coupled with the previous clause, " such sums as they shall judge necessary," it was intended to authorize towns to raise and appropriate J money for general objects, or that it was intended to constitute a new, substantive power of taxation. It would be letting in all the mischiefs

tarising from an indefinite and arbitrary power of a majority to bind a

minority to an unlimited extent. Beaty v. Lessee of Knowler, 4 Peters,
152.On the contrary, we think it referred to other provisions of law,
and well established usage, to ascertain what the objects of town
charge are, and to provide that towns might raise money for any pur-
poses thus determined. But to bring any particular subject within this
description of necessary town charges, it must appear to be money
necessary to the execution of some corporate power, the enjoyment of
some corporate right, or the performance of some corporate duty, as
established by law or by long
by long usage. For instance, towns are author-
ized and required to hold meetings; as incidental thereunto they may
hire, purchase or build a town-house. They may prosecute and defend
suits; as incident to which, they may appropriate money to retain
counsel, to pay costs, and to meet and satisfy judgments which may
be recovered against them. In this very case, should the plaintiff
recover, the defendants must have authority, in their corporate capacity,
to raise money to satisfy the judgment, of which the plaintiff, if he
continues an inhabitant, will be liable by way of assessment to pay his
part.

The earlier statutes of the province and colony concur with those
under the present constitution, in vesting towns with the power to
agree upon and make rules, orders and by-laws for managing and
ordering the prudential affairs of the town. St. 1785, c. 75, §7; Re-
vised Stat. c. 15, § 13. The ambiguity lies in the indefinite term “pru-
dential affairs," and the difficulty arises in each case, in settling what
concerns fall within it.
One thing is very clear, that it cannot include
those objects of social concern which are expressly vested in other
bodies, as was settled in the case of Stetson v. Kempton. In that case
it was held, that the defense of the country against a foreign enemy,
being placed under the jurisdiction of the general and state govern-
ments, could not be deemed an object for which towns can raise and
appropriate money.

In the case of Willard v. Newburyport, above cited, some attempt was made to describe what is understood to be" prudential concerns," by stating that it embraces those subjects affecting the accommodation