21 Miss. 408 | Miss. | 1850
delivered the opinion of the court.
This was an action commenced in the circuit court of Clarke on the promissory note of defendants in error, made payable to the president of the board of police of said county and his successors in office. The defendants pleaded that the consideration of the note was a portion of the three per cent, fund belonging to said county, loaned by the president of the board of police to Henry Vance, the principal in said note; and averred “ that the said president of the board of police had no authority in law to loan the said three per cent, fund.” The plaintiff’s demurrer to this plea was overruled, aud judgment final rendered for the defendant. The propriety of the decision of the court on the demurrer presents the only question in the case.
But it is insisted that the boards of police are to be regarded in the character of corporations, hence that they can exercise no power or authority which is not plainly granted by the law. If it were conceded that they are corporations, and subject to the principles which apply generally to institutions of that description, the objection would not be available in this suit. There is no pretence that the consideration of the note is illegal,, or that the contract is void, as being opposed to the public policy. The objection is based exclusively on an assumed want of power in the board of police of Clarke county to lend the money belonging to this fund.
The distinction is obvious between a contract by a corporation, made in reference to a subject lying entirely without the range of the objects for which its powers were granted, and an irregular or illegal exercise of a right conveyed by its charter. If a corporation make a contract entirely foreign to the purposes of its institution, the act is void, simply for want of power in reference to the subject-matter. 7 How. 532. But where a corporation enters into a contract in reference to a subject embraced within the scope of its granted powers, but in so doing exceeds them, the contract will not thereby be rendered void. It might constitute a ground for the resumption of its franchises by the state, but could not be objected by the party sought to be charged. 8 Wheat. 353; The Banks v. Poitaux, 3 Rand. 136; 16 Mass. R. 103; Commercial Bank of Manchester v. Nolan, 7 How. 508; Little v. O'Brien, 9 Mass. 423 ; 4 J. Ch. R. 370 ; 7 S. & M. 697.
By the statutes of 1836 and 1837, the boards of police were vested with the power to administer the three per cent, fund, or any surplus fund belonging to their respective counties. And it seems to have been the intention of the legislature that they should be so managed or administered as to produce profits in the shape of interest or dividends on stock. They were ex
The suit was properly brought in the name of the president of the board, as the note was made payable to him and his successors in office. 8 Cranch, R. 30; Buffum v. Chadwick, 8 Mass. R. 103.
The judgment must be reversed, and cause remanded for further proceedings in the court below.