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larged as well as arising under the former jurisdiction of the court. It is an established rule that where an action founded upon one statute is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given. The power to grant temporary alimony is incidental to the divorce jurisdiction. If an act merely directs a particular measure to be taken, it must be understood as referring its execution to the proper existing agents, and to annex, by implication, all the ordinary means for carrying the measure into effect. Where an inferior court is empowered to grant an injunction, it has power to enforce its observance by punishing disobedience; such power being essential to afford relief by injunction. A statute authorizing a magistrate to examine such witnesses as might be brought before him authorizes him to issue subpoenas for them, and to compel their attendance by the usual process of the court.6
$ 342. Where the statutory judicial jurisdiction in a case of contested election is specially confined to certain specified courts and is not a method of redress in every case in which an alleged illegal election has occurred, it can only be exercised with reference to the grounds of contest enumerated in the act; otherwise jurisdiction would have been given in
general terms.? Where the jurisdiction given is general it includes authority to decide all matters and questions involved in the contest. “It may determine which contestant is elected, or if, from fraud or any other circumstances, it be of opinion that there has been no legal election, it may so adjudge, and declare that the office in question is vacant.” 8 Courts having inherently the power of revising the proceedings of all inferior jurisdictions, may in the exercise of that power correct er
People v. Commissioners, 3 Hill, Matter of Oath Before Justices, 12 599.
Coke, 130. 2 Baltimore, etc. R. R. Co. v. Wilson, ? Ellingham v. Mount, 43 N. J. L. 2 W. Va. 528, 556.
470. See Anderson v. Levely, 58 Md. 3 Goss v. Goss, 29 Ga. 109; McGee 192. v. McGee, 10 id. 477.
8 Anderson v. Levely, supra; Handy 4 United States v. Wyngall, 5 Hill, v. Hopkins, 59 Md. 157. See People 16.
». Chapin, 105 N. Y. 309, as to a gen5 Martin, Ex parte, L. R. 4 Q. B. Div. eral power given to the comptroller 212.
to cancel tax sales and refund the 6 People v. Hicks, 15 Barb. 160; money to the purchaser.
rors on the face of their proceedings, but not rejudge their judgments on the merits. This correctional power extends no further than to keep such inferior tribunals within the limits of their jurisdiction and to compel them to exercise it with regularity. A statute conferred jurisdiction upon the supreme court to review the report of commissioners of estimate and assessment for opening a street. It was held that the power was conferred to be exercised by it as a court, and not as a tribunal of inferior jurisdiction created by statute, or by its justices or commissioners appointed by the legislature. Gardner, J.: “ The powers incident to its general jurisdiction, so far as applicable, at once attached to the new subject. In administering this law, as every other, the court could require the services of its officers, punish for contempt, issue attachments, use the buildings appropriated to the ordinary business of the court, and set aside the proceedings on sufficient cause. Where the judgment of an appellate court on certiorari is made final by statute, this finality extends to the award of costs on the certiorari, and execution for the same in the case removed." If the law give a discretion to do or not to do a particular thing in the trial of a cause in court, without specifying by whom it is to be exercised, the judge, who is the expounder of the law and the controller of power, is, by general intendment, the depositary of that discretion. Courts of record have inherent power to make orders or general rules not contravening the law to regulate their proceedings in the exercise of their jurisdiction; and this power may be granted them by statutes which vest in them a new jurisdiction. It is not competent for the superior courts to make a rule restricting
Carpenter's Case, 14 Pa. St. 486. dolph, 3 Binn. 277; Walker v. Ducros,
2 Matter of Canal and Walker Sts. 12 18 La. Ann. 703; Vanatta v. AnderN. Y. 406.
son, 3 Bin. 417; People v. McClellan, 3 Palmer v. Lacock, 107 Pa. St. 346; 31 Cal. 101 ; Kennedy v. Cunningham, Silvergood v. Storrick, 1 Watts, 532. 2 Met. (Ky.) 538; David v. Ætna Ins.
4 Caldwell v. State, 34 Ga. 18, 19. Co. 9 Iowa, 45; People v. Chew, 6
3 Anderson v. Leveley, 58 Md. 192; Cal. 636; Lynch v. State, 9 Ind. 541; Fullerton v. Bank of U. S. 1 Pet. 604; Sellars v. Carpenter, 27 Me. 497; Vail Brooks v. Boswell, 34 Mo. 474; Boas V. McKernan, 21 Ind. 421; Gist v. v. Nagle, 3 S. & R. 253; Snyder v. Drakely, 2 Gill, 330; Seymour v. Bauchman, 8 id. 336; Deming v. Phillips, etc. Co. 7 Biss. 460; Texas Foster, 42 N. H. 165; Suckley v. Rotch- Land Co. v. Williams, 48 Tex. 602. ford, 12 Gratt. 60; Barry v. Ran
the discretion of the trial court on matters as to which that discretion at common law is unlimited, as in the recall of a witness. The authority to punish for contempt is granted as a necessary incident to every tribunal exercising jurisdiction as a court. If a statute assumes jurisdiction to exist and regulates its exercise it will confer it.3
$ 343. When a statute gives a right or imposes a duty, it also confers by implication the power necessary to make the right available or to discharge the duty; hence the acts which directed that the board of police should take deeds of trust on real estate from the borrowers from the common school fund entitled them to make the right available by purchasing the land when sold for the payment of the debt due the school fund and to resell the same for the collection of the debt. Where a power is granted and the mode of its exercise not prescribed, it will be implied that it is nevertheless to be exercised. By a declaratory provision the legislature enacted that a thing might be done which before that time was unlawful, and added a proviso that nothing therein contained should be so construed as to permit some matter embraced in the general provision to be done; this was held as an implied prohibition of the excepted act, though before that time it was lawful. The power given to a sheriff to sell on execution the interest of a pledgor in goods pledged incidentally or by implication authorized him to take the goods out of the hands of the pledgee. The legislature increased the salaries of certain judicial officers of a municipal corporation, which salaries were a charge on such corporation. Though there was no present fund to pay the same, the liability existing, there was held to be an implied power to create one, and that the city is subject in the ordinary modes of having legal liabilities enforced. Power given to a municipal corporation to receive
1 De Lorme v. Pease, 19 Ga. 220. Lapp, 26 Pa. St. 99; Perry v. Mitchell,
2 United States v. New Bedford 5 Denio, 537. Bridge, 1 Woodb. & M. 401; State v. 3 State v. Miller, 23 Wis. 634. Morrill, 16 Ark. 384; Mariner v. Dyer, 4 Gaines v. Faris, 39 Miss. 403. 2 Me. 165: Yates v. Lansing, 9 John. • People v. Eddy, 57 Barb. 593. 395; Randall v. Pryor, 4 Ohio, 424; 6 State v. Eskridge, 1 Swan, 413. Gates v. McDaniel, 3 Port. 356; Lin- 7 Stieff v. Hart, 1 N. Y. 20. ing v. Bentham, 2 Bay, 1; Albright v. 8 Green v. Mayor, etc. 2 Hilt, 203,
a grant of lands for the purpose of laying or widening streets includes in it the power to remove buildings."
$ 344. When the legislature gives power to a public body to do anything of a public character, the legislature means also to give to such body all rights without which the power would become wholly unavailable, although such meaning cannot be implied in relation to circumstances arising accidentally only. In the power to lay sewers is implied the right as against the land-owner of subjacent support. When a municipality is created to further certain objects of general concern, and there is given to it general powers to be used to that end, the legislature must be held to have intended to confer all power at any time needful thereto. From the general power to take lands to further the public health results the power, whenever it is necessary so to do, to take lands held and used for other prior public purposes. The creation of a municipal corporation includes a grant of a new power to make by. laws or ordinances for the government of the inhabitants, and to enforce them. The power to make an addition to a public building is included in the grant of power to erect and repair such building. A construction cannot be given to the laws conferring power to levy a tax for the “ erection of public buildings,” which would limit the exercise of the power to the erection of new houses, when the object of the law could even be attained at less expense by an addition to a public house already built. A railroad company was granted by statute a right to cross another railway by a bridge to be erected for that purpose; under this grant it was held that the grantee had the right for that purpose to place temporary scaffolding on the property of the other party, and to do all other acts necessary for the enjoyment of the principal right of crossing. Power to sue for debts due to the estate is implied in the authority given to administrators ad colligendum, “to secure and collect the said property [i. e., of the estate], whether it be goods, chattels, debts or credits, etc.; it was held amply suffi
1 Patchin v. Brooklyn, 2 Wend. 377. 4 State v. Young, 3 Kan. 445.
2 In re Corporation of Dudley, L. R. 5 Brown v. Graham, 58 Tex. 254. 8 Q. B. Div, 93.
6 Clarence R’y Co. v. Great North 3 Matter of the City of Buffalo, 68 of Eng. etc. R’y Co. 13 M. & W. 706, N. Y. 167, 172.
cient to authorize the bringing of suits if necessary for the purpose of executing the power.' Overseers of the poor of a town, being public agents and trustees of it in respect to the power, have necessarily, without express authority from the legislature, a capacity to sue commensurate with the public trusts and duties.?
§ 345. If a corporation is organized for a business which implies the necessity to raise money, the capacity to make notes and securities usual in such cases will be implied. Every corporation is by implication possessed of the power to employ the appropriate means to accomplish its chartered purpose. A municipal corporation may exercise, as incident to the purpose of its creation, such powers as will enable it fully to discharge the duties devolving on it. It has the power, and it results from its corporate existence as a town, to erect a building suitable for the accommodation of officers and records, and for the preservation of its necessary property. The right to erect such a structure is incidental to the powers expressly granted, or essential to carry out the objects of the corporation. Where the charter of a corporation authorizes it to purchase land for a specified purpose, in the absence of evidence it will be presumed that any land purchased by it was acquired for the purpose authorized by the charter.? If the taking effect of a statute depends on subsequent acts of executive officers, directed by the enactment to be done, it will be presumed that such acts when due have been performed. There is a like implication wherever any fact must precede an enactment.' Where legislation depends on facts to be ascertained by the legislature, the declaration of such facts in the act is taken as conclusive. Thus, where the legislature determines that a public improvement will be a benefit to the adjacent property, and that the expenses of making the same shall be paid
i Ventress v. Smith, 10 Pet. 161. 4 Van Sicklen v. Burlington, 27 Vt.
2 Overseers of Pittstown v. Over- 70, 76. seers of Pittsburgh, 18 John. 407, 418. 5 Clarke v. Brookfield, 81 Mo. 503,
31 Moraw. on Corp. $ 350; Will- 511. iamsport v. Commonwealth, 84 Pa. 6 State v. Haynes, 72 Mo. 377. St. 487; Slark v. Highgate Archway 7 Mallett v. Simpson, 94 N. C. 37. Co. 5 Taunt. 792; Broughton v. Man- 8 Stine v. Bennett, 13 Minn, 153; chester Water Works Co. 3 B. & Ald. State v. Dunning, 9 Ind. 20. 1, 12.
9 State v. Noyes, 47 Me. 189.