Odger's English Common Law

BY-LAWS. 95
the management of the common lands which will bind all commoners. A
railway company may make by-laws for the regulation of its traffic which
will bind all its passengers and servants. The town council of a borough
may make by-laws for the government of the borough which will bind all
who come into it. But such by-laws will not affect the outside public or
derogate from their vested rights. 1
In determining the validity of by-laws made by public representative
bodies, such as county councils, the Court ought to be slow to hold that a
by-law is void for unreasonableness. A by-law so made ought to be
supported unless it is manifestly partial and unequal in its operation
between different classes, or unjust, or made in bad faith, or clearly
involves an unjustifiable interference with the liberty of those subject
to it. 2
Disobedience to a by-law is generally punished by imposing
a fine ; a by-law cannot be made to inflict imprisonment on
an offender or to forfeit his goods, unless such a power be
expressly given by statute. 3 But a chartered trading corpora-
tion may make a by-law, forfeiting the stock or shares of any
member of the corporation who does not pay his calls. 4
The power to make by-laws may be given (i.) by charter,
either expressly or impliedly, (ii.) by custom, or (iii.) by
statute.
(i.) By Charter.—A charter is a document under the seal
of the Crown granting certain privileges 5 to individuals or
corporations, or forming individuals into a corporation.
Power to make by-laws is usually given in express terms by
the charter creating the corporation. When not so expressed,
still the power is deemed to have been granted by implication
1*
for it is essential to. the very existence of a corporation.
"When there is an express grant of such a power, it can only
be exercised by the persons on whom the power is expressly
conferred, and in the manner and for the purposes, if any,
specified. But if the charter be silent, the power rests in
the members of the corporation at large for all purposes
within the charter. 7
i Mace v. Philcox (1864), 16 C. B. N. S. 600.
2 Kruse v. Johnson, [1898] 2 Q. B. 91
» Clark's Case (1596), 5 Bep. 64 a ; Kirk v. Nowill (1786), 1 T. B. 118.
< Child v. Hudson's Bay Co. (1723), 2 P. Wms. 207.
s A privilege conferred by a charter is called a franchise.
« Selwyn'a Nisi Prius, 13th ed., p. 1129.
7 Child v. Hudson's Bay Co., supra.
;