Clarke v. Fay

Dixon, C. J. The act of congress approved May 23, 1844 (5 U. S. Stat. at Large, 657), obviously contemplates the corporate authorities of a town, or place incorporated for the purpose and possessing and exercising the powers of a local or municipal government, such as a town, village or city, according to the commonly accepted meaning of these words. The corporate authorities of such a town or place are authorized to enter, at the proper land office, such portions of the surveyed public lands within the corporate limits of such town or place, as have been or shall _ be settled upon and occupied as a town site, in trust, for the several use and benefit of the occupants thereof, &c. The complaint does not aver that any such corporation existed or was organized on the 16th day of November, 1858, or that it now exists, or that the plaintiffs or their predecessors in office are or were the trustees of any such corporation. On the contrary, the reasonable and just inference is, that the “body corporate,” of which the plaintiffs aver themselves to be the trustees, was organized under the act of the legislature of this state, approved May 17th, 1858 (Laws of 1858, chap. 151), and under which neither the plaintiffs nor the corporators possess any power whatever of local or municipal government. Such trustees were not authorized to make the entry. It follows, therefore, that the complaint is defective in substance, and that the order sustaining the demurrer must be affirmed. By the Court. — Order affirmed.