bills in equity to compel a street railway street railway company might apply to the company to repair and maintain the surface board of aldermen of a city, or the selectof the streets through which its tracks ex- men of a town, for the location of the tracks tend, which judgments were affirmed on ap- of the railway company in the streets of the peai by the Supreme Judicial Court of that city or town, and, after hearing, it was proState. Affirmed. Also vided that the board might grant the petiIN N ERROR to the Superior Court of the tion "under such restrictions as they deem Commonwealth of Massachusetts for the the interests of the public may require; and County of Worcester to review a judgment the location thus granted shall be deemed affirmed by the Supreme Judicial Court of and taken to be the true location of the that State in favor of defendant in an action tracks of the railway, if an acceptance thereon a contract under which a street railway of by said directors in writing is filed with company agreed to pave and repair the said mayor and aldermen or selectmen withstreets through which its tracks extended. in thirty days after receiving notice thereAffirmed. of." Mass. Pub. Stat. chap. 113, § 7. See same cases below, 182 Mass. 49, 64 N. The law also provided (§ 21 of above act) E. 581. that the board of aldermen or the selectmen might, from time to time, “under such reStatement by Mr. Justice Peckham: strictions as they deem the interests of the These five cases were brought here by writs public may require, upon petition, authorize of error, sued out by the city of Worcester, for a street railway company whose charter has the purpose of reviewing the several judg- been duly accepted, and whose tracks have ments of the supreme and superior courts of been located and constructed, or its lessees the commonwealth of Massachusetts, re- and assigns, to extend the location of its spectively, affirming the judgments of the tracks within their city or town without entrial courts in favor of the railroad com-tering upon or using the tracks of another pany, the defendant in error. The five cases street railway company; and such extended involve the same questions, and were location shall be deemed to be the true locabrought for the purpose of answering any tion of the tracks of the company, if its acpossible objection to the particular mode ceptance thereof in writing is filed in the adopted in any one case for the purpose of office of the clerk of the city or town within obtaining the relief sought by the plaintiff thirty days after receiving notice thereof." in error. 182 Mass. 49, 64 N. E. 581. The Section 32 of the act made it the duty of first two cases were petitions for writs of every street railway company to keep in remandamus against the railroad company, pair, to the satisfaction of the superintendwhich petitions were demurred to, and the ent of streets, “the paving, upper planking, demurrers sustained. Of the three other or other surface material of the portions of cases, two were suits in equity, and were streets, roads, and bridges occupied by its brought by the city against the railroad tracks, and if such tracks occupy unpaved company, and were heard upon the bills and streets or roads (the company) shall, in addemurrers thereto, the court sustaining the dition, so keep in repair 18 inches on each demurrers; the fifth case was an action on side of the portion occupied by its tracks," contract originally brought by the city etc. against the railroad company, in the As the law then stood, the railroad comsuperior court, and heard upon demurrer to pany, on several different occasions, between the complaint, which was sustained and 1891 and 1893, made applications for and judgment ordered for defendant, from which was granted the privilege of extending the judgment plaintiff appealed to the supreme location of its tracks. On the 11th day of judicial court of the commonwealth. May, 1891, the defendant in error, upon apThe defendant in error is a street railroad plication, was duly granted an extension of corporation, organized and doing business its location for its tracks in certain streets under the laws of the state of Massachu- in the city of Worcester, which extension of setts, and it owned and operated in the city location was stated in the order or decree of of Worcester and in numerous outlying the board of aldermen to be granted "upon cities and towns a street railway system the following conditions ;” eight different parts of which had previously belonged to conditions then follow, among which isother similar corporations, and had been ac- “Second. That block paving shall be laid quired by the consolidated company in 1901, aná ‘maintained between the rails of its by the purchase of the franchises and prop-track, and for a distance of 18 inches outerties of such other companies under the side of said rails, for the entire distance covgeneral provisions of the street railway laws ered by this location.'” of the commonwealth. Under the general This order or decree was duly accepted in laws of the commonwealth, as they existed writing by the defendant in error, and its from 1891 to 1893, it was provided that a ' acceptance filed with the clerk of the city of Worcester. Other extensions of locations foregoing statement of facts, delivered the were applied for and granted during this opinion of the court: : time, some of which were upon the condition The defendant in error makes no objection or restriction that the paving should be be to the form in which the question to be detween the rails and outside thereof to the cided comes before us. Whether one or the street curb, and these conditions were ac- other action or proceeding is proper and apcepted and the acceptance duly filed in the propriate need not, therefore, be considered. city clerk's office. The contention on the part of the plaintiff Subsequently, and in 1898 (chap. 578 of in error is that, by virtue of the restrictions , the Massachusetts Laws of that year), pro- or conditions placed by or conditions placed by it upon granting the vision was made for a somewhat different various extensions of locations of the tracks system of taxation than that which pre- of the railroad company, and by the accept , railed at the time these several extensions of ance of the same by the company, a contract locations were granted and accepted by the was entered into between the city and the railroad company. It was provided by $ 11 railroad company, which could not be alof that act as follows: tered without the consent of both parties; “Sec. 11. Street railway companies shall and that as the city had never consented to not be required to keep any portion of the any alteration of the obligation of the railsurface material of streets, roads, and road company to make the repairs in the bridges in repair, but they shall remain sub- streets, as provided for in those restrictions ject to all legal obligations imposed in or conditions, the subsequent legislation conoriginal grants of locations, and may, as an tained in the act of 1898 impaired the obliincident to their corporate franchise, and gation of that contract, and was therefore without being subject to the payment of any void, as a violation of the Constitution of fee or other condition precedent, open any the United States. street, road, or bridge, in which any part of In the view we take of this subject it may their railway is located, for the purpose of be assumed, for the purpose of argument, making repairs or renewals of the railway, that the city of Worcester had power, under or any part thereof, the superintendent of the legislation of the state, to grant the streets or other officer exercising like author. right to extend the location of the railroad ity, or the board of aldermen or selectmen, company's tracks upon the restrictions or ' in any city or town where such are required, conditions, already mentioned. It may also issuing the necessary permits therefor.” be assumed, but only for the purpose of the After the passage of this act of 1898 the argument, that the restrictions or conditions railroad company consented and conformed contained in the orders or decrees of the to its requirements, and thereafter omitted board of aldermen, upon their acceptance by to make the repairs in the streets which had the company, became contracts between the been required of it at the time when its ex- city and the company. tended locations were granted, during the The question then arising is whether the period from 1891 to 1893. The city there. legislature, in the exercise of its general legafter sought by these various actions or pro-islative power, could abrogate the provisions ceedings to compel the street railway com- of the contract between the city and the pany to repair and maintain the surface of railroad company with the assent of the the streets as provided for by the law in latter, and provide another and a different force when the extended locations were given method for the paving and repairing of the and accepted. During the time that the streets through which the tracks of the railrailroad company had, since the passage of road company were laid under the permit of the act of 1898, omitted to make the repairs their extended location. We have no doubt provided for as a condition for the granting that the legislature of the commonwealth of its application for extended locations, the had that power. A municipal corporation is city had incurred expenses in renewing and simply a political subdivision of the state, repairing various portions of the pavements, and exists by virtue of the exercise of the because of the omission and refusal of the power of the state through its legislative derailroad company to do so, and one of these partment. The legislature could at any actions was brought to recover the expenses time terminate the existence of the corporathus incurred by the city in making such tion itself, and provide other and different repairs and renewing such pavement. means for the government of the district comprised within the limits of the former Alessrs. Arthur P. Rugg and John R. city. The city is the creature of the state. Thayer for plaintiff in error. East Hartford v. Hartford Bridge Co. 10 Messrs. Bentley W. Warren and low. 511, 533, 534, 13 L. ed. 518, 528. Clement R. Lamson for defendant in error. As is stated in United States v. Baltimors & O. R. Co. 17 Wall. 322, 329, 21 L. ed. 597, Mr. Justice Peckham, after making the '600, a municipal corporation is not only a part of the state, but is a portion of its gov- | appears by the best text writers upon the ernmental power. "It is one of its creatures, subject, and the great weight of judicial aumade for a specific purpose, to exercise with thority.” in a limited sphere the powers of the state. In Tippecanoe County v. Lucas, 93 U. S. The state may withdraw these local powers 108–114, 23 L. ed. 822–824, the question of of government at pleasure, and may, the validity of an act of the legislature was through its legislature or other appointed presented, and Mr. Justice Field, in deliverchannels, govern the local territory, as it ing the opinion of the court, said: governs the state at large. It may enlarge "Were the transaction one between the or contract its powers, or destroy its ex- state and a private individual, the invalidistence. As a portion of the state, in the ity of the act would not be a matter of exercise of a limited portion of the powers serious doubt. Private property cannot be of the state, its revenues, like those of the taken from individuals by the state except state, are not subject to taxation.” for public purposes, and then only upon In New Orleans v. Clark, 95 U. S. 644, compensation or by way of taxation; and 654, 24 L. ed. 521, 522, it was stated by Mr. any enactments to that end would be reJustice Field, in delivering the opinion of garded as an illegitimate and unwarranted the court, that exercise of legislative power. . But “A city is only a political subdivision of between the state and municipal corpora. the state, made for the convenient adminis. tions, such as cities, counties, and towns, the tration of the government. It is an instru- relation is different from that between the mentality, with powers more or less en- state and the individual. Municipal corlarged, according to the requirements of the porations are mere instrumentalities of the public, and which may be increased or re- state, for the convenient administration of pealed at the will of the legislature. In di- government; and their powers may be qualrecting, therefore, a particular tax by such ified, enlarged, or withdrawn at the pleasure corporation, and the appropriation of the of the legislature.” proceeds to some special municipal purpose, In Mt. Pleasant v. Beckwith, 100 U. S. the legislature only exercises a power 514, 25 L. ed. 699, it was held that, through its subordinate agent, which it could where no constitutional restriction is imexercise directly; and it does this, only in posed, the corporate existence and powers another way, when it directs such corpora- of counties, cities, and towns are subject to tion to assume and pay a particular claim the legislative control of the state creating not legally binding for want of some formal- them. ity in its creation, but for which the cor- In New Orleans v. New Orleans Water. poration has received an equivalent.” works Co. 142 U. S. 79, 35 L. ed. 943, 12 In Laranie County v. Albany County, 92 Sup. Ct. Rep. 142, it was also held that a U. S. 307, 23 L. ed. 552, it was held that municipal corporation was the mere agent public or municipal corporations were but of the state in its governmental character, parts of the machinery employed in carrying and was in no contract relations with its on the affairs of the state, and that the sovereign, at whose pleasure its charter may charters under which such corporations are be amended, changed, or revoked without the created may be changed, modified, or re-impairment of any constitutional obligation. pealed as the exigencies of the public service It was also therein held that such a corporaor the public welfare may demand; that tion, in respect of its private or proprietary such corporations were composed of all the rights and interests, might be entitled to inhabitants of the territory included in the constitutional protection. The Massachu- . political organization; and the attribute of setts courts take the same view of such a individuality is conferred on the entire mass corporation. Browne v. Turner, 176 Mass. of such residents, and it may be modified or 9, 56 N. E. 969. taken away at the mere will of the legis- Enough cases have been cited to show the lature, according to its own views of public nature of a municipal corporation as stated convenience, and without any necessity for by this court. In general it may be conthe consent of those composing the body ceded that it can own private property, not of a public or governmental nature, and It was said in that case that "public du- that such property may be entitled, as is ties are required of counties as well as of said, “to constitutional protection.” Proptowns, as a part of the machinery of the erty which is held by these corporations upstate; and, in order that they may be able on conditions or terms contained in a grant, to perform those duties, they are vested with and for a special use, may not be diverted certain corporate powers; but their func- by the legislature. This is asserted in Tiptions are wholly of a public nature, and they pecanoe County v. Lucas, 93 U. S. 115, 23 L are at all times as much subject to the will ed. 824, and in Mt. Hope Cemetery v. Boso of the legislature as incorporated towns, as ton, 158 Mass.. 509, 35 Am. St. Rep. 515, 33 politic. V. N. E. 695, the supreme court of Massachu. | road Company. Mass. Laws, 1861, chap. setts held that cities might have a private 148. These sections simply give the city of ownership of property which could not be Worcester the right, during the continuance wholly controlled by the state government. of the charter of the corporation, and after It seems, however, plain to us that the as- the expiration of ten years from the openserted right to demand the continuance of ing of any part of said road for use, to purthe obligation to pave and repair the streets, chase all its franchises, property, rights, etc. as contained in the orders or decrees of the That right is not affected by the legislation board of aldermen granting to the defendant in question, even assuming (which we do not the right to extend the locations of its for a moment intimate) that the act of 1898 ) tracks on the conditions named, does not affected the right of the city to make the amount to property held by the corporation, purchase under the sections above cited. which the legislature is unable to touch, We see no reason to doubt the validity of either by way of limitation or extinguish the act of 1898, and the judgments of the ment. If these restrictions or conditions Supreme Judicial Court and the Superior are to be regarded as a contract, we think Court of Massachusetts are, respectively, ufthe legislature would have the same right to firmed. terminate it, with the consent of the rail (196 U. S. 480) road company, that the city itself would have. These restrictions and conditions WILLIAM K. VANDERBILT et al., as were of a public nature, imposed as a means Executors, etc., of collecting from the railroad company part, or possibly the whole, of the expenses FERDINAND EIDMAN, as United States of paving or repaving the streets in which Collector of Internal Revenue. the tracks were laid, and that method of collection did not become an absolute prop War revenue act-inheritance tax-interest erty right in favor of the city, as against not vested in possession or enjoyment. the right of the legislature to alter or abol 1. The interest of a residuary legatee, condl. ish it, or substitute some other method with tioned ou his attaining a certain age, cannot the consent of the company, even though as be deemed taxable under the war revenue act to the company itself there might be a con- of June 13, 1898 (30 Stat. at L. 464, chap. tract not alterable except with its consent. 448, U. S. Comp. Stat. 1901, pp. 2307, 2308), If this contention of the city were held val $$ 29, 30, before the happening of the continid, it would very largely diminish the right gency, in view of the express provisions of those sections as to “possession or enjoyment” of the legislature to deal with its creature and “beneficial interest” and “clear value," in public matters, in a manner which the and of the absence of any express language legislature might regard as for the public exhibiting an intention to tax a mere techni. welfare. In Springfield v. Springfield Street cally vested interest in a case where the right R. Co. 182 Mass. 41, 64 N. E. 577, this ques to possession or enjoyment is subordinated to , an uncertain contingency. tion was before the supreme judicial court 2. A legacy not capable of being immediately of Massachusetts, and the contention of the possessed or enjoyed, and therefore not taxacity to the same effect as the plaintiff in er- ble under the war revenue act of June 13, ror contends in this case, was overruled. It 1898 (30 Stat. at L. 464, chap. 448, U. S. was therein held that the city acted in be Comp. Stat. 1901, pp. 2307, 2308), $$ 29, 30, half of the public in regard to these exten as. construed by the administrative officers prior to the amendatory act of March 2, 1901 sions of locations, and that the legislature (31 Stat. at L. 946, chap. 806, U. S. Comp. had the right to modify or abrogate the con- Stat. 1901, p. 2307), cannot be deemed to ditions on which the locations in the streets have been subjected to such taxation by the and public ways had been granted, after provision of the later act making the inheritsuch conditions had been originally imposed ance tas due and payable one year after the death of the testator, and requiring the exby it. The case at bar was decided at the ecutor to make return of the estate in his consame time as the Springfield Case (182 trol within thirty days after taking charge Mass. 49, 64 N. E. 581), and the proposition thereof,-especially in view of the legislative that the legislature had the power to free affirmance in the subsequent act of June 27, the company from obligations imposed upon 1902 (32 Stat. at L. 406, chap. 1160),* of the construction given to the original statute beit by the conditions in the grant of the ex fore the amendment. tended locations was adhered to, and the Springfield Case cited as authority for the [No. 206.] same. We concur in that view. There is no force in the contention that Argued October 13, 14, 1904. Decided Feb. the city of Worcester has a proprietary ruary 20, 1905. right in the property of the defendant in N A ute incorporating the Worcester Horse Rail. *U. S. Comp. St. Supp. 1903, p. 281. error, reserved to it under the original stat.10^States Circuit Court of Appeals for the 9 Second Circuit, presenting questions as to said residuary estate stand in the place and the taxability, under the war revenue act, stead of his brother Alfred G., and that if of the interest of a residuary legatee, con- Alfred G. shall die without issue before he ditioned on attaining a certain age. An attains the age of thirty years, then Reg. swered in the negative. inald C. shall receive the income from said estate until he attains the age of thirty Statement by Mr. Justice White: years, when he shall be put in possession of Cornelius Vanderbilt died in the city of one half of the residuary estate, and thereNew York on September 12, 1899, leaving a after Reginald C. shall receive the net inwill, which was admitted to probate, the come of the remaining one half of my estate, seventeenth clause of which provides as fol. and on arriving at the age of thirty-five lows: years he shall be put in possession of the “Seventeenth: All the rest, residue, and whole of said estate, and my said executors remainder of all the property and estate, shall hold said estate upon such trust, and I real, personal, and mixed, of every descrip- give and devise the same accordingly. If Altion, and wheresoever situated, of which I fred G. and Reginald C. shall both die before may die seized or possessed, or to which I being put into possession of said estate, and may be entitled at the time of my decease, without issue, I give whatever then remains including all lapsed legacies and the princi- of my residuary estate to my daughters pal of any annuities which may terminate, Gertrude and Gladys Moore, share and share and any part of my estate which may not alike; and if either of my said daughters be have been effectually devised or bequeathed, then dead leaving issue, her issue to take his or from any other source, I give, devise, and or her mother's share, per stirpes and not bequeath to my executors, hereinafter per capita; and in default of issue, the surnamed, and the survivors and survivor of vivor shall take the principal.” them, IN TRUST, to hold said estate, and in- This clause contains the only provisions vest and reinvest the same, and to collect in the will relating to or in any manner afthe rents, issues, income, and profits there- fecting the disposition of the residuary esfrom for the use of my son Alfred G., and to tate of the testator, and determining the exapply so much of said net income as may be tent and character of the interests therein. in their judgment advisable, to his support, All of the children of Cornelius Vandermaintenance, and education, and for the care bilt, named in the seventeenth clause of his and maintenance of his property during his will, were living at the time this suit was minority, and to accumulate any surplus in- brought. At the time of the death of come, such accumulations to be paid to him Cornelius Vanderbilt his son Alfred G. Vanwhen he arrives at the age of twenty-one derbilt was between twenty-two and twentyyears, and thereafter to pay the net income three years of age, and his son Reginald C. of said estate to him as received until he ar- Vanderbilt was between nineteen and twenty rives at the age of thirty years, when he years of age, and both were unmarried. shall be put in full possession of one half The appraised value of the residuary perthe portion of said estate to be set apart for sonal estate at the time of the testator's that purpose by my executors and survivors death was $18,972,117.46. of them. And upon further trust thereafter The right of Alfred G. Vanderbilt to the to pay to my said son, Alfred G., the income beneficial enjoyment, as provided in the will from the balance remaining of said estate until he became thirty years of age, was apuntil he shall arrive at the age of thirty-five praised at $5,119,612.43, and upon this sum years, when he shall be put in possession of the executors paid a death duty under $8 29 the balance of said trust estate, and the said and 30 of the act of June 13, 1898 (30 Stat. trustees shall be discharged from any and at L. 464, chap. 448, U. S. Comp. Stat. 1901, all liability and responsibility in respect pp. 2307, 2308), at the rate of 27 per cent, thereof. If my son Alfred G. should die be- the tax amounting to $115,191.28. After fore attaining the age of thirty-five years, payment of this amount, and subsequently leaving issue, such portion of the estate as to the passage, on March 2, 1901 (31 Stat. shall not then have come into his possession at L. 946, chap. 806, U. S. Comp. Stat. 1901, shall be divided by my executors into as p. 2307), of an amendment to the war revemany equal shares as he may leave children nue act of 1898, the commissioner of insurviving, and one share shall be held by my ternal revenue, considering that by that executors to the use of each such child or amendment Alfred G. Vanderbilt had bechildren until he or she shall attain the age come immediately liable for a tax on his a of twenty-one years, when it shall be paid to right to succeed to the whole residue if he such child; but if he shall die without child lived to the ages of thirty and thirty-five or children, or if none of his children shall years respectively, assessed a death duty attain majority, then it is my will that my my will that my based upon that hypothesis. In making this son Reginald C. shall in all respects, as to 'assessment, as by the mortality tables it was |
