There

in view its present existence and anticipated continuance. are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government are not concentrated in any one body of men, but are carefully distributed, with a view to being easily, cheaply, [*191] and intelligently exercised, and as far as possible by the persons more immediately interested.

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We have already seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to properly belong to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there must be reasons of State policy or dangers of local abuse to warrant the interposition.1

The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws any definite line of distinction be

1 66 It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other municipal corporations. And it would require strong reasons to satisfy us that it could have been the design of the framers of our constitution to take from the legislature a power which has been exercised in Europe by governments of all classes from the earliest history, and the exercise of which has probably done more to promote civilization than all other causes combined; which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions." State v. Noyes, 10 Fost. 292, per Bell, J. See also Tanner v. Trustees of Albion, 5 Hill, 121; Dalby v. Wolf, 14 Iowa, 228; State v. Simonds, 3 Mo. 414; McKee v. McKee, 8 B. Monr. 433; Smith v. Levinus, 8 N. Y. 472; People v. Draper, 15 N. Y. 532; Burgess v. Pue, 2 Gill, 11; New Orleans v. Turpin, 13 La. An. 56; Gilkeson v. The Frederick Justices, 13 Grat. 577; Mayor, &c., of New York v. Ryan, 2 E. D. Smith, 368; St. Louis v. Russell, 9 Mo. 503; Bliss v. Kraus, 16 Ohio, N. s. 55; Trigally v. Memphis, 6 Cold. 382; Durach's Appeal, 63 Penn. St. 491; State v. Wilcox, 45 Mo. 458; Jones v. Richmond, 18 Grat. 517; State v. Neill, 24 Wis. 149.

tween the powers which may be exercised by the State and those which must be left to the local governments.1 The municipalities must look to the State for such charters of government as the legislature shall see fit to provide; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the

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general principles with which we are familiar. The [*192] charter, or the general law under which they exercise.

their powers, is their constitution, in which they must show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.2

The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the State of that complete control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion. The rights and franchises of such a corpora

As to the common law affecting these corporate existences, and the effect of usage, see 2 Kent, 278, 279.

* Stetson v. Kempton, 13 Mass. 272; Willard v. Killingworth, 8 Conn. 254; Abendroth v. Greenwich, 29 Conn. 363; Baldwin v. North Branford, 32 Conn. 47; Webster v. Harwinton, ib. 131; Douglass v. Placerville, 18 Cal. 643; Lackland v. Northern Missouri Railroad Co. 31 Mo. 180; Mays v. Cincinnati, 1 Ohio, N. s. 268; Frost v. Belmont, 6 Allen, 152.

3 St. Louis v. Allen, 13 Mo. 400; Coles v. Madison Co., Breese, 115; Richland County v. Lawrence County, 12 Ill. 1; Trustees of Schools v. Tatman, 13 Ill. 27; Robertson v. Rockford, 21 Ill. 1; People v. Power, 25 Ill. 187; St. Louis v. Russell, 9 Mo. 503; State v. Cowan, 29 Mo. 330; McKim v. Odorn, 3 Bland, 407; Granby v. Thurston, 23 Conn. 416; Harrison Justices v. Holland, 3 Grat. 247; Brighton v. Wilkinson, 2 Allen, 27; Sloan v. State, 8 Blackf. 361; Mills v. Williams, 11 Ired. 558; Langworthy v. Dubuque, 16 Iowa, 271; Weeks v.

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tion, being granted for the purposes of the government, [* 193] can never become such vested rights as against the State that they cannot be taken away; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of contracts being violated.1 Restraints on the legislative power of control must be found in the constitution of the State, or they must rest alone in the legislative discretion.2 If the legislative action in these cases operates inju

Milwaukee, 10 Wis. 242; State v. Branin, 3 Zab. 484; Patterson v. Society, &c., 4 Zab. 385; Atchison v. Bartholow, 4 Kansas, 124; City of St. Louis v. Cafferata, 24 Mo. 94; People v. Draper, 15 N. Y. 532; Aspinwall v. Commissioners, &c., 22 How. 364. The legislature may in its discretion recall to itself and exercise so much of such powers as it has conferred upon municipal corporations as is not secured to them by the constitution. People v. Pinkney, 32 N. Y. 377. The creditors of a county cannot prevent the legislature reducing its limits, notwithstanding their security may be diminished thereby. Wade v. Richmond, 18 Grat. 583. This power is not defeated or affected by the circumstance that the municipal corporation was by its charter made the trustee of a charity; and in such case, if the corporation is abolished, the Court of Chancery may be empowered and directed by the repealing act to appoint a new trustee to take charge of the property and execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier Academy v. George, 14 La. An. 406; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 La. An. 665. But neither the identity of a corporation, nor its right to take property by devise, is destroyed by a change in its name, or enlargement of its area, or an increase in the number of its corporators. Girard v. Philadelphia, 7 Wal. 1. Changing a borough into a city does not of itself abolish or affect the existing borough ordinances. Trustees of Erie Academy v. City of Erie, 31 Penn. St. 515. Nor will it affect the indebtedness of the corporation, which will continue to be its indebtedness under its new organization. Olney v. Harvey, 50 Ill. 453.

This principle was recognized by the several judges in Dartmouth College v. Woodward, 4 Wheat. 518. And see People v. Morris, 13 Wend. 331: St. Louis v. Russell, 9 Mo. 507; Montpelier v. East Montpelier, 29 Vt. 12; Trustees of Schools v. Tatman, 13 Ill. 30; Brighton v. Wilkinson, 2 Allen, 27; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 La. An. 665; Mt. Carmel v. Wabash County, 50 Ill. 69.

2 "Where a corporation is the mere creature of legislative will, established for the general good, and endowed by the State alone, the legislature may, at pleasure, modify the law by which it was created. For in that case there would be but one party affected, the government itself, and therefore not a contract within the meaning of the constitution. The trustees of such a corporation would be the mere mandatories of the State, having no personal interest involved, and could not complain of any law that might abridge or destroy their agency." Montpelier Academy v. George, 14 La. An. 406. In Trustees of Schools v.

riously to individuals, the remedy is not with the courts. They have no power to interfere, and the people must be looked to, to right through the ballot-box all these wrongs.1 This is the general rule; and the exceptions to it are not numerous, and will be indicated hereafter.

Tatman, 13 Ill. 30, the court say: "Public corporations are but parts of the machinery employed in carrying on the affairs of the State; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general superintendence and control over them and their rights and effects, so that their property is not diverted from the uses and objects for which it was given or purchased." It is a lawful exercise of legislative authority upon the division of counties, towns, &c., to confer a part of the corporate property of the old corporation upon the new, and to direct the old body to pay it over to the new. Harrison v. Bridgeton, 16 Mass. 16; Bristol v. New Chester, 3 N. H. 524; Milwaukee Town v. Milwaukee City, 12 Wis. 93; Marshall Co. Court v. Calloway Co. Court, 3 Bush, 93. But it seems that this apportionment of property can only be made at the time of the division. Windham v. Portland, 4 Mass. 390; Hampshire v. Franklin, 16 Mass. 76. See Richland v. Lawrence, 12 Ill. S; Bowdoinham v. Richmond, 6 Greenl. 112. In the latter case, it was held that the apportionment of debts between an old town and one created from it was in the nature of a contract; and it was not in the power of the legislature afterwards to release the new township from payment of its share as thus determined. But the case of Layton v. New Orleans, 12 La. An. 515, is contra. See also Borough of Dunmore's Appeal, 52 Penn. St. 374, which in principle seems to accord with the Louisiana case. In Burns v. Clarion County, 62 Penn. St. 422, it was held the legislature had the power to open a settlement made by county creditors with the county treasurer, and to compel them to settle with him on principles of equity. See further Cambridge v. Lexington, 17 Pick. 222; Attorney-General v. Cambridge, 16 Gray, 247.

1 'The correction of these abuses is as readily attained at the ballot-box as it would be by subjecting it to judicial revision. A citizen or a number of citizens may be subtracted from a county free from debt, having no taxation for county purposes, and added to an adjacent one, whose debts are heavy, and whose taxing powers are exercised to the utmost extent allowed by law, and this, too, without consulting their wishes. It is done every day. Perhaps a majority of the people thus annexed to an adjacent or thrown into a new county by the division of an old one may have petitioned the legislature for this change; but this is no relief to the outvoted minority, or the individual who deems himself oppressed and vexed by the change. Must we, then, to prevent such occasional hardships, deny the power entirely?

"It must be borne in mind that these corporations, whether established over cities, counties, or townships (where such incorporated subdivisions exist), are never intrusted and can never be intrusted with any legislative power inconsistent or conflicting with the general laws of the land, or derogatory to those rights either of person or property which the constitution and the general laws guarantee. They are strictly subordinate to the general laws, and merely created to carry

[* 194]

*Powers of Public Corporations.

The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms; the latter are such as are necessary in order to carry into effect those expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant. Certain powers are also incidental to corporations, and will be possessed unless expressly or by implication prohibited. Of these an English writer has said: "A municipal corporation has at common law few powers beyond those of electing, governing, and removing its members, and regulating its franchises and property. The power of its governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated."2 But without being expressly empowered so to do, they may sue and be sued; may have a common seal; may purchase and hold lands [195] and other property for corporate purposes, and convey the same; may make by-laws whenever necessary to accomplish the design of the incorporation, and enforce the same by penalties; and may enter into contracts to effectuate the corporate purposes. Except as to these incidental powers, and which need not be, though they usually are, mentioned in the charter, the charter itself, or the general law under which they exist, is the measure of the authority to be exercised.

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And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict con

out the purposes of those laws with more certainty and efficiency. They may be and sometimes are intrusted with powers which properly appertain to private corporations, and in such matters their power as mere municipal corporations ceases." City of St. Louis v. Allen, 13 Mo. 414.

1 2 Kent, 278, note; Halstead v. Mayor, &c., of New York, 3 N. Y. 433; Hodges v. Buffalo, 2 Denio, 112; New London v. Brainerd, 22 Conn. 552; State v. Ferguson, 33 N. H. 424; McMillan v. Lee County, 3 Iowa, 311; La Fayette v. Cox, 5 Ind. 38; Clark v. Des Moines, 19 Iowa, 212; State v. Morristown, 33 N. J. 63; Beaty v. Knowler, 4 Pet. 162; Mills v. Gleason, 11 Wis. 470. In this last case, it was held that these corporations had implied power to borrow money for corporate purposes. And see also Ketcham v. Buffalo,"14 N. Y. 356. 2 Willcock on Municipal Corporations, tit. 769.

3

Angell and Ames on Corp. §§ 111, 239; 2 Kyd on Corp. 102; State v. Ferguson, 33 N. H. 430.