*

way to compensate them for the incidental loss. And in [* 238] many other cases the legislature properly exercises a similar power of control in respect to the corporate property, and may direct its partition and appropriation, in order to accommodate most justly and effectually, in view of new circumstances, the purposes for which it was acquired.

The rule upon the subject we take to be this: when corporate powers are conferred, there is an implied compact between the State and the corporators that the property which they are given the capacity to acquire for corporate purposes under their charter shall not be taken from them and appropriated to other uses. If the State grants property to the corporation, the grant is an executed contract, which cannot be revoked. The rights acquired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and cannot be taken away. Nevertheless if the corporate powers should be repealed, the corporate ownership would necessarily cease, and even when not repealed, a modification of those powers, or a change in corporate bounds, might seriously affect, if not altogether divest, the rights of individual corporators, so far as they can be said to have any rights in public property. And in other ways, incidentally as well as by direct intervention, the State may exercise authority and control over the disposition and use of corporate property, according to the legislative view of what is proper for the public interest and just to the corporators, subject only as we think to this restriction, that the purpose for which the property was originally acquired shall be kept in view, so far as the circumstances will admit, in any disposition that may be made of it.3

1 Bristol v. New Chester, 3 N. H. 533. And see ante, 232-234, notes. * If land is dedicated as a public square, and accepted as such, a law devoting it to other uses is void, because violating the obligation of contracts. Warren v. Lyons City, 22 Iowa, 351. As there was no attempt in that case to appropriate the land to such other uses under the right of eminent domain, the question of the power to do so was not considered.

• “That the State may make a contract with, or a grant to, a public municipal corporation, which it could not subsequently impair or resume, is not denied; but in such a case the corporation is to be regarded as a private company. A grant may be made to a public corporation for purposes of private advantage; and although the public may also derive a common benefit therefrom, yet the corporation stands on the same footing, as respects such grant, as would any body of per

This restriction is not the less applicable where corpo- [* 239] rate powers are abolished than it is in other cases; and

sons upon whom like privileges were conferred. Public or municipal corporations, however, which exist only for public purposes, and possess no powers except such as are bestowed upon them for public political purposes, are subject at all times to the control of the legislature, which may alter, modify, or abolish them at pleasure." Trumbull, J., in Richland County v. Lawrence County, 12 Ill. 8. "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." Trustees of Schools v. Tatman, 13 Ill. 30, per Treat, Ch. J. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier v. East Montpelier, 27 Vt. 704; Same v. Same, 29 Vt. 19; Benson v. Mayor, &c., of New York, 10 Barb. 223. See also City of Louisville v. University, 15 B. Monr. 642. In State v. St. Louis County Court, 34 Mo. 572, the following remarks are made by the court, in considering the cause shown by the county in answer to an application to compel it to meet a requisition for the police board of St. Louis: "As to the second cause shown in the return, it is understood to mean, not that there is in fact no money in the treasury to pay this requisition, but that as a matter of law all the money which is in the treasury was collected for specific purposes from which it cannot be diverted. The specific purposes for which the money was collected were those heretofore directed by the legislature; and this act, being a later expression of the will of the legislature, controls the subject, and so far as it conflicts with previous acts repeals them. The county is not a private corporation, but an agency of the State government; and though as a public corporation it holds property, such holding is subject to a large extent to the will of the legislature. Whilst the legislature cannot take away from a county its property, it has full power to direct the mode in which the property shall be used for the benefit of the county." Compare People v. Mahaney, 13 Mich. 433. In Darlington v. New York, 31 N. Y. 164, the complete control of the legislature over the corporate property of cities was asserted, and it was held competent to subject the city to liability for property destroyed by a riot. It will be observed that the strong expression of legislative power is generally to be found in cases where the thing actually done was clearly and unquestionably competent. In Payne v. Treadwell, 16 Cal. 233, this language is used: "The agents of the corporation can sell or dispose of the property of the corporation only in the way and according to the order of the legislature; and therefore the legislature may by law operating immediately upon the subject dispose of this property, or give effect to any previous disposition or attempted disposition. The property itself is a trust, and the legislature is the prime and controlling power, managing and directing the use, disposition, and direction of it." Quoted and approved in San Francisco v. Canavan, 42 Cal. 558. These strong and general expressions should be compared with what is said in Grogan v. San Francisco, 18 Cal. 590, in which the right of municipal corporations to constitutional protection in their property is asserted fully. The same

whatever might be the nature of the public property which the corporation had acquired, and whatever the purpose of the acquisition, the legislature, when by taking away the corporate authority it became vested with the control of the property, would be under obligation to dispose of it in such manner as to give the original corporators the benefit thereof, by putting it to the use designed, if still practicable, or to some kindred or equally beneficial use having reference to the altered condition of things. The obligation is one which, from the very nature of the case, must rest for its enforcement in great measure upon the legislative good faith and sense of justice; and it could only be in those cases where there had been a clear disregard of the rights of the original corporators, in the use attempted to be made of the property, that relief could be had through judicial action.

No such restriction, however, can rest upon the legislature in regard to the rights and privileges which the State grants to municipal corporations in the nature of franchises, and which are granted only as aids or conveniences to the municipality in effecting the purposes of its incorporation. These, like the corporate powers, must be understood to be granted during pleasure.1

right is asserted in People v. Bacheller, lately decided in the Court of Appeals of New York; People v. Mayor, &c., of Chicago, 51 Ill. 17; People v. Tappan, 29 Wis. 664; People v. Hurlbut, 24 Mich. 44, and very many others. See Dillon, Mun. Corp. § 39 et seq., and cases referred to in notes. And see Hewison v. New Haven, 37 Conn. 483, as to the distinction between the public or governmental character of municipal corporations, and their private character as respects the ownership and management of their own property.

1 East Hartford v. Hartford Bridge Co., 10 How. 535. On this subject, see c. 9, post. The case of Trustees of Aberdeen Academy v. Mayor, &c., of Aberdeen, 13 S. & M. 645, appears to be contra. By the charter of the town of Aberdeen in 1837, the legislature granted to it the sole power to grant licenses to sell vinous and spirituous liquors within the corporate limits thereof, and to appropriate the money arising therefrom to city purposes. In 1848 an act was passed giving these moneys to the Aberdeen Female Academy.. The act was held void, on the ground that the original grant was of a franchise which constituted property, and it could not be transferred to another, though it might be repealed. The case cites Bailey v. Mayor, &c., 3 Hill, 541, and St. Louis v. Russell, 9 Mo. 507, which seem to have little relevancy. Also, 4 Wheat. 663, 698, 699; and 2 Kent, 305, note, for the general rule protecting municipal corporations in their vested rights to property. The case of Benson v. Mayor, &c., of New York, 10 Barb. 223, also holds the grant of a ferry franchise to a municipal corporation to be irrevocable, but the authorities generally will not sustain this view. See post, p. 283, and note.

*Towns and Counties.

[* 240]

Thus far we have been considering general rules, applicable to all classes of municipal organizations possessed of corporate powers, and by which these powers may be measured, or the duties which they impose defined. In regard to some of these organizations, however, there are other and peculiar rules which require separate mention. Some of them are so feebly endowed with corporate life, and so much hampered, controlled, and directed. in the exercise of the functions which are conferred upon them, that they are sometimes spoken of as nondescript in character, and as occupying a position somewhere between that of a corporation and a mere voluntary association of citizens. Counties, townships, school districts, and road districts do not usually possess corporate powers under special charters; but they exist under general laws of the State, which apportion the territory of the State into political divisions for convenience of government, and require of the people residing within those divisions the performance of certain public duties as a part of the machinery of the State; and, in order that they may be able to perform these duties, vest them with certain corporate powers. Whether they shall assume those duties or exercise those powers, the people of the political divisions are not allowed the privilege of choice; the legislature assumes this division of the State to be essential in republican government, and the duties are imposed as a part of the proper and necessary burden which the citizens must bear in maintaining and perpetuating constitutional liberty. Usually their functions are wholly of a public nature, and there is no room to imply any contract between them and the State, in their organization as corporate bodies, except that which springs from the ordinary rules of good faith, and which requires that the property they shall acquire, by local taxation or otherwise, for the purposes of their organization, shall not be seized by the State, and appropriated * in other [* 241] ways. They are, therefore, sometimes called quasi corporations,2 to distinguish them from the corporations in general,

1 Granger v. Pulaski County, 26 Ark. 37; Scales v. Chatahoochee County, 41 Geo. 225.

* Riddle v. Proprietors, &c., 7 Mass. 186, 187; School District v. Wood, 13 Mass. 192; Adams v. Wiscasset Bank, 1 Greenl. 361; Denton v. Jackson, 2

which possess more completely the functions of an artificial entity. Chief Justice Parker, of Massachusetts, in speaking of school districts, has said: "That they are not bodies politic and corporate, with the general powers of corporations, must be admitted; and the reasoning advanced to show their defect of power is conclusive. The same may be said of towns and other municipal societies; which although recognized by various statutes, and by immemorial usage, as persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be maintained. by suits at law, yet are deficient in many of the powers incident to the general character of corporations. They may be considered, under our institutions, as quasi corporations, with limited powers, co-extensive with the duties imposed upon them by statute or usage, but restrained from the general use of authority which belongs to these metaphysical persons by the common law. The same may be said of all the numerous corporations which have been from time to time created by various acts of the legislature; all of them enjoying the power which is expressly bestowed upon them, and perhaps, in all instances where the act is silent, possessing, by necessary implication, the authority which is requisite to execute the purposes of their creation." "It will not do to apply the strict principles of law respecting corporations in all cases to these aggregate bodies which are created by statute in this Commonwealth. By the several statutes which have been passed respecting school districts, it is manifest that the legislature has supposed that a division of towns, for the purpose of maintaining schools, will promote the important object of general education; and this valuable object of legislative care seems to require, in construing their acts, that a liberal view should be had to the end to be effected." 1 Following out this view, the courts of the New England States have held, that when judgments are recovered against towns, parishes,

and school districts, any of the property of private owners [* 242] within * the municipal division is liable to be taken for their discharge. The reasons for this doctrine, and the custom upon which it is founded, are thus stated by the Supreme Court of Connecticut:

Johns. Ch. 325; Beardsley v. Smith, 16 Conn. 367; Eastman v. Meredith, 36 N. H. 296; Hopple v. Brown, 13 Ohio, N. s. 311; Commissioners of Hamilton Co. v. Mighels, 7 Ohio, N. s. 109; Ray County v. Bentley, 49 Mo. 236.

1 School District v. Wood, 13 Mass. 192.